§120 Constitutional Issues, Generally
Supreme Court vacates mandatory sentence for possessing child porn on supervised release. (120)(310) (800) Defendant pleaded guilty to possession of child pornography and was sentenced to prison followed by a term of supervised release. While on supervised release, defendant violated its conditions by possessing more child pornography. Under 18 U.S.C. § 3583(k), a court must impose a minimum of five years’ incarceration if a defendant violates supervised release by possessing child pornography. Defendant was sentenced to five years in prison. The Supreme Court held that the Fifth and Sixth Amendments bar a court without a jury from finding by a preponderance of the evidence that defendant committed a new offense warranting prison time. Justice Gorsuch announced the opinion of the Court. Justice Breyer wrote an opinion concurring in the judgment; Justice Alito dissented, in an opinion joined by the Chief Justice and Justices Thomas and Kavanaugh. U.S. v. Haymond, 139 S.Ct. ___, 588 U.S. __ (June 26, 2019).
Supreme Court to consider if “crime of violence” in 924(c) firearm statute is vague. (120)(280)(330)(540) Recent Supreme Court cases have struck down as unconstitutionally vague the “residual clauses” of the definitions of “crime of violence” in both 18 U.S.C. § 16(b) and the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B). There is a nearly identical “residual clause” in the definition of “crime of violence” in § 924(c)(3)(B), which makes it a crime to possess, use, or carry a firearm in connection with a crime of violence. On January 4, 2019, the Court granted certiorari to consider whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. U.S. v. Davis, __ U.S. __, 139 S.Ct. __ (Jan. 4, 2019).
Supreme Court holds guidelines are not subject to vagueness challenge. (120)(520)(540) Johnson v. U.S., 135 S.Ct. 2551 (2015) held that the residual clause in the definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(b), was void for vagueness. Defendants claimed that the identically-worded residual clause in §4B1.2(a) of the guidelines was likewise void for vagueness. In a decision by Justice Thomas, the Supreme Court held that the Sentencing Guidelines, including the residual clause in §4B1.2, are not subject to vagueness challenges under the Due Process Clause. Beckles v. U.S., __ U.S. __, 137 S.Ct. __ (Mar. 6, 2017).
Supreme Court to decide if definition of “aggravated felony” is unconstitutionally vague. (120)(340) An immigration judge determined that an alien was deportable and ineligible for cancellation of removal because his two state convictions for first-degree burglary each qualified as an “aggravated felony” under 8 U.S.C. §1101. The Ninth Circuit granted review on the ground that the relevant portion of the definition of “aggravated felony” in §1101(a)(43)(F) is unconstitutionally vague. On Sept. 29, 2016, the Supreme Court granted certiorari to decide whether, in light of Johnson v. U.S., 135 S.Ct. 2551 (2015), 18 U.S.C. §16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s deportation, is unconstitutionally vague. Lynch v. Dimaya, __ U.S. __, 137 S.Ct. __ (Sept. 29, 2016) (granting certiorari).
Supreme Court finds Speedy Trial Clause inapplicable to sentencing. (120)(750) After conviction, the defendant was jailed for 14 months awaiting sentencing. He claimed on appeal that the 14-month delay violated his rights under the Sixth Amendment Speedy Trial Clause. The Supreme Court, in a unanimous decision by Justice Ginsburg, held that the Speedy Trial Clause “detaches” when a defendant is convicted and does not apply to the period between conviction and sentencing. The Court noted that Federal Rule of Criminal Procedure 32.1 directs courts to “impose sentence without unnecessary delay.” Justices Thomas and Sotomayor filed concurring opinions. Betterman v. Montana, __ U.S. __,136 S. Ct. __ (May 19, 2016).
Supreme Court makes retroactive Johnson’s holding that ACCA “residual clause” is unconstitutionally vague. (120)(340)(520)(540)(880) The Armed Career Criminal Act, 18 U.S.C. §924(e) provides enhanced penalties if the defendant has three or more prior convictions for “a serious drug offense,” or a “violent felony.” In defining “violent felony,” the statute includes a residual clause—”or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B). In Johnson v. U.S., 135 S. Ct. 2551 (2015), the Supreme Court held that this “residual clause” was unconstitutionally vague. In the present case, a prisoner whose conviction became final before the decision in Johnson was handed down, filed a 28 U.S.C. §2255 motion arguing that Johnson should be applied retroactively. In a 7-1 opinion written by Justice Kennedy, the Supreme Court agreed, holding that Johnson announced a substantive rule that applies retroactively to cases on collateral review. Justice Thomas dissented. Welch v. U.S., 136 S. Ct. 1257 (April 18, 2016).
Supreme Court to decide if elements or means determines that offense is “violent felony.” (120)(340)(520) (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm who has three prior “violent felonies” is subject to a 15-year minimum mandatory sentence. The district court imposed the 15-year sentence, and the court of appeals affirmed. The Supreme Court granted certiorari to determine whether a predicate prior conviction under the ACCA must qualify under the elements of the offense, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense. Mathis v. U.S., __ U.S. __, 136 S. Ct. __ (Jan. 19, 2016) (granting certiorari).
Supreme Court to decide retroactivity of Johnson. (120)(340)(520)(540) Defendant was sentenced as an Armed Career Criminal under 18 U.S.C. § 924(e)(2), after the court found that his prior Florida robbery conviction was a “violent felony” under the ACCA’s “residual clause.” After his sentence was affirmed on appeal, he filed a 28 U.S.C. § 2255 motion arguing that his ACCA sentence was improper. His motion was denied, and the Eleventh Circuit denied a certificate of appealability. Thereafter, however, the Supreme Court, in Johnson v. U.S., 135 S. Ct. 2551 (2015), held that the ACCA’s residual clause is void for vagueness. On January 8, 2016, the Supreme Court granted defendant’s certiorari petition to decide (1) whether the district court erred when it denied relief on the § 2255 motion to vacate; and (2) whether Johnson announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. Welch v. U.S., __ U.S. __, 136 S.Ct. __ (Jan. 8, 2016) (granting certiorari).
Supreme Court to decide if delay in sentencing implicates Sixth Amendment. (120) On April 19, 2012, defendant pleaded guilty in state court to bail jumping, and he was sentenced in June 2013. At sentencing and on appeal, he argued that the delay in sentencing had prejudiced him. The Montana Supreme Court rejected his appeal. The Supreme Court will decide whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing phase of a criminal prosecution, protecting a defendant from inordinate delay in final disposition of his case. Betterman v. Montana, __ U.S. __, 136 S. Ct. __ (Dec. 4, 2015) (granting certiorari).
Supreme Court makes clear that sentencing enhancement is an element. (120) The Controlled Substances Act, 21 U.S.C. § 841(b), states that a defendant who distributes certain dangerous and addictive controlled substances must receive a 20-year mandatory minimum sentence if “death or serious bodily injury results from the use of such substance.” In a decision written by Justice Scalia, the Supreme Court held that because the “death results” enhancement increased the minimum and maximum sentences to which a defendant was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt. Justice Ginsburg, joined by Justice Sotomayor, concurred in the result. Burrage v. U.S., 571 U.S. __, 134 S.Ct. 881 (2014).
Supreme Court applies Apprendi to mandatory minimum sentences. (120) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that any fact that increases the defendant’s sentence must be alleged in the indictment and proved beyond a reasonable doubt. Subsequently, in Harris v. U.S., 536 U.S. 545 (2002), the Court held that Apprendi did not apply to facts that require imposition of a mandatory minimum sentence. Here, defendant was convicted of using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c), which carries a sentence of five years to life. At sentencing, the district court enhanced defendant’s sentence under § 924(c) because defendant had “brandished” the firearm. The Supreme Court, in a decision written by Justice Thomas, overruled Harris and held that “brandishing” the firearm is an element of the offense defined by § 924(c) and that a defendant’s sentence under that statute may be enhanced because he brandished a firearm only if that fact is alleged in the indictment and submitted to the jury. Justice Sotomayor, and two justices, concurred; Justice Breyer concurred in part and concurred in the judgment; Chief Justice Roberts dissented in an opinion joined by two justices; and Justice Alito dissented. Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013).
Supreme Court to decide if case upholding mandatory minimum sentences should be overturned. (120) In Harris v. U.S., 536 U.S. 545 (2002), the Supreme Court held that the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000)—that facts that increase a defendant’s sentence must be alleged in the indictment and proved to the jury—does not preclude a judge from finding facts to impose a mandatory minimum sentence. On October 5, 2012, the Supreme Court granted certiorari to determine whether Harris should be overruled. Like Harris, the case granted by the Court involved a finding that defendant brandished a firearm and therefore was subject to an increased sentence under 18 U.S.C. § 924(c). Alleyne v. U.S., __ U.S. __, 133 S.Ct. 420 (2012) (granting certiorari).
Supreme Court holds that Apprendi applies to fines. (120) Defendant, a corporation, was convicted of environmental crimes. The statute under which defendant was convicted allows imposition of a fine of not more than $50,000 for each day that the offense occurs. The Probation Office determined that defendant committed the offense for 762 days and therefore was liable for a fine of more than $38 million. Defendant objected that the jury’s verdict allowed the court to impose a fine for only one day. The district court found that defendant had violated the statute for 762 days and imposed a fine of $6 million. The Supreme Court, in a decision by Justice Sotomayor, held that its decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), applied to fines and that the district court had violated Apprendi by finding that defendant committed the offense on 762 days and was liable to a fine of $38 million. Justice Breyer, joined by Justice Kennedy and Alito, dissented. Southern Union Co. v. U.S., 567 U.S. __, 132 S.Ct. 2344 (2012).
Supreme Court to consider application of Apprendi to criminal fines. (120) Defendant was convicted under 42 U.S.C. § 6928(d), which authorizes “a fine of not more than $50,000 for each day of violation.” The Supreme Court granted certiorari to decide whether the Sixth Amendment, as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000), required that the jury rather than the district court determine the number of “day[s] of violation” before the court could impose a fine greater than $50,000 pursuant to Section 6928(d). Southern Union Co. v. U.S., __ U.S. __, 132 S.Ct. 756 (2011) (granting certiorari).
Supreme Court to decide retroactivity of Fair Sentencing Act. (120) On August 3, 2010, the Fair Sentencing Act became effective. The FSA lowered the penalties for certain cocaine-base offenses by increasing the threshold quantities of cocaine base that trigger certain mandatory-minimum sentences. The courts of appeals have divided over whether the FSA applies to defendants who committed their offenses before the effective date of the FSA. On November 28, 2011, the Supreme Court granted certiorari to decide if the FSA applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date. Hill v. U.S., __ U.S. __, 132 S.Ct. 759 (2011) (granting certiorari).
Supreme Court to decide if sentence enhancement for machinegun is offense element. (120) Under 18 U.S.C. § 924(c)(1), it is a crime to use or carry a firearm during and in relation to a crime of violence or drug-trafficking offense or to possess a firearm in furtherance of such an offense. When the firearm is a machinegun, § 924(c)(1)(B)(ii) requires imposition of a 30-year mandatory minimum sentence. The First Circuit held that to obtain the 30-year sentence, the indictment must allege, and the government must prove beyond a reasonable doubt to a jury, that the firearm the defendant used, carried, or possessed was a machinegun. The Supreme Court granted certiorari to decide whether the sentence enhancement to a 30-year minimum, when the firearm is a machinegun, is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence. U.S. v. O’Brien, __ U.S. __, 130 S.Ct. 49 (2009) (granting certiorari), and judgment affirmed, U.S. v. O’Brien, 130 S.Ct. 2167 (2010).
Supreme Court reiterates that district courts may not presume that a Guidelines sentence is reasonable. (120) At defendant’s sentencing for possession of more than 50 grams of crack with intent to distribute it, the district court calculated the Guidelines range, then stated that “the Guidelines are considered presumptively reasonable” and that absent a “good reason,” “the Guideline sentence is the reasonable sentence.” The court of appeals affirmed the sentence on the ground that sentences within the Guidelines are presumptively reasonable. In a per curiam summary reversal, the Supreme Court held that although an Appellate Court may apply a presumption of reasonableness to a within-guidelines sentence, it is impermissible for the district court to do so. Nelson v. U.S., 555 U.S. __, 129 S.Ct. 890 (2009).
Supreme Court allows judges to find facts allowing imposition of consecutive sentences. (120) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, any fact that increases a defendant’s maximum sentence (other than the fact of a prior conviction) must be found by a jury beyond a reasonable doubt. In Oregon, when a defendant is convicted of multiple offenses in the same proceeding, the trial judge may not impose consecutive sentences for multiple offenses unless the judge finds that the offenses do not arise from the same course of conduct. The Supreme Court, in a 5-4 decision authored by Justice Ginsburg, held that Apprendi does not bar a state from assigning to judges, rather than juries, the findings of fact necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses. Justice Scalia wrote the dissent. Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711 (2009).
Supreme Court to review firearm possession by person convicted of “misdemeanor crime of domestic violence.” (120) Under 18 U.S.C. § 922(g)(9), it is a crime for a person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. In U.S. v. Hayes, 482 F.3d 749 (4th Cir. 2007), the Fourth Circuit dismissed the indictment against the defendant because it failed to allege that the defendant’s state misdemeanor battery conviction was based on an offense that has, as an element, a domestic relationship between the offender and the victim. On March 24, 2008, the Supreme Court granted certiorari to decide whether, to qualify as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A), an offense must have as an element, a domestic relationship between the offender and the victim. U.S. v. Hayes, __ U.S. __, 128 S. Ct. __ (March 24, 2008) No. 07-608 (granting certiorari).
Supreme Court to decide if Apprendi bars consecutive sentences based on judicial fact-finding. (120) In State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), the Oregon Supreme Court held that the sentencing court—by imposing consecutive sentences based on its own findings and not based on jury findings—violated the defendant’s rights under the Sixth Amendment as construed by Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). On March 17 2008, the Supreme Court granted certiorari limited to the question of whether the Sixth Amendment, as construed by Apprendi and Blakely requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant. Oregon v. Ice, __ U.S. __, 128 S. Ct. __ (March 17, 2008) No. 07-901 (granting certiorari).
Supreme Court allows sentencing court to disagree with crack/powder disparity in guidelines. (120) When defendant was sentenced, the federal drug-trafficking statute, 21 U.S.C. § 841, and the Sentencing Guidelines required the same sentence for a defendant who dealt a quantity of crack cocaine and a defendant who dealt 100 times that quantity of powder cocaine. Defendant’s guideline range for dealing crack was 228 to 270 months. The district court stated that it disagreed with the 100-1 powder-to-crack ratio and sentenced defendant to 180 months. The Court of Appeals reversed, holding that a sentence outside the guidelines range is per se unreasonable when it is based on the sentencing disparity for crack and powder offenses. The Supreme Court held that the Court of Appeals erred in treating the crack/powder disparity as mandatory and that a district court may conclude that the crack/powder disparity yields a sentence greater than necessary to achieve the purposes of sentencing set forth in 18 U.S.C. § 3553(a). The court cautioned that closer appellate review may be in order when a judge varies from the guidelines based solely on the judge’s view that the guidelines range fails properly to reflect the § 3553(a) considerations. Kimbrough v. U.S., 552 U.S. 85, 128 S.Ct. 558 (2007).
Supreme Court clarifies post-Booker appellate review of sentences. (120) Defendant, convicted of participating in a drug-trafficking conspiracy, had a sentencing range under the advisory guidelines of 30-37 months. Citing defendant’s youth, his withdrawal from the conspiracy, and his post-offense rehabilitation, the district court imposed a sentence of probation. The Eighth Circuit found the sentence unreasonable. The Supreme Court reversed the Court of Appeals and affirmed the district court’s sentence. The Court held that (1) courts of appeals may not require extraordinary circumstances to impose a sentence outside the guidelines range; (2) courts may not apply a heightened standard of review to sentences outside the guideline range or employ a formula that uses the percentage of the departure as the standard for determining the strength of the justification necessary for the sentence imposed; (3) the guidelines remain the “initial benchmark” for sentencing, and “a major departure should be supported by a more significant justification than a minor one”; (4) courts must adequately explain the sentence imposed to allow meaningful appellate review; and (5) the “substantive reasonableness of the sentence is reviewed under an abuse-of-discretion standard.” In sum, “while the extent of the difference between a particular sentence and the recommended guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the guidelines range – under a deferential abuse of discretion standard.” Gall v. U.S., 552 U.S. 38, 128 S.Ct. 586 ( 2007).
Supreme Court says appellate presumption of reasonableness may be applied to within-guidelines sentence. (120) Under U.S. v. Booker, 543 U.S. 220 (2005), a court is to review a sentence under the advisory guidelines to determine whether it is unreasonable. The Supreme Court held that in reviewing for reasonableness, a court may apply a nonbinding presumption that a sentence within the advisory guidelines range is reasonable. The presumption applies only on appellate review; a district court may not presume that a sentence within the guidelines range should apply. Nor may a court of appeals adopt a presumption that sentences outside the guidelines are unreasonable. The court also held that applying a presumption of reasonableness to a within-guidelines sentence on appeal does not violate the Sixth Amendment. Rita v. U.S., 551 U.S. 338, 127 S.Ct. 2456 (2007).
Supreme Court holds that California determinate sentencing law violates Sixth Amendment. (120) For most offenses, California’s determinate sentencing law prescribes a lower term, a middle term, and an upper term. A court must sentence a defendant within the middle term unless it finds one or more facts in aggravation or mitigation. An element of the offense may not be an aggravating circumstance. The Supreme Court held that imposition of an upper term based on facts found by the trial judge violated the Sixth Amendment requirement announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), that a court may not impose a sentence above the statutory maximum based on a fact (other than the fact of a prior conviction) not found by a jury or admitted by the defendant. Cunningham v. California, 127 S.Ct. 856 (2007).
Supreme Court to clarify post-Booker approach to sentencing. (120) The Supreme Court granted certiorari to review two cases that raise several post-Booker sentencing issues. In the first, U.S. v. Claiborne, 439 F.3d 479 (8th Cir. 2006), the defendant was convicted of distributing crack cocaine. His sentencing range under the guidelines was 37-46 months, but the district court imposed a 15-month sentence because of the defendant’s age and lack of criminal history and the small quantity of drugs involved. The Eighth Circuit found that the 15-month sentence was unreasonable. The Supreme Court will determine whether the 15-month sentence was reasonable and whether it is inconsistent with Booker to require a sentence that constitutes a substantial variance from the guidelines to be justified by extraordinary circumstances. In the second case, U.S. v. Rita, 177 Fed. Appx. 357 (4th Cir. 2006), the district court imposed a within-guidelines sentence of 33 months on a defendant convicted of perjury, obstruction of justice, and making false statements. The court of appeals upheld the sentence. The Court will decide whether the sentence was reasonable, whether it is consistent with Booker to accord a presumption of reasonableness to a within-guidelines sentence, and whether, if guidelines sentences carry a presumption of reasonableness, a court must nevertheless analyze the factors in 18 U.S.C. § 3553(a) before imposing such a sentence. Claiborne v. U.S., 127 S.Ct. 551 (2006) (granting certiorari).
Supreme Court holds that Blakely error can be harmless. (120) In Blakely v. Washington, 542 U.S. 296 (2004), the Court held that imposition of a sentence under Washington’s Sentencing Guidelines based on facts found by the judge, not the jury, violated the Sixth Amendment. In another case from Washington, the Supreme Court held that Blakely errors are subject to harmless-error analysis. Washington v. Recuenco, 548 U.S. __, 126 S.Ct. 2546 (2006).
Supreme Court justices debate need to overrule prior-conviction exception to Apprendi. (120) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In dissenting from the denial of a petition for certiorari, two Supreme Court justices debated whether the prior-conviction exception to Apprendi – established in Almendarez-Torres v. U.S., 523 U.S. 224 (1998) – should be overruled. Justice Thomas argued that until Almendarez-Torres was overruled, “countless criminal defendants will be denied the full protection afforded by the Fifth and Sixth Amendments.” Justice Stevens agreed that Almendarez-Torres was “wrongly decided,” but argued that the prior-conviction exception “will seldom create any significant risk of prejudice to the accused” and that the “doctrine of stare decisis” provided a basis for maintaining the prior-conviction exception. Rangel-Reyes v. U.S., 547 U.S. __, 126 S.Ct. 2873 (2006) (denying certiorari).
Justice Thomas argues that prior convictions should be subject to Apprendi. (120) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that facts, other than prior convictions, that increase the defendant’s maximum sentence must be alleged in the indictment and proved to the jury beyond a reasonable doubt. In excepting prior convictions from the Apprendi rule, the Court preserved its ruling in Almendarez-Torres v. U.S., 523 U.S. 224 (1998). In a concurring opinion in a decision regarding the evidence necessary to establish that a prior offense qualifies as a predicate for an increased sentence under the Armed Career Criminal Act, Justice Thomas asserted that “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided” and argued that it should be reconsidered. Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254 (2005) (Thomas, J., concurring).
Supreme Court holds that Blakely applies to the guidelines and that guidelines are advisory. (120) In the long-awaited Booker decision, the Supreme Court held that the rule announced in Blakely v. Washington, 124 S.Ct. 2531 (2004), applies to the federal Sentencing Guidelines and therefore that sentences imposed by judges using the guidelines violate the Sixth Amendment right to a jury trial. In the remedial portion of the opinion, a different majority of the Court held that 18 U.S.C. § 3553(b), the statute that makes guideline sentencing mandatory, should be severed and that the guidelines would henceforth be advisory. The Court also held that the provisions allowing appeals of sentences by both the defendant and the government survived, but that 18 U.S.C. § 3742(e), which defines the standards of review for guideline sentences must also be severed. The Court instead held that courts of appeals should review sentences to determine whether they are “unreasonable.” U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).
Supreme Court says Washington Sentencing Guidelines trigger Apprendi. (120) Washington state law sets maximum terms of imprisonment for various classes of felonies. Other statutes limit the range of sentences within the maximum that a judge can impose for each offense, but allow for sentences above those ranges in “exceptional cases.” To impose an “exceptional” sentence, a judge must find that the case involves factors not taken into account in setting the sentencing range. Defendant, convicted of kidnapping, had a sentencing range of 49 to 53 months, but the court departed upward to a 90-month sentence because of the cruelty of defendant’s offense. In a 5-4 opinion, The Supreme Court held that defendant’s sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires that facts (other than the fact of a prior conviction), that increase the maximum penalty for a crime, be submitted to a jury and proved beyond a reasonable doubt. The Court held that the statutory maximum for purposes of this rule is the maximum sentence the judge may impose based on the facts found by the jury or admitted by the defendant. The majority expressed no opinion on the Federal Sentencing Guidelines, but Justice O’Connor, in a dissent joined by Justice Breyer on this point, said that “[i]f the Washington scheme does not comport with the Constitution, if is hard to imagine a guidelines scheme that would.” Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004).
Supreme Court to consider Apprendi’s application to state sentencing guidelines. (120) Under Washington state law, a court must impose a sentence within a standard sentencing range unless it finds facts sufficient to justify an exceptional sentence. Both the standard sentence and the exceptional sentence are within the maximum range determined by the state legislature. On October 20, 2003, the Supreme Court granted certiorari to determine whether a fact (other than a prior conviction) necessary for an upward departure from the statutory standard sentencing range must be proved beyond a reasonable doubt to a jury according to the procedures mandated by Apprendi v. New Jersey, 530 U.S. 466 (2000). Blakely v. Washington, 540 U.S. 965, 124 S.Ct. 429 (2003) (granting certiorari).
Supreme Court passes up opportunity to decide if Apprendi applies to juvenile adjudications. (120) In Apprendi v. New Jersey, 530 U.S. 460 (2000), the court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the proscribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Lower state and federal courts have reached different conclusions on whether Apprendi’s exception for prior convictions applied to prior juvenile adjudications. Although the Solicitor General urged the Court to grant certiorari to resolve this conflict, on January 13, 2003, the Court denied review in cases that raised the issue. Hitt v. Kansas, 537 U.S. 1104, 123 S. Ct. 962 (2003) (denying certiorari).
Supreme Court bars allocating fact-finding to capital sentencing judge. (120) In Arizona, a defendant may not be sentenced to death unless the trial judge finds that at least one aggravating circumstance exists and that no mitigating circumstances are sufficiently substantial to call for leniency. Dividing 7-2, the Supreme Court held that the Arizona scheme violates the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), because it allows the court, not the jury, to find the facts that increase the defendant’s maximum sentence from life in prison to death. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002).
Supreme Court holds that Apprendi does not apply to mandatory minimum sentences. (120) A divided Supreme Court held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires that any fact (other than the fact of a prior conviction) that increases the statutory maximum sentence for an offense be submitted to a jury and proved beyond a reasonable doubt, does not apply to facts that trigger mandatory minimum sentences. Thus, the Court held, the government need not allege and prove beyond a reasonable doubt the fact that a defendant charged with using or carrying a firearm during and in relation to a drug trafficking offense, “brandished” the firearm in order to receive the mandatory minimum seven-year sentence triggered by that finding. Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406 (2002).
Supreme Court holds indictment that is defective under Apprendi is subject to plain-error analysis. (120) In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Here, the Court made clear, as suggested in Apprendi, that “Apprendi facts” must be alleged in the indictment. In a unanimous opinion by the Chief Justice, the Court also found that defects in the indictment do not deprive the court of jurisdiction over a criminal case; instead, an omission from an indictment is subject to plain-error analysis. Applying the plain-error test, the Court found that an indictment’s failure to allege a drug quantity that increased the defendants’ sentence under 21 U.S.C. 841(b)(1)(B) was error and that it was “plain.” But, the court held, that error did not meet the fourth prong of the plain error test, which requires a showing that the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings,” because the evidence of drug quantity at trial was overwhelming and essentially uncontroverted. U.S. v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002).
Supreme Court says any fact that increases the sentence beyond the statutory maximum must be submitted to the jury. (120) In a 5-4 opinion written by Justice Stevens, the Supreme Court held that the Constitution requires that, except for the fact of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The court said it did not matter whether the additional fact was labeled an element of the offense or a mere “sentencing factor.” Applying this rule to the facts of the case, the court reversed the defendant’s New Jersey sentence, which had been increased based on a judge’s finding at sentencing by a preponderance of evidence that the crime was racially motivated. Justice O’Connor dissented, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer. Justice Breyer also filed a separate dissenting opinion joined by the Chief Justice. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).
Supreme Court holds that “machine gun” in § 924(c)(1) is an element of a separate offense, not a sentencing factor. (120) Under 18 U.S.C. § 924(c)(1), a defendant who uses or carries a firearm in relation to any crime of violence is sentenced to imprisonment for five years, “and if the firearm is . . . a machine gun . . . to imprisonment for thirty years.” In a unanimous opinion written by Justice Breyer, the Supreme Court held that § 924(c)(1) uses the word “machine gun” (and similar words) to state an element of a separate, aggravated crime. The court relied on the structure of the statute and the fact that courts have not typically used firearm types (such as “machine gun”) as sentencing factors where the use or carrying of the firearm is itself the substantive crime. Moreover, asking a jury, rather than a judge to decide whether a defendant used or carried a machine gun “would rarely complicate a trial or risk unfairness.” The legislative history favored this interpretation. Finally, the length and severity of the mandatory sentence “weighs in favor of treating such offense-related words as referring to an element.” Castillo v. U.S., 530 U.S. 120 (2000).
Supreme Court says carjacking statute defines three distinct offenses, not mere sentencing factors. (120) At the time of the offense, the carjacking statute, 18 U.S.C. § 2119, stated that a person possessing a firearm who “takes a motor vehicle … from the person or presence of another by force and violence or by intimidation … shall– (1) be … imprisoned not more than fifteen years …, (2) if serious bodily injury … results, be … imprisoned not more than twenty-five years …, and (3) if death results, be … imprisoned for any number of years up to life ….” The indictment made no reference to the numbered subsections and charged none of the facts mentioned in the latter two. Petitioner was told at the arraignment that he faced a maximum 15-year sentence. However, the district court imposed a 25-year sentence because one victim suffered serious bodily injury. On appeal, the Ninth Circuit affirmed, ruling that the bodily injury language in subsection (2) was a sentencing factor, not an element of an independent offense. The Supreme Court granted certiorari and reversed in a 5-4 opinion written by Justice Souter. The impression that the subsections in § 2119 are only sentencing factors is overcome by the fact that subsections (2) and (3) condition the increased sentences on further facts (injury, death) that seem as important as the elements in the principal paragraph (force, violence, intimidation). Justice Kennedy filed a dissenting opinion, joined by Chief Justice Rehnquist and Justices O’Connor and Breyer. Jones v. U.S. 526 U.S. 227, 119 S.Ct. 1215 (1999).
Supreme Court bars drawing adverse inferences when defendant “takes the Fifth” at sentencing. (120) Petitioner pled guilty to conspiracy and three substantive counts of selling cocaine within 1,000 feet of a school, reserving the right to contest the drug quantity. At sentencing, she put on no evidence and did not testify to rebut the government’s evidence, claiming the Fifth Amendment privilege against self-incrimination. Nevertheless, the judge “held it against” her that she did not testify at sentencing. The Supreme Court reversed, unanimously agreeing that defendant had the right to invoke the Fifth Amendment privilege at sentencing. Moreover, splitting 5-4, the majority held that the sentencing judge may not draw an adverse inference from the defendant’s silence. The majority expressed “no view” as to whether a defendant’s silence may be considered in determining acceptance of responsibility under the sentencing guidelines. Justice Scalia dissented on the latter point, joined by Chief Justice Rehnquist and Justices O’Connor and Thomas. Mitchell v. U.S., 526 U.S. 314, 119 S.Ct. 1307 (1999).
Supreme Court to decide if privilege against self-incrimination applies at sentencing. (120) The government argued that defendant had been a courier for the conspiracy and that her sentence should be calculated based on all the cocaine she carried during the course of the conspiracy. Defendant argued that she should be held accountable only for the cocaine in the three counts to which she pled guilty. The district court, relying partly on defendant’s failure to rebut the government’s evidence at sentencing, held defendant accountable for the larger cocaine quantity. The Supreme Court granted certiorari to decide whether a defendant who pleads guilty and reserves the right to contest the amount of cocaine for which she should be accountable has a Fifth Amendment right to refuse to testify at sentencing on the ground that her testimony would expose her to future prosecution. Mitchell v. U.S. 524 U.S. 925, 118 S.Ct. 2318 (1998) (granting certiorari).
Justice White would grant certiorari on acceptance of responsibility, preponderance of evidence and plea bargain issues. (120) Although the 5th Circuit remanded this case for resentencing, U.S. v. Kinder, 946 F.2d 362 (5th Cir. 1991), the defendant sought review by the Supreme Court, challenging (1) the burden of proof at sentencing, (2) district court’s reliance on conduct made the basis of counts dismissed pursuant to a plea bargain, and (3) the Fifth Amendment implications of the acceptance of responsibility guideline. Justice White dissented from the denial of certiorari, collecting the conflicting cases, and arguing that the court should resolve the conflicts among the circuits on each of these issues. Kinder v. U.S., 504 U.S. 946, 112 S.Ct. 2290 (1992) (White, J., dissenting from denial of certiorari).
Supreme Court upholds constitutionality of federal sentencing and forfeiture guidelines. (120) In an 8-1 decision written by Justice Blackmun, the Supreme Court upheld the new federal sentencing and forfeiture guidelines against a claim that they violate the doctrine of separation of powers. The Supreme Court upheld Congress’ placement of the Sentencing Commission in the judicial branch, and found no flaw in the requirement that federal judges serve on the Commission and share their authority with non-judges, nor in the fact that the President appoints members of the Commission and may remove them for cause. The court also rejected the argument that Congress delegated excessive legislative power to establish sentences to the Commission. Justice Scalia dissented at length. Mistretta v. U.S., 488 U.S. 351, 109 S.Ct. 647 (1989).
5th Circuit affirms despite failure to submit facts underlying mandatory minimum to jury. (120)(245) In Alleyne v. U.S., 570 U.S. 99 (2013), the Supreme Court held that facts that trigger mandatory minimum penalties must be submitted to the jury and proved beyond a reasonable doubt. Accordingly, in this case, the Fifth Circuit held that the district court erred in finding that defendant was subject to a mandatory minimum sentence based on a drug quantity found by the judge that had not been submitted to the jury. Nevertheless, defendant did not object at the time of sentencing, so the panel reviewed only for “plain error” and affirmed because the drug quantity evidence was “overwhelming.” U.S. v. Montemayor, __ F.4th __ (5th Cir. Dec. 19, 2022) No. 21-40162.
3d Circuit says judge, not jury, finds drug quantity within maximum for crime of conviction. (120)(254) Defendant was convicted of 24 counts of drug trafficking. At sentencing, the district court found him responsible for 1,000 grams of cocaine and 200 grams of heroin. The Third Circuit rejected defendant’s argument that only the jury could make these findings, holding that as long as defendant was sentenced within the statutory maximum for the crime of conviction, the district court could properly rely on the trial evidence to find the quantity of drugs attributable to defendant. U.S. v. Womack, __ F.4th __ (3d Cir. Nov. 29, 2022) No. 16-1682.
6th Circuit permits judge, after conviction, to allow jury to find prior convictions under 21 U.S.C. § 851. (120)(245) In a superseding opinion, the Sixth Circuit reaffirmed that although 21 U.S.C. § 851 provides for the judge, rather than the jury, to make findings about defendant’s prior convictions, the district court may, after trial, allow the jury to determine the existence and recency of defendant’s prior convictions. The Sixth Circuit held that nothing in § 851 or the Sixth Amendment prevented the district court from submitting these questions to the jury. U.S. v. Fields, __ F.4th __ (6th Cir. Nov. 23, 2022) No. 20-5521.
6th Circuit does not decide if requiring defendant to affirm or deny §851 priors violates Fifth Amendment. (120)(245) In a superseding opinion, the Sixth Circuit reaffirmed that defendant never asserted his right against self-incrimination before being asked to “affirm or deny” his prior convictions as required by 21 U.S.C. §851. Thus, it was unnecessary for the court to decide whether the statutory requirement violated the Fifth Amendment. U.S. v. Fields, __ F.4th __ (6th Cir. Nov. 23, 2022) No. 20-5521.
11th Circuit allows judge to find facts for supervised release violation despite Apprendi claim. (120)(800) The district court found that defendant violated his supervised release conditions for the third time, and sentenced him to 18 months, under 18 U.S.C. § 3583(e), which allows a district court to imprison a supervised release violator, Defendant argued that the statute was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it allowed the court to lengthen his prison sentence based on “judge-found facts.” Reviewing for plain error, the Eleventh Circuit found no authority for defendant’s argument, and therefore no plain error. U.S. v. Moore, __ F.4th __ (11th Cir. Jan. 13, 2022) No. 20-11215.
1st Circuit says failure to find § 851 prior conviction was final was not plain error. (120)(245) Defendant pleaded guilty to drug trafficking. Prior to sentencing, the government filed a 21 U.S.C. § 851 information alleging that defendant had a prior conviction. Accordingly, the district court found he was subject to a mandatory minimum sentence. For the first time on appeal, defendant argued that the district court failed to find that the prior conviction was final, as required by § 851. The First Circuit noted that defendant offered no reason to think that the sentence was not final. Therefore, the district court’s error was not “plain” and did not require reversal. U.S. v. Rabb, __ F.3d __ (1st Cir. July 16, 2021) (No. 20-1146.
8th Circuit finds seizing documents from defendant’s cell before sentencing did not violate 6th Amendment. (120)(750) Authorities searched defendant’s cell five days before sentencing. At the hearing, the prosecutor represented that no member of the prosecution team had reviewed the materials, and that any privileged material had been returned to defendant’s attorney. The district court offered to continue the hearing, but defendant decided to proceed, and argued that the seizure of the documents resulted in a fundamentally unfair proceeding and interfered with his Sixth Amendment right to counsel. The Eighth Circuit found that defendant had not shown any prejudice from the search. U.S. v. Sawatsky, __ F.3d __ (8th Cir. Apr. 16, 2021) No. 19-3172.
4th Circuit says treating downward variance defendants differently does not violate equal protection. (120)(197) At sentencing for drug trafficking, defendant’s guidelines range was 262 to 327 months, but the court varied down 180 months. Thereafter, Amendment 782 lowered his drug offense level by two levels, but defendant was not eligible for a reduction because his new guidelines range would have been 210 to 262 months, and § 1B1.10(b)(2) bars reducing a sentence below the new guidelines range. Defendant argued that treating him differently because he had received a downward variance violated the Equal Protection Clause. The Fourth Circuit rejected the argument, noting that lower sentences cause some defendants to cooperate with the government. U.S. v. Spruhan, __ F.3d __ (4th Cir. Mar. 2, 2021) No. 19-7650.
1st Circuit says revocation of release based on polygraph answers did not violate 5th Amendment. (120) (800) The district court revoked defendant’s supervised release after he admitted giving deceptive answers on mandatory polygraph examinations about viewing pornography on a friend’s computer. The First Circuit rejected defendant’s argument that this violated his Fifth Amendment privilege against self-incrimination, finding that defendant never invoked the privilege, and that his ability to invoke the privilege was not penalized. U.S. v. Rogers, __ F.3d __ (1st Cir. Feb. 19, 2021) No. 18-2097.
1st Circuit upholds revocation of release based on suspension from sex offender treatment. (120)(800) Based on defendant’s suspension from sex offender treatment, the district court revoked his supervised release. Defendant argued that the revocation violated due process because his suspension from treatment had not been accompanied by sufficient due process protections. The First Circuit found no error, because defendant had participated in a full evidentiary hearing after his suspension from sex offender treatment and before the revocation of his supervised release. U.S. v. Rogers, __ F.3d __ (1st Cir. Feb. 19, 2021) No. 18-2097.
4th Circuit rules privilege against self-incrimination does not apply to supervised release hearing. (120) (800) In revoking defendant’s supervised release, the district court relied on statements defendant made to his Probation officer. Defendant argued that the statements were made in violation of his Fifth Amendment privilege against self-incrimination. The Fourth Circuit held that the privilege against compelled self-incrimination does not apply to supervised release revocation hearings. U.S. v. Ka, __ F.3d __ (4th Cir. Dec. 2, 2020) No. 18-4913.
5th Circuit finds court did not punish defendant for going to trial. (120) At trial, defendant was convicted of health care fraud, and sentenced to 240 months—longer than any of her coconspirators. At sentencing, the court mentioned five times that defendant was the only one of her coconspirators to go to trial. Defendant argued that her sentence was punishment for exercising her right to a trial. The Fifth Circuit rejected the argument, finding that defendant was not similarly situated to her codefendants, the majority of whom cooperated. The district court also sat through a four-day trial and was more informed about defendant’s conduct. U.S. v. Gozes-Wagner, __ F.3d __ (5th Cir. Sept. 28, 2020) No. 19-20157.
5th Circuit allows court to hold defendant accountable for more drugs than jury found. (120)(254) At defendant’s trial for drug trafficking, the jury found defendant accountable for 50 grams of methamphetamine. However, at sentencing, the district court found (by a preponderance) that defendant was accountable for 176 kilograms. Defendant argued that by disregarding the jury’s finding, the court violated the Fifth and Sixth Amendments. The Fifth Circuit found that the Fifth and Sixth Amendments did not apply to the Sentencing Guidelines and upheld the district court’s sentence. U.S. v. Leontaritis, __ F.3d __ (5th Cir. Oct. 9, 2020) No. 19-40498.
10th Circuit reverses condition banning adult pornography without supporting reasons. (120)(580) Defendant pleaded guilty to receiving child pornography. At sentencing, the district court imposed condition of supervised release barring defendant from accessing any adult pornography. Defendant argued that the condition interfered with his First Amendment right to access legally protected materials. The Tenth Circuit vacated the condition for insufficient findings to support it. In particular, the district court failed to explain how defendant’s access to adult materials would aid in his rehabilitation or protect the public. U.S. v. Koch, __ F.3d __ (10th Cir. Oct. 9, 2020) No. 19-8034.
7th Circuit allows upward variance based on count dismissed as part of plea agreement. (120)(175)(780) At defendant’s sentencing for enticing a minor to send a sexually explicit video, the district court varied upward from the guidelines range based on a second count dismissed by the government as part of the plea agreement. The Seventh Circuit found the variance did not violate defendant’s rights to due process or a jury trial. U.S. v. Bridgewater, __ F.3d __ (7th Cir. Feb. 19, 2020) No. 19-2522.
11th Circuit says safety valve does not apply to Title 46 offenses, so no Fifth Amendment issue. (120)(246) Defendants were convicted at trial of transporting cocaine on the high seas in violation of 46 U.S.C. § 70506. Defendants argued that by forcing them to tell about their offense, the “safety valve” statute violated their Fifth Amendment privilege against self-incrimination. The Eleventh Circuit held that because Title 46 offenses are not eligible for the safety valve, it was unnecessary to address that concern. U.S. v. Cabezas-Montana, __ F.3d __ (11th Cir. Jan. 30, 2020) No. 17-14294.
5th Circuit okays different offense levels for receiving and possessing child pornography. (120)(310) Defendant pleaded guilty to receiving child pornography, in violation of subsection (a)(2)(B) of 18 U.S.C. § 2252A, and to possessing child pornography, in violation of subsection (a)(5)(B). Guidelines section 2G2.2 sets a base offense level of 18 for possession and 22 for receipt. The Fifth Circuit rejected defendant’s argument that this difference violates the separation-of-powers doctrine and the Due Process Clause. The panel found that Congress could have intended to punish receipt more severely in order to deter demand for child pornography, and prosecutorial decisions about which offense to prosecute are legitimately influenced by the penalties available for each offense. U.S. v. Ross, __ F.3d __ (5th Cir. Jan. 10, 2020) No. 18-20496.
7th Circuit says race cannot be considered in sentencing for child porn. (120)(310)(770) At defendant’s sentencing for child pornography offenses, defendant relied on the Child Pornography Offender Risk Tool and Correlates of Admission of Sexual Interest in Children to suggest that he was unlikely to commit future crimes because he is white. The district court rejected that argument. The Seventh Circuit upheld the district court’s “recoiling” from studies that factor in race and found that imposing different sentences based on race would violate the Equal Protection Clause. U.S. v. Grisanti, __ F.3d __ (7th Cir. Nov. 22, 2019) No. 19-1576.
7th Circuit upholds basing firearms sentence on white supremacist beliefs. (120)(330)(770) Defendant pleaded guilty to possession of a firearm by a felon. In a pre-sentence interview, defendant repeatedly stated that he believed in white supremacy and that he wished to go to Germany to “embrace his Nazi heritage.” The district court found his guidelines range was 51 to 63 months, and sentenced him to 48 months. The court noted that defendant had amassed 17 criminal convictions since he was 18 and that “a person holding [white supremacist views] has so little respect for the law.” The court also found that defendant’s white supremacist beliefs were evidence of his continued dangerousness. The Seventh Circuit found that although a person may not be punished solely for holding reprehensible idea, those ideas, when combined with a person’s history and character traits, can be relevant to sentencing. U.S. v. Schmidt, __ F.3d __ (7th Cir. July 17, 2019) No. 18-1259.
6th Circuit allows consideration of uncharged tax losses. (120)(175)(370) Defendant was convicted of tax offenses. At sentencing, the district court used uncharged tax losses to calculate the tax loss and restitution. Defendant argued that the Supreme Court’s decision in Nelson v. Colorado, 137 S.Ct. 1249 (2017), rendered the use of uncharged conduct unconstitutional. The Sixth Circuit found that Nelson did not apply because it simply held that when a defendant’s conviction has been overturned, he “should not be saddled with any proof burden” in his efforts to reclaim fines or restitution associated with the overturned conviction. U.S. v. Rankin, __ F.3d __ (6th Cir. July 12, 2019) No. 18-3345.
7th Circuit says judge, not jury, finds facts relating to safety-valve eligibility. (120)(246) Defendant pleaded guilty to drug trafficking. The district court denied a safety-valve reduction from the mandatory five-year minimum sentence because defendant’s DNA was found on a firearm recovered from his residence and therefore defendant was not eligible for the safety valve. On appeal, defendant argued that the Jury Clause of the Sixth Amendment barred the district court from finding that he could not obtain the safety valve because he possessed the firearm in connection with the drug-trafficking offense. The Seventh Circuit held that the Sixth Amendment does not bar judicial fact-finding of safety-valve eligibility. U.S. v. Fincher, __ F.3d __ (7th Cir. July 9, 2019) No. 18-2520.
8th Circuit says condition barring access to computers does not violate First Amendment. (120)(580) Defendant pleaded guilty to production of child pornography and commission of a felony offense while being required to register as a sex offender. The district court sentenced him to a lengthy period of incarceration to be followed by a period of supervised release. As a condition of supervised release, the district court directed that defendant “not possess or use a computer or have access to any online service without the prior approval” of Probation. Reviewing for plain error, the Eighth Circuit found that the supervised release condition did not violate the First Amendment because defendant had used a computer to commit his offenses. U.S. v. Perrin, __ F.3d __ (8th Cir. June 19, 2019) No. 18-1503.
10th Circuit finds vagueness challenge to supervised release condition not ripe for review. (120)(580) As a condition of supervised release for defendant’s conviction for possession of a firearm by a felon, the district court required defendant to notify others if he posed a risk to them if Probation required him to do so. The Tenth Circuit declined to consider defendant’s claim that the condition was void for vagueness in violation of the Due Process Clause because the condition may never be applied to defendant and factual development is necessary to consider defendant’s claim. U.S. v. Cabral, __ F.3d __ (10th Cir. June 10, 2019) No. 18-1263.
7th Circuit reaffirms that Apprendi does not require prior convictions to be proved at trial. (120)(245) Defendant was found guilty of drug trafficking. He was sentenced to life in prison because the government filed an information under 21 U.S.C. § 851 alleging that he had two prior felony drug convictions. On appeal, he argued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury had not found that he had two prior convictions. The Seventh Circuit reiterated that Apprendi does not require prior convictions to be alleged and proved at trial beyond a reasonable doubt. U.S. v. Pierson, __ F.3d __ (7th Cir. May 31, 2019) No. 18-1112.
6th Circuit, en banc, rejects using commentary to add Career Offender predicate offenses. (120)(180)(520) The Career Offender guideline’s definition of “controlled substance offense” in § 4B1.2 does not include attempts. However, the commentary states that a “controlled substance offense” includes “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” Without dissent, the en banc Sixth Circuit held that the Sentencing Commission cannot use the commentary to add crimes to the guideline’s definition of “controlled substance offense.” U.S. v. Havis, __ F.3d __ (6th Cir. June 6, 2019) No. 17-1552.
8th Circuit upholds supervised release condition barring access to the internet. (120)(580) After defendant pleaded guilty to receiving and distributing child pornography, the district court imposed a special condition of supervised release that barred him from maintaining or creating a user account on any social networking site that allows access to persons under the age of 18 or allows for the exchange of sexually explicit material. The Eighth Circuit upheld this condition against defendant’s First Amendment challenge, finding that supervised release is part of defendant’s sentence and that restrictions on post-custodial conduct are inapplicable. U.S. v. Carson, __ F.3d __ (8th Cir. May 10, 2019) No. 17-3589.
1st Circuit upholds supervised release condition requiring polygraph testing. (120)(580) At defendant’s sentencing for transporting child pornography, the district court imposed a condition of supervised release requiring defendant periodically to undergo polygraph testing. The condition stated that defendant’s supervised release could not be revoked based solely on his failure to pass a polygraph or failure to answer questions on Fifth Amendment grounds. The First Circuit upheld the condition, finding that it did not intrude on defendant’s Fifth Amendment rights and that any claim that the condition would violate his Fifth Amendment rights in the future if he were not given appropriate warnings was premature. U.S. v. Hood __ F.3d __ (1st Cir. Apr. 3, 2019) No. 18-1407.
1st Circuit finds no equal protection violation in sentencing wife to lower sentence than husband. (120) Defendant pleaded guilty to bank robbery and brandishing a firearm during and in relation to the bank robbery. Brandishing a firearm during a crime of violence carries a mandatory minimum of 84 months. His wife, who drove the getaway car, was charged only with bank robbery, and pleaded guilty to that offense. Defendant claimed that sentencing him to a greater sentence than his wife violated the equal protection clause because the sentencing decision was based on his sex. The First Circuit held that defendant and his wife were not similarly situated because defendant’s wife had not been charged with brandishing a firearm during a crime of violence. U.S. v. Blewitt, __ F.3d __ (1st Cir. Apr. 5, 2019) No. 18-1356.
4th Circuit says Fifth Amendment does not apply to supervised release revocation hearings. (120)(800) The district court revoked defendant’s supervised release based solely on his admission while in jail to using and selling methamphetamine. The Fourth Circuit held that defendant’s Fifth Amendment rights were not violated because a supervised release violation hearing is not a criminal proceeding within the meaning of the Fifth Amendment. The court also held that defendant’s statements alone, without corroboration, were sufficient to revoke his supervised release. U.S. v. Riley, __ F.3d __ (4th Cir. Apr. 3, 2019) No. 18-4783.
6th Circuit upholds loss based on testimony of government witness. (120)(219) At defendant’s sentencing for fraud offenses, the district court calculated the loss based on testimony from a government witness. Defendant did not object to the calculation of loss. The Sixth Circuit found no plain error under the Sixth Amendment in the district court’s calculation of loss or its imposition of a below-guidelines sentence. U.S. v. Roberts, __ F.3d __ (6th Cir. Mar. 28, 2019) No. 17-6512.
9th Circuit reverses sentence that was based solely on defendant’s admission that drugs were “reasonably foreseeable.” (120)(240)(275)(780) Defendant pleaded guilty to conspiracy to import methamphetamine. At the plea colloquy, defendant admitted that he conspired to import a controlled substance and that it was reasonably foreseeable that the substance was methamphetamine. He explained that he thought he was importing marijuana. At sentencing, the district court applied the guidelines for methamphetamine. The Ninth Circuit held that the Sixth Amendment barred sentencing defendant under the methamphetamine guidelines based only on his admission that it was reasonably foreseeable that the drug he imported was methamphetamine. Accordingly, the district court erred in imposing a sentence that exceeded the five-year statutory maximum for a conspiracy to import marijuana. U.S. v. Jauregui, __ F.3d __ (9th Cir. Mar. 22, 2019) No. 16-50429.
11th Circuit says “safety valve’s” exclusion of international drug traffickers does not violate equal protection. (120)(246) Under the “safety valve” in 18 U.S.C. § 3553(f) and § 5C1.2, a defendant convicted of a Title 21 offense can receive a sentence under the mandatory minimum. However, defendant was convicted of drug trafficking in international waters under the Maritime Drug Law Enforcement Act in Title 46, which is not listed in the “safety valve.” Defendant claimed that there was no rational basis to exclude Title 46 defendants from obtaining the safety valve and therefore that exclusion violated the Equal Protection Clause. The Eleventh Circuit found that Congress had legitimate reasons for excluding international drug traffickers from the safety valve and did not violate the Clause. U.S. v. Valois, __ F.3d __ (11th Cir. Feb. 12, 2019) No. 17-13535.
2d Circuit says prior convictions need not be proved to the jury. (120)(310) A jury found defendant guilty of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). At sentencing, the district court found that defendant had a prior conviction for possession of child pornography, and therefore imposed a mandatory minimum sentence of 120 months. Defendant argued that the court’s finding violated due process. Relying on precedent, the Second Circuit held that the prior conviction did not have to be submitted to the jury or found beyond a reasonable doubt in order for the court to impose the mandatory minimum. U.S. v. Boles, __ F.3d __ (2d Cir. Jan. 25, 2019) No. 17-1138.
4th Circuit, en banc, says §924(c) definition of “crime of violence” is unconstitutionally vague. (120)(330) A defendant who uses or carries a firearm during and in relation to a “crime of violence” is subject to enhanced penalties under 18 U.S.C. § 924(c)(3)(B). The definition of “crime of violence” in § 924(c)(3)(B) includes an offense “that by its nature, involves a substantial risk of physical force against the person or property of another.” The Supreme Court in Johnson v. U.S., 135 S.Ct. 2551 (2015), struck down similar language in the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii) as unconstitutionally vague. Sitting en banc, the Fourth Circuit held that the language in § 924(c)(3)(B) is also unconstitutionally vague. The court rejected the government’s argument that the court should look at the conduct underlying the alleged “crime of violence.” Instead, it used the categorical approach. U.S. v. Simms, __ F.3d __ (4th Cir. Jan 24, 2019) No. 15-4640.
8th Circuit upholds constitutionality of statute requiring use of earlier guidelines manual for resentencing. (120)(194) Under 18 U.S.C. § 3742(g)(1), a court must use the version of the guidelines in effect on the date of the previous sentence when resentencing a defendant on remand after a direct appeal. On resentencing, defendant argued that § 3742(g)(1) was unconstitutional because it was irrational and treated similarly situated defendants differently. The Eighth Circuit found that the statute was constitutional because it sought to achieve the goal of sentencing defendants under the guidelines in effect at their original sentencing. U.S. v. Binkholder, __ F.3d __ (8th Cir. Nov. 20, 2018) No. 17-2688.
3rd Circuit holds findings by a preponderance did not violate Apprendi. (120)(520) Defendants argued that the district court violated both the Fifth and Sixth Amendments in calculating their advisory guidelines ranges using a preponderance of the evidence standard to make additional findings of fact. They contended that the court should only have applied factual findings made beyond a reasonable doubt by the jury, and that the court’s actions violated the Supreme Court’s sentencing jurisprudence following Apprendi v. New Jersey, 530 U.S. 466 (2000). The Third Circuit disagreed. The district court did not violate Apprendi because its findings did not raise the defendants’ sentences above the statutory maximum. Under U.S. v. Grier, 475 F.3d 556 (3d Cir. 2007), Apprendi does not apply when a district court makes factual findings that affect the advisory guidelines but not the statutory maximum. U.S. v. Gonzalez, __ F.3d __ (3d Cir. Sept. 7, 2018) No. 16-1540.
4th Circuit reaffirms that fact of prior conviction can be decided by sentencing judge. (120)(245)(520) Defendant was convicted of drug charges. Based on his prior convictions, the district court sentenced defendant to a mandatory minimum sentence of 480 months. He argued that the statutory mandatory minimum sentences could not be applied to him because the fact of his prior convictions had neither been charged in the indictment nor found by the jury beyond a reasonable doubt. The Fourth Circuit found this argument was foreclosed by Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which held that a judge may find the fact of a defendant’s prior convictions, even when this increases the statutory maximum or minimum penalty. Defendant argued that Almendarez-Torres was “flatly inconsistent” with Alleyne v. U.S., which held “that facts that increase mandatory minimum sentences must be submitted to the jury.” 570 U.S. 99 (2013). However, Alleyne expressly exempted “the fact of a prior conviction” from its holding, leaving intact the “narrow exception” recognized in Almendarez-Torres. U.S. v. Bell, __ F.3d __ (4th Cir. Aug. 28, 2018) No. 16-4343.
6th Circuit says amendment reducing crack guidelines did not apply to career offender. (120)(192) (197) In 1996, defendant was convicted of drug and weapons charges, and sentenced to 35 years. He successfully moved for a sentence reduction under § 3582(c)(2) based on amendments to the crack guidelines. On appeal, the Sixth Circuit reversed, holding that as a career offender, defendant was not eligible for the reduction. On remand, the court re-imposed defendant’s original 35-year sentence. On appeal, defendant argued that the district court misread the appellate court opinion, and that the decision gave the district court “the opening to correct an illegality” through a new sentencing. The Sixth Circuit found no error. U.S. v. Charles, __ F.3d __ (6th Cir. Aug. 23, 2018) No. 18-5318.
9th Circuit remands where court may have punished defendant for going to trial. (120)(484) Defendant, the coach of a girls’ softball team, had sex with one of the players and was convicted of distributing sexually explicit photos to her. At sentencing, the district court referred five times to defendant’s decision to go to trial, stating that “[W]hat I look for is somebody who feels remorse before the trial, before you put this young girl through the—through the agony of testifying, having to testify to what went on, and then identify pictures of herself, personal pictures. So, I don’t see—I don’t see much remorse there.” These and other comments led a majority of the Ninth Circuit panel to remand for resentencing, noting that “the district court appears to have increased [defendant’s] sentence … based on [defendant’s] decision to go to trial.” Judge Rawlinson dissented. U.S. v. Hernandez, __ F.3d __ (9th Cir. July 10, 2018) No. 13-10428.
6th Circuit finds it unnecessary to decide whether jury must decide individual’s scope of conspiracy. (120)(245)(275) The jury found that defendant’s conspiracy involved 500 grams or more of cocaine and 280 grams or more of cocaine base. Citing U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998), defendant argued that it was improper to sentence him to a mandatory life sentence under 21 U.S.C. §841(b)(1)(A) without a jury finding as to the drugs attributable to his individual participation. The Sixth Circuit rejected this argument in U.S. v. Robinson, 547 F.3d 632 (6th Cir. 2008), but the government argued that Robinson was inconsistent with U.S. v. Swiney, 203 F.3d 397 (6th Cir. 2000), because Swiney held that the drug quantity must be individualized. The Sixth Circuit found no need to decide this issue, because the quantity of cocaine and crack cocaine attributable to defendant was sufficient to support his mandatory life sentence. U.S. v. Young, 847 F.3d 328 (6th Cir. 2017).
7th Circuit says mandatory minimum sentence did not violate separation of powers. (120)(245) Defendant pled guilty to drug conspiracy charges and was sentenced to 151 months. He argued on appeal that the mandatory minimum sentence in 21 U.S.C. §841(b)(1)(A)(ii) violated the separation-of-powers doctrine, by granting prosecutors sole discretion to decide whether to pursue charges that carry mandatory minimum sentences, thus stripping the judicial branch of sentencing discretion. The Seventh Circuit disagreed, noting that it had rejected a similar argument in U.S. v. Nigg, 667 F.3d 929 (7th Cir. 2012). The panel also noted that the district court went above the mandatory minimum sentence of ten years, exercising its discretion to sentence defendant to 12 years and seven months. U.S. v. Syms, 846 F.3d 230 (7th Cir. 2017).
9th Circuit reiterates that date of removal must be proved beyond reasonable doubt. (120)(340) In a prosecution for illegal reentry under 8 U.S.C. §1326, a defendant’s sentence rises from two to twenty years if defendant was removed from the U.S. after committing an “aggravated felony.” The Ninth Circuit reiterated that because the date on which the defendant was removed increases the penalty, it must be submitted to the jury and proved beyond a reasonable doubt. The court distinguished the date of removal from the fact of conviction, which, the Supreme Court has held, is not a fact that has to be proved beyond a reasonable doubt. U.S. v. Martinez, __ F.3d __ (9th Cir. Mar. 10, 2017) No. 15-50205.
9th Circuit rejects 6th Amendment challenge to enhanced mandatory minimum drug sentence. (120) (245) If the government files an information alleging the defendant’s prior drug convictions under 21 U.S.C. §851, the defendant is subject to an enhanced mandatory minimum sentence. Defendant argued that §851 violated his Sixth Amendment right to a jury trial. The Ninth Circuit found that the fact of a prior conviction is not an element that must be proved to a jury beyond a reasonable doubt. U.S. v. Rodriguez, __ F.3d __ (9th Cir. Mar. 14, 2017) No. 15-50096.
9th Circuit finds that leader role need not be proved beyond a reasonable doubt. (120)(430) Under §3B1.1, a district court may increase a defendant’s offense level if the court finds that defendant was a leader of criminal activity. The Ninth Circuit reiterated that the adjustment under §3B1.1 did not affect the statutory minimum or maximum sentence and therefore need not be submitted to a jury and proved beyond a reasonable doubt. U.S. v. Rodriguez, __ F.3d __ (9th Cir. Mar. 14, 2017) No. 15-50096.
S. Ct. to decide whether “residual clause” of career offender guideline is unconstitutionally vague. (120) (520) In U.S. v. Beckles, 616 Fed.Appx. 415 (11th Cir. 2015), the Eleventh Circuit denied an application to file a §2255 motion challenging a career offender sentence. Petitioner argued that the “residual clause” of the careert offender guideline, §4B1.2, was unconstitutionally vague in light of Johnson v. U.S., 135 S. Ct. 2551 (2015), which struck down identical language in the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii). The Eleventh Circuit found this argument foreclosed by circuit precedent holding that the vagueness doctrine does not apply to advisory sentencing guidelines. On June 27, 2016, the Supreme Court granted certiorari to review this ruling. Beckles v. U.S., __ U.S. __ 136 S. Ct. 2510 (June 27, 2016) (granting certiorari).
8th Circuit says facts used to deny safety valve relief need not be proved to jury. (120)(246) The district court found defendant was not eligible for safety valve relief under 18 U.S.C. §3553(f) because he possessed firearms in connection with his drug offense, and therefore the court imposed a mandatory minimum 120-month sentence under 21 U.S.C. §841(b)(1)(A). The Supreme Court in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013), held that any fact that establishes or increases a mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt. The Eighth Circuit rejected defendant’s argument that Alleyne requires the government to prove that he possessed a firearm beyond a reasonable doubt. Facts that make a defendant ineligible for the safety valve do not create or increase a mandatory minimum—the safety valve simply allows for relief from a mandatory minimum in certain circumstances. U.S. v. Leanos, __ F.3d __ (8th Cir. July 11, 2016) No. 15-3248.
8th Circuit cross-reference to murder guideline did not violate right to jury trial. (120)(240) Defendant pled guilty to drug trafficking. Section 2D1.1(d)(1) provides a cross-reference to §2A1.1 if a victim died under circumstances that would constitute first-degree murder, and it would result in a greater offense level. Based on a pending state murder charge, the district court applied the cross-reference to §2A1.1, which increased defendant’s base offense level from 32 to 43. Defendant argued for the first time on appeal that the use of the cross-reference violated his Sixth Amendment right to trial by jury, because the sentence could not lawfully be imposed based only on the facts admitted in his guilty plea. The Eighth Circuit found no plain error. Given the discretion available to the district courts, and the statutory maximum terms of life imprisonment, it was not obvious that a 300-month sentence would be substantively unreasonable for defendant’s two drug-trafficking convictions standing alone. U.S. v. Briggs, __ F.3d __ (8th Cir. Apr. 12, 2016) No. 15-1215.
7th Circuit says Alleyne rule about facts that increase mandatory minimum is not retroactive. (120) Four years after defendant was sentenced, the Supreme Court in Alleyne v. U.S., 133 S.Ct. 2151 (2013), held that any fact that increases a defendant’s statutory mandatory minimum sentence must be charged in the indictment and proved beyond a reasonable doubt. Defendant filed a 28 U.S.C. §2255 a motion, arguing that the judge’s criminal history findings had increased his statutory minimum term of imprisonment. The Seventh Circuit found Alleyne was not helpful to defendant. First, facts about criminal history are generally exempt from the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000), that facts that increase the maximum penalty must be charged and proved at trial. More importantly, the Supreme Court has not held that Alleyne applies retroactively to cases on collateral review. Until it does so, a defendant cannot claim the benefit of Alleyne in a collateral §2255 motion. Davis v. U.S., __ F.3d __ (7th Cir. Mar. 15, 2015) No. 14-3019.
7th Circuit says prior convictions need not be submitted to, or found by jury. (120)(245)(504) Defendant was convicted of distributing of 1,000 grams or more of heroin, with a mandatory minimum sentence of ten years under 21 U.S.C. §841(a)(1). After trial, the district court found that defendant had two prior felony drug convictions, which increased his mandatory minimum sentence to life. Defendant argued that he was entitled to have the jury decide whether he had two prior drug convictions. The Seventh Circuit disagreed, even though the Sixth Amendment, generally requires submitting to the jury any fact that increases the mandatory minimum sentence. U.S. v. Alleyne, __ U.S. __, 133 S. Ct. 2151 (2013). However, in Almendarez–Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that enhancements based on prior convictions are not subject to the Sixth Amendment requirement for a jury determination. U.S. v. Lomax, __ F.3d __ (7th Cir. Mar. 8, 2016) No. 14-2811.
5th Circuit vacates unpaid restitution due to delay between remand and resentencing. (120)(610) In 2003, defendant was sentenced to 46 months in prison and three years of supervised release for bank theft. In 2005, the Fifth Circuit vacated defendant’s sentence and remanded for resentencing. Due to a clerical oversight, defendant was never informed that his sentence was vacated. He completed his 46-month sentence and term of supervised release, and made payments of $9,517.35 in partial satisfaction of a restitution order. In 2014, defendant filed a motion to dismiss the indictment, but the district court rejected the motion, and reimposed the original sentence, with the practical effect that defendant remained responsible for the amount remaining on the restitution award. The Fifth Circuit vacated the unpaid portion of his restitution, finding the extraordinary eight year delay between the time the court vacated his sentence and the time the district court re-sentenced him violated his Sixth Amendment rights. In light of the extreme delay, defendant’s lack of fault for the delay, and the completion of most of his sentence, defendant was presumptively prejudiced. Judge Haynes dissented. U.S. v. Washington, __ F.3d __ (5th Cir. Feb. 1, 2016) No. 14-10623.
6th Circuit reverses where judge violated 5th Amendment by relying on defendant’s failure to testify. (120) (740) Defendant was convicted by a jury of being a felon in possession of a firearm after he obtained a handgun for a confidential informant. The district court sentenced him to 63 months, at the top of the guideline range. It cited two reasons: (1) defendant advanced a “fantastic” claim (that law enforcement had doctored an audio tape of the firearm transaction); and (2) defendant did not testify in support of that claim. The Sixth Circuit vacated the sentence, holding that (a) the district court plainly erred by relying on defendant’s decision not to testify; and (b) the court also violated defendant’s Sixth Amendment right to subject the government’s case to meaningful adversarial testing by punishing him for raising a “fantastical” claim. By relying on his failure to testify, the district judge effectively punished defendant for exercising his Fifth Amendment right against self-incrimination. The Sixth Amendment claim was closer, but the panel ultimately concluded that the court erred when it sentenced defendant for raising a “fantastic” claim. U.S. v. Cabrera, __ F.3d __ (6th Cir. Jan. 22, 2016) No. 14-5572.
8th Circuit says Alleyne did not apply retroactively on collateral review. (120)(245)(880) Defendant pled guilty to drug charges, and was sentenced to a mandatory minimum ten years. At the time of sentencing, judges were permitted to find, by a preponderance of the evidence, any fact that increased the mandatory minimum sentence. See Harris v. U.S., 536 U.S. 545 (2002). After defendant’s appeal became final, Harris was overruled by Alleyne v. U.S., 570 U.S. __, 133 S. Ct. 2151 (2013), which held that any fact that increases the mandatory minimum sentence must be submitted to a jury and found beyond a reasonable doubt. In a § 2255 petition, defendant argued that she was entitled to re-sentencing under Alleyne because (1) it was plain error to apply the preponderance standard; (2) Alleyne should apply retroactively; and (3) she was entitled to effective assistance of certiorari counsel. The Eighth Circuit rejected all of these arguments. First, the plain error standard is intended for use on direct appeal, not on collateral attack. Second, every other circuit to consider this issue has concluded that Alleyne did not apply retroactively on collateral review. Alleyne did not announce a watershed rule of criminal procedure that “’alter[ed] our understanding of the bedrock procedural elements’ of the adjudicatory process.” Finally, states are not obligated to provide counsel for certiorari petitioners. Ross v. Moffitt, 417 U.S. 600 (1974). Walker v. U.S., __ F.3d __ (8th Cir. Jan. 14, 2016) No. 14-3700.
11th Circuit says Johnson is not retroactive; denies request for successive § 2255 petition. (120)(540)(880) Defendant sought permission to file a second or successive petition under 28 U.S.C. § 2255, arguing that Johnson v. U.S., 135 S. Ct. 2551 (2015), created a new rule of constitutional law that was previously unavailable and that the Supreme Court has made retroactive to cases on collateral review. See 28 U.S.C. § 2255(h). Johnson held that one provision of the ACCA, the so-called “residual clause,” was unconstitutionally vague. Defendant argued that his prior convictions for Florida strong arm robbery fell under the now unconstitutional residual clause, and thus, he no longer had three predicate convictions required for a sentence under the ACCA. The Eleventh Circuit rejected defendant’s request for a successive writ under § 2255, since it had previously held in a published opinion that the Supreme Court had not made the new rule on which defendant relied retroactive for purposes of collateral review. See In re Rivero, 797 F.3d 986 (11th Cir. 2015). Judge Martin dissented. In re Franks, __ F.3d __ (11th Cir. Jan. 6, 2016) No. 15-15456-G.
1st Circuit finds Alleyne error harmless, given “overwhelming” evidence of drug quantity. (120)(245) Defendant was indicted on charges stemming from two sales of crack cocaine. The indictment did not specify the precise drug amounts involved, stating only that each count “involved five grams or more of a mixture and substance” containing cocaine base. Prior to sentencing, defendant challenged the applicability of the statutory mandatory minimum, arguing that attributing 28 grams or more of crack cocaine to him would entail the use of a fact not charged in the indictment. This argument was foreclosed by Harris v. U.S., 536 U.S. 545 (2002), which held that a fact not charged in an indictment could trigger a mandatory minimum sentence. While this case was pending on appeal, the Supreme Court overruled Harris in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013). The First Circuit found “no question” that an Alleyne error occurred, since the drug quantity was not specified in the indictment. However, the error was harmless. See U.S. v. Harakaly, 734 F.3d 88 (1st Cir. 2013). There was “overwhelming evidence of the requisite drug types and quantities.” The evidence that the offense involved 28 grams or more of crack was uncontested. At the change-of-plea hearing, defendant admitted that he had engaged in the charged transactions, and the second sale alone involved 42.5 grams. U.S. v. McIvery, __ F.3d __ (1st Cir. Nov. 20, 2015) No. 12-1257.
5th Circuit finds Apprendi and Alleyne inapplicable where no offense carried mandatory minimum. (120) For the first time on appeal, defendant objected to various sentencing enhancements based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. U.S., 133 S. Ct. 2151 (2013). In Apprendi, the Supreme Court held that facts that increase the statutory maximum penalty for an offense must be submitted to the jury and proved beyond a reasonable doubt. Alleyne extended this holding to facts that would require a mandatory minimum sentence. The Fifth Circuit found that neither case applied here, because none of the offenses carried mandatory minimums, and the sentence did not exceed the statutory maximum. Neither Apprendi nor Alleyne apply to facts that increase the sentencing guidelines. U.S. v. Stanford, __ F.3d __ (5th Cir. Oct. 29, 2015) No. 12-20411.
11th Circuit holds Johnson vagueness doctrine does not apply to advisory guidelines. (120)(330)(520) Defendant received an enhanced sentence under §2K2.1(a)(2) based on the court’s finding that his two prior convictions for burglary of an unoccupied dwelling were “crime[s] of violence” under §4B1.2(a)(2). Defendant argued that the residual clause of §4B1.2(a)(2) was unconstitutionally vague in the light of the Supreme Court’s decision in Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015). Johnson held that the residual clause of the Armed Career Criminal Act was unconstitutionally vague. The definition of “violent felony” under the ACCA is nearly identical to the definition of “crime of violence “under the guidelines, and both definitions include an identical residual clause that encapsulates crimes that “present[ ] a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B); U.S.S.G. §4B1.2(a)(2). The Eleventh Circuit held that the vagueness doctrine did not apply to the advisory guidelines. By its terms, Johnson was limited to criminal statutes that define elements of a crime or fix punishments. The advisory guidelines do neither. U.S. v. Matchett, __ F.3d __ (11th Cir. Sept. 21, 2015) No. 14-10396.
9th Circuit finds definition of “crime of violence” in 18 U.S.C. §16(b) void for vagueness. (120)(340)(504) (540) In Johnson v. U.S., 135 S. Ct. 2551 (2015), the Supreme Court found that the Armed Career Criminal Act, 18 U.S.C. §924(e), was void for vagueness to the extent it relied on a definition of “violent felony” that included any felony that “involves conduct that presents a serious potential risk of physical injury to another.” The Ninth Circuit held that 18 U.S.C. §16(b) was likewise void for vagueness in stating that a “crime of violence” includes any felony that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in committing the offense.” Dimaya v. Lynch, __ F.3d __ (9th Cir. Oct. 19, 2015) No. 11-71307.
1st Circuit finds no Alleyne violation where court based sentences on guidelines, not mandatory minimums. (120)(245) The district court found defendants responsible for drug quantities that subjected them to 20-year mandatory minimums, although neither the court nor the parties mentioned that mandatory minimum at sentencing. The guidelines called for a sentence of 360 months to life, but the district court sentenced both defendants to 300 months. Defendants argued for the first time on appeal that because the court, rather than the jury, made drug-quantity findings that subjected them to mandatory minimums, their sentences violated Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013). The First Circuit found no Alleyne error, because the court based its sentence exclusively on the guidelines, rather than the mandatory minimums. In discussing its drug-quantity findings, the court framed the question as one that solely affected the guidelines inquiry. Neither defendant could show the necessary prejudice to sustain their claim. U.S. v. Rose, __ F.3d __ (1st Cir. Sept. 18, 2015) No. 13-2460.
D.C. Circuit reverses sentences imposed before Booker made the guidelines advisory. (120) Defendants participated in a massive drug organization that sold crack and other drugs, and committed numerous murders and other violent crimes. They were sentenced to life in prison under the mandatory sentencing guidelines in effect before the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005). Under Booker, the guidelines became advisory. The D.C. Circuit found that two defendants, who raised Sixth Amendment objections in the district court, were entitled to resentencing under the advisory guidelines. Two other defendants did not raise the Sixth Amendment issue below, but were still entitled to a Booker remand to determine whether the district court would impose more favorable sentences under the advisory guidelines. The panel upheld the life sentence for the last defendant because he was convicted of continuing criminal enterprise, and received a statutorily mandated life sentence, which did not depend on the sentencing guidelines. U.S. v. Bostick, __ F.3d __ (D.C. Cir. June 26, 2015) No. 04-3074. XE “U.S. v. Bostick, __ F.3d __ (D.C. Cir. June 26, 2015) No. 04-3074.”
3rd Circuit, en banc, reverses firearms sentence for Alleyne error. (120)(330) Defendant was sentenced for brandishing a firearm during and in relation to a crime of violence, which carries a seven-year mandatory minimum. However, the jury only convicted him of using or carrying a firearm during and in relation to a crime of violence, which has a five-year mandatory minimum. Defendant was never charged with brandishing. The Third Circuit upheld the sentence, but the Supreme Court remanded for further consideration in light of its recent decision in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013). Alleyne held that brandishing a firearm was a separate, aggravated offense from using or carrying a firearm, and that the aggravated offense must be found by a jury beyond a reasonable doubt. The Third Circuit, on rehearing en banc, held that the error was a sentencing error, rather than a trial error, and that it was not harmless. Defendant’s sentence would have been different if he had been sentenced for using or carrying, rather than brandishing. Defendant was sentenced to an extra two years as a result of the Alleyne error. U.S. v. Lewis, __ F.3d __ (3d Cir. Sept. 16, 2015) No. 10-2931 (en banc).
8th Circuit applies cross-reference to murder guideline based on a preponderance. (120)(330) Defendant was convicted of being a felon in possession of ammunition. Guideline § 2K2.1(c)(1) provides a cross-reference if the defendant transferred a firearm or ammunition with knowledge that it would be used in connection with another offense. The district court applied the cross-reference to the first degree murder guideline, § 2A1.1, and sentenced him to 120 months. The Eighth Circuit upheld the use of the cross-reference, rejecting defendant’s argument that the Supreme Court’s decisions in Alleyne, Apprendi, and Blakely required the jury to find evidence supporting the sentencing enhancements beyond a reasonable doubt. There was sufficient evidence that defendant transferred the ammunition to her son and that death occurred. The court heard testimony linking defendant’s transfer of ammunition to several homicides. The court found that (1) defendant made the purchases for her son, at his request, and with his money, and (2) when defendant gave her son the 9mm ammunition, she knew that he had killed three others with the 12–gauge ammunition, and that it was more likely than not that he planned to kill another with the 9mm ammunition. The court properly concluded, by a preponderance of the evidence, that ammunition purchased by defendant was transferred to her son, resulting in four deaths. U.S. v. Jenkins, __ F.3d __ (8th Cir. July 6, 2015) No. 14-2844. XE “U.S. v. Jenkins, __ F.3d __ (8th Cir. July 6, 2015) No. 14-2844.”
9th Circuit holds government need not prove type and quantity of drug to trigger mandatory minimum. (120)(245) Defendant pleaded guilty to importing 4.65 kilograms of methamphetamine into the U.S., an offense that carries a 10-year mandatory minimum. At sentencing, he argued that under recent Supreme Court decisions, the government had to prove that he knew the exact drug type and quantity he was transporting for the 10-year mandatory minimum to apply. The district court rejected this argument, and the Ninth Circuit affirmed. The court held that the Supreme Court’s decisions in Alleyne v. U.S., 133 S. Ct. 2151 (2013), and Flores-Figueroa v. U.S., 556 U.S. 646 (2009), did not alter the long-standing rule that the government is not required to prove that the defendant illegally imported a specific controlled substance or quantity into the U.S. U.S. v. Jefferson, __ F.3d __ (9th Cir. June 26, 2015) No. 13-50647.
10th Circuit allows court to find greater drug quantity than was found by jury. (120)(260) At issue was whether Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013), allows a district court to increase a defendant’s drug sentence based on finding a greater drug quantity than the jury found. The Tenth Circuit held the Alleyne does not bar such a judicial finding, as long as the court’s finding does not increase the statutory sentencing range. Here, the court properly treated the jury’s drug quantity as an element in setting defendant’s statutory range (0 to 30 years), and only used its own drug quantity finding in choosing a 17-year sentence within the statutory range. This was permissible. U.S. v. Cassius, __ F.3d __ (10th Cir. Jan. 27, 2015) No. 13-1367.
1st Circuit bars empaneling sentencing jury on remand to remedy Alleyne error. (120) Under Alleyne v. U.S., 133 S.Ct. 2151 (2013), if the distribution of drugs is proven beyond a reasonable doubt to a jury to have resulted in a death, a defendant will face a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b). However, if the government does not meet that burden before conviction, a defendant will face a different mandatory minimum – either 10 years, 5 years, or no minimum, depending on drug type and quantity. When, as here, there is Alleyne error resulting in a mandatory minimum sentence based on judicial findings on a lesser standard of proof, the circuit courts usually have remanded for resentencing. Here, the prosecutor asked the court to permit the prosecution on remand to empanel a sentencing jury to allow the government to prove beyond a reasonable doubt that a death resulted from the defendant’s drug dealing. The First Circuit held that the government’s proposed course of action was foreclosed on the facts of the case, was unfair, and would raise troubling double jeopardy questions that could be avoided by denying the request. U.S. v. Pena, 742 F.3d 508 (1st Cir. 2014).
1st Circuit limits Alleyne to judicial fact-finding that affects mandatory minimum or statutory maximum. (120) Defendant was convicted of illegally distributing cocaine base. His indictment did not allege any amount of cocaine base, and the jury did not make a drug quantity finding. At sentencing, the district court found by a preponderance of the evidence that defendant was responsible for 280 grams of cocaine base. Defendant argued that the use of the preponderance standard violated Alleyne v. U.S., 133 S.Ct. 2151 (2013), which requires a jury to find, beyond a reasonable doubt, any fact that requires imposing a statutory minimum penalty. The First Circuit found Alleyne inapplicable, ruling that despite Alleyne, judges retain discretion to find facts that do not trigger a mandatory minimum punishment or alter a statutory maximum. Such facts may be continue to be found by the sentencing court based upon a preponderance of the evidence. This was such a case. U.S. v. Doe, 741 F.3d 217 (1st Cir. 2013).
1st Circuit rejects Apprendi challenge where mandatory minimum imposed did not exceed statutory maximum. (120) Defendant was convicted of conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(A)(1) and 846. He argued that the drug quantity finding should have been made by the jury, not by the district judge, citing Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The First Circuit rejected the claim, ruling that the maximum sentence allowed by the jury’s verdict was 20 years. At sentencing, the district court found by a preponderance of the evidence that five or more kilograms of cocaine were attributable to defendant, so it imposed the mandatory minimum sentence of 10 years. Because the 10-year sentence did not exceed the statutory maximum, defendant’s Apprendi-based attack failed. U.S. v. Diaz-Arias, 717 F.3d 91 (1st Cir. 2013).
1st Circuit says facts for firearm increase need not to be proven beyond reasonable doubt. (120) Defendant was convicted of being a felon in possession of a firearm. The district court applied a four-level enhancement under § 2K2.1(b)(6)(B) for possessing a firearm “in connection with another felony offense.” The First Circuit rejected defendant’s claim that U.S. v. O’Brien, 130 S.Ct. 2169 (2010), required the facts underlying this enhancement to be proved beyond a reasonable doubt. O’Brien reiterated that elements of a crime that increase the penalty beyond the prescribed statutory limit must be proved beyond a reasonable doubt. It reaffirmed, however, that sentencing factors affecting a judge’s discretion within a statutorily prescribed range may be proved at sentencing by a preponderance of the evidence. Here, the district court remained bound by the applicable statutory maximum of 120 months. The enhancement did not increase the prescribed range of penalties beyond that maximum. U.S. v. Leahy, 668 F.3d 18 (1st Cir. 2012).
1st Circuit examines sentence under departure analysis where district court applied this standard to impose non-guideline sentence. (120) The district court sentenced defendant shortly after Booker was decided, but before the First Circuit’s subsequent developments in caselaw on the application of Booker. The district court used the departure framework as a gauge of the reasonableness of the sentence to be imposed. However, it should have determined the appropriateness of a downward or upward departure, and then decided whether the guideline sentence comported with the sentencing factors set forth in 18 U.S.C. § 3553(a). Here, the court turned to those statutory factors before doing the upward departure guidelines analysis. Thus, the First Circuit reviewed the sentence under the guidelines departure analysis. Because the court relied on several inappropriate grounds for departure, the court remanded for resentencing, without determining whether the sentence as a whole was substantially longer than necessary to meet the factors underlying 18 U.S.C. § 3553(a). U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).
1st Circuit upholds court’s refusal to impose below-guideline range sentence. (120) The district court found that defendant was subject to a mandatory minimum sentence of 180 months because he was a career offender under U.S.S.G. § 4B1.1(a) and an armed career criminal under 18 U.S.C. § 924(e)(1). He also had a guideline range of 188 to 235 months’ imprisonment. The court considered the possibility of imposing a below-guideline sentence because defendant’s parents were drug addicts who had served time in prison during his youth. The court found that these “tragic” circumstances did not absolve defendant of blame for his crime, and ultimately imposed a 188-month sentence, at the bottom of the advisory guideline range and eight months longer than the minimum sentence mandated by § 924(e)(1) and U.S.S.G. § 4B1.1(a). The First Circuit affirmed. First, the district court did not improperly treat the guideline as mandatory. The court considered both parties’ arguments, and concluded that neither side offered a persuasive reason for imposing a non-guideline sentence, and that a sentence at the low end of the guideline range was warranted. The court did not require an “extraordinary” showing to warrant a below-guideline sentence. Rather, the court found there were no “clearly persuasive reasons” for such a sentence. The sentence was reasonable. The court permissibly considered defendant’s childhood in its sentencing calculus, but found that “a tragic childhood does not absolve the defendant of blame” and that, under the circumstances, defendant’s childhood was not a ground for a below guideline sentence. U.S. v. Rivera, 448 F.3d 82 (1st Cir. 2006).
1st Circuit holds that nine-year sentence for drug dealer was not unreasonable given his history of violence. (120) Defendant pled guilty to two counts of possessing and distributing crack cocaine, and received a nine-year sentence, which was three-and-one-half years below the bottom of the advisory guideline range. Defendant nonetheless appealed the sentence as unreasonably high because of various mitigating circumstances, primarily, his multiple serious medical problems. The First Circuit upheld the sentence as reasonable, finding the district court gave adequate consideration to defendant’s medical problems. The court found that defendant’s medical condition was “obviously a serious situation,” and this was the court’s primary rationale for imposing a sentence below the guideline sentencing range. However, the court felt that other statutory factors, including the public’s need to be protected from defendant’s “demonstrably violent personality,” warranted a “substantial sentence.” The court also expressed skepticism that defendant’s medical condition would prevent him from continuing his lifelong pattern of domestic violence, and discredited defendant’s argument that his forced sobriety while incarcerated would cure his lifetime alcohol abuse. U.S. v. Caraballo, 447 F.3d 26 (1st Cir. 2006).
1st Circuit holds that variance to 8 times maximum guideline range was unreasonable. (120) Defendant was convicted of using a forged immigration document to try to enter the U.S. Although his guideline range was 0-6 months, the district court imposed a 48-month sentence. The First Circuit reversed, finding the court’s explanation for such a large variation to be inadequate. The fact that defendant had previously been deported from the U.S. was accounted for by the two-level enhancement in § 2L2.2(b)(1). The second factor cited by the court, defendant’s arrest in 1991 and the outstanding bench warrant, was also insufficient to support the increase. The guidelines contain a policy statement that permits a court to consider prior significant adult criminal not resulting in a criminal conviction, but prohibits courts from departing based solely on a defendant’s arrest record. U.S. v. Zapete-Garcia, 447 F.3d 57 (1st Cir. 2006).
1st Circuit finds plain error in mandatory application of guidelines where court sympathized with defendant and expressed frustration with long drug sentences. (120) The district court erred in sentencing defendant because it believed the Sentencing Guidelines were binding and sentenced defendant accordingly. The First Circuit remanded for resentencing, finding “some chance” that the court might have imposed a different sentence under the advisory guidelines regime. First, the court sentenced defendant to the minimum guideline sentence, which, while not dispositive, was still highly relevant. The court also stated that the drug sentences it was routinely called upon to impose were “off the chart,” perhaps indicating a concern that the guidelines recommendations failed in some cases to take into account relevant mitigating circumstances. This, combined with the court’s apparent sympathy for the defendant and its stated hope for defendant’s rehabilitation, was sufficient to carry the “relatively undemanding burden” a defendant must meet for resentencing under U.S. v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). U.S. v. Aitoro, 446 F.3d 246 (1st Cir. 2006).
1st Circuit holds that substantial downward variance was unreasonable. (120) Defendant pled guilty to six counts of crack distribution and one count of conspiring to sell crack. His guideline range was 100-125 months, but the district court sentenced defendant to 46 months’ imprisonment, followed by six years of supervised release. The First Circuit ruled that the variance was unreasonable under the circumstances. The offense was serious and defendant’s record was unpromising. Although the court considered defendant’s youth, these offenses were not youthful aberrations, and defendant’s criminal career had progressed fairly steadily toward more serious crimes. The court found defendant’s involvement in this offense was limited; however, based on his prior crimes, the present offenses were merely a further extension of his criminal history. The fact that defendant was not a leader was already accounted for in the guidelines. Finally, while defendant may have committed some of the crimes to support a drug habit, his history of relapse after undergoing drug treatment “[did] not speak well for his prospect of future self-control, whatever the cause for the relapse may have been.” U.S. v. Smith, 445 F.3d 1 (1st Cir. 2006).
1st Circuit refuses to require below-guideline sentence simply because another defendant received lesser sentence. (120) Defendant requested a below-guideline sentence based on his claim that another judge in the same district court gave a shorter sentence to another defendant who had been involved in the same criminal conduct as defendant. However, defendant conceded in the district court that his criminal record was more serious than the co-defendant. Moreover, the judge in the other case found that the co-defendant’s career offender status overstated her criminal history. While Congress did intend to reduce unwarranted disparity in sentencing for like crimes and criminals, the aim was a national uniformity, looking to how most cases of the same kind were treated. Usually little is to be learned about national uniformity by pointing to the sentence of one other defendant. “The guidelines themselves are almost certainly the best indication of ordinary practice since most sentences are within the guidelines.” Given that defendant had been regularly dealing drugs since he left the halfway house, and had been involved with drugs for virtually all of the period over the last fifteen years that he had not been incarcerated, the district judge was not obliged to sentence defendant below the guideline range. U.S. v. Saez, 444 F.3d 15 (1st Cir. 2006).
1st Circuit, en banc, finds reasonable basis for fraud sentence exceeding guideline maximum. (120) The district court sentenced defendant, who plead guilty to wire fraud, to 96 months’ imprisonment, which was 33 months above the top of his guideline sentencing range. The First Circuit, following the approached it outlined in U.S. v. Jimenez-Beltre, 440 F.3d 514 (1st Cir. 2006), abrogated by Rita v. U.S., 551 U.S. 338, 127 S.Ct. 2456 (2007), ruled that the sentence was reasonable. The court first examined the reasons given by the district court for sentencing above the guideline range. The court discussed defendant’s exploitation of personal relationships, the harm caused, his misuse of his skills, his extravagant use of the funds stolen, and his history of dishonest conduct. The court said the sentence was needed to deter such conduct and protect the public. Defendant did not challenge these factors, only claiming that mitigating factors were ignored. However, the fact that the district court did not elaborate on them (it said it took them into account) did not preclude the inference that the court found that government’s counter-arguments persuasive. The court had a reasonable basis for exceeding the guideline maximum, and the extent of the variance was not out of line with other upward variances in egregious cases. U.S. v. Scherrer, 444 F.3d 91 (1st Cir. 2006) (en banc).
1st Circuit holds that sentence was reasonable despite court’s “terse” explanation. (120) Defendant, a former postal employee, pled guilty to mail theft after he was caught stealing letters containing credit cards. His guideline range was 18-24 months, and the district court imposed a 21-month sentence. Although district judge’s explanation for his sentence was “admittedly terse,” the First Circuit ruled that the court acted reasonably in imposing the 21-month sentence. Except for the guidelines range, the judge discussed none of the § 3553(a) factors individually, stating only that these factors “had been adequately taken into account by the guidelines, and the guideline range … produces a reasonable sentence.” Although this language was close to an assumption that the guideline sentence is automatically reasonable, the sentence was reasonable. At sentencing, defendant did not identify any factor (other than challenges to the court’s guideline calculation) that would arguably militate in favor of a sentence below the guideline range, and the government did not raise any factors in support of an above-range sentence. Thus, the judge could not be faulted for not speaking further about the § 3553(a) factors, given none were raised for his consideration. U.S. v. Alli, 444 F.3d 34 (1st Cir. 2006).
1st Circuit finds reasonable probability that court would impose more favorable sentence under advisory guidelines. (120) In sentencing defendant prior to the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005), the district court commented that defendant’s sentence was “terribly, terribly onerous” and “extraordinarily heavy.” However, the court found its discretion was limited, and its responsibility was to impose a sentence at the very lowest end of the guideline range. The First Circuit held that these statements created a reasonable probability that the district court would impose a different sentence more favorable to defendant under the new advisory guidelines. The panel remanded for the judge to determine this in the first instance. U.S. v. Walter, 434 F.3d 30 (1st Cir. 2006).
1st Circuit orders two Booker resentencings but finds third defendant who received mandatory statutory sentence not entitled. (120) Three defendants raised Booker claims for the first time on appeal. Two defendants were entitled to resentencing, since the judge’s comments indicated a reasonable probability of lower sentences under the advisory guidelines. The judge commented on her lack of discretion under the guidelines, the “waste” brought about by the length and extreme harshness of the sentences, and stated that she was not sure that, in the absence of the guidelines, she would have imposed that harsh a penalty. The First Circuit found that the third defendant was not entitled to a Booker resentencing. This defendant received a mandatory statutory (rather than guidelines) life sentence based upon the current convictions and his two prior drug convictions, the existence of which he admitted. Booker does not apply in such circumstances. U.S. v. Isler, 429 F.3d 19 (1st Cir. 2005).
1st Circuit says defendant did not show reasonable probability that he would have received lesser sentence under advisory guidelines. (120) The Supreme Court granted defendant’s petition for certiorari, and remanded for reconsideration in light of U.S. v. Booker, 543 U.S. 220 (2005). The First Circuit held that defendant’s Booker claim was not preserved – defendant did not challenge the constitutionality of his sentence in the district court. Defendant could not meet the plain error test. He pointed to nothing that established any probability that the district judge would have imposed a lesser sentence under an advisory guideline regime. He cited only language in the sentencing transcript that demonstrated that the judge understood the guidelines to be mandatory. Therefore, the court affirmed his sentence. U.S. v. Fox, 429 F.3d 316 (1st Cir. 2005).
1st Circuit refuses to order post-Booker remand where court previously refused to depart downward on grounds presented. (120) Defendant argued that there was a “reasonable probability” that the district court would impose a more favorable sentencing under the post-Booker sentencing regime. He cited a number of factors that the court might now consider under the advisory sentencing scheme, including his troubled family history, and his history of serious untreated mental illness. The First Circuit found no reasonable probability of a new sentence since the district court had before it all the evidence material to these factors, yet showed no inclination to consider them grounds for departure. For example, in denying defendant’s request for a diminished capacity departure, the court stated that the psychiatric report did not establish that defendant’s reduced mental capacity contributed substantially to his commission of the offense. U.S. v. Morrisette, 429 F.3d 318 (1st Cir. 2005).
1st Circuit holds that fast-track sentencing did not create implied delegation of power. (120) The Attorney General has authorized in certain jurisdictions “fast-track” procedures to speed criminal immigration cases through the system. Congress has directed the Sentencing Commission to provide for downward departure to defendants in such fast-track programs in exchange for their waiver of procedural rights. See § 5K3.1. The First Circuit rejected defendant’s argument that Congress delegated excessive legislative power to the Attorney General to decide when districts may install fast-track systems and when they may not. The court found no delegation at all, and therefore constitutional limits on Congress’s power to delegate could not have been transgressed. The panel also rejected defendant’s argument that the district judge at his sentencing felt constrained by the then-mandatory guidelines and did not have the opportunity to consider whether fast-track sentencing created “unwarranted sentence disparities.” However, defendant did not preserve a Booker issue, and therefore the review was for plain error. Defendant could not point to any “specific indicia” that the district court would have felt differently had it been operating under advisory guidelines, and the judge made comments suggesting that it would not have considered any fast-track disparities “unwarranted” even in an advisory guidelines regime. U.S. v. Martinez-Flores, 428 F.3d 22 (1st Cir. 2005).
1st Circuit, holds that remand was required due to trial court’s use of mandatory guidelines. (120) On remand from the Supreme Court for reconsideration in light of U.S. v. Booker, 543 U.S. 220 (2005), the First Circuit held that remand for resentencing was required, because defendants were able to establish enough of a likelihood that their new sentences under an advisory guideline regime might be less than the sentences they received under the mandatory guidelines. Each defendant was given the minimum guideline sentence. Moreover, defendants pointed to a number of mitigating factors, such as prior good works, community support, and indications of no future danger. The case was close, but on balance, the district judge deserved an opportunity to consider the matter himself. U.S. v. Bradley, 426 F.3d 54 (1st Cir. 2005).
1st Circuit holds that sentence at bottom of guideline range was insufficient to prove plain Booker error. (120) Defendants argued for the first time on appeal that their cases should be remanded for resentencing in light of Booker v. U.S., 543 U.S. 220. (2005). The First Circuit found that defendants could not establish plain error as would warrant a Booker remand. It is not enough for a defendant to argue that his sentence might have been different had the guidelines been advisory at the time of sentencing. The facts that defendants were sentenced at the bottom of the applicable guideline range was insufficient, by itself, to show plain error. U.S. v. Sanchez-Berrios, 424 F.3d 65 (1st Cir. 2005).
1st Circuit holds that defendant could not establish that restitution constituted plain error. (120) In U.S. v. Burnette, 375 F.3d 10 (1st Cir. 2005), the First Circuit affirmed defendant’s conviction and sentence, which included almost $50,000 in restitution. The Supreme Court vacated judgment and remanded for reconsideration in light of U.S. v. Booker, 543 U.S. 220 (2005). Since defendant had already finished serving her prison term, and her challenge to the conditions of supervised release was so inadequately developed that the court deemed it waived, the only remaining Booker issue was the restitution order. The First Circuit found it unnecessary to determine if Booker applies to restitution orders, since defendant was unable to meet the high burden of showing plain error. U.S. v. Burnette, 423 F.3d 22 (1st Cir. 2005).
1st Circuit finds no reasonable probability of lower sentence where court understood it could have departed downward further. (120) Defendant conceded that his claim of Booker error was not preserved. To survive plain error review, he was required to show a “reasonable probability” that the district court would have imposed a lower sentence had it treated the Sentencing Guidelines as advisory. The First Circuit found it unlikely, given that the judge departed downward, and apparently felt that he could have granted a greater departure if he felt that one was warranted. The judge found the 30-year sentence required by the career offender guideline to be severe, and imposed a 262-month sentence, which was at the high end of the range that would be authorized absent the application of the career offender guideline. The judge found this sentence appropriate, and there was no indication that the judge would have further decreased defendant’s sentence under an advisory guideline regime. There also was no reasonable probability that the court would have departed further on other grounds, such as defendant’s history of drug and alcohol addiction, child sexual abuse and diminished capacity. The court was aware of these factors, but nevertheless stated repeatedly that it felt the sentence it was imposing was appropriate. U.S. v. Estevez, 419 F.3d 77 (1st Cir. 2005).
1st Circuit holds that defendant was not prejudiced by application of mandatory guidelines. (120) Where a claim of Booker error has not been preserved, the first two prongs of the plain error test are met when the defendant shows that the sentencing court treated the guidelines as mandatory rather than advisory. With respect to the third prong, the defendant bears the burden of showing that, had the error not occurred, there was a “reasonable probability” that he would have received a lesser sentence. U.S. v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). The First Circuit ruled that defendant could not meet this standard. The fact that the court imposed a sentence at the bottom of the guideline range, standing alone, did not give rise to a reasonable probability that, under the advisory guidelines, it would have imposed a sentence lower than prescribed by the guidelines. The judge’s comment that drug laws are the source of “terrible human consequences” was ambiguous at best. U.S. v. Guzman, 419 F.3d 27 (1st Cir. 2005).
1st Circuit rules defendant showed that he likely would have received more lenient sentence under advisory guidelines. (120) Defendant was convicted of tax evasion and sentenced to 41 months, the minimum guideline sentence under the then-mandatory Federal Sentencing Guidelines. Defendant did not raise a claim of Booker error in the trial court, but argued that he established a reasonable probability that but for the error in applying the guidelines as mandatory, he would have received a more lenient sentence. The First Circuit agreed. The district court considered defendant’s two requests for downward departures but concluded that there was none available. The court commented “I’m making this decision because I believe that’s what the law requires me to do.” Indeed, the court noted that if it had granted a downward departure, “that decision would be corrected by the Court of Appeals.” The 41-month sentence was “the very lowest sentence that I can impose under these circumstances.” U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Bisanti, 414 F.3d 168 (1st Cir. 2005).
1st Circuit finds reasonable probability of lower sentence where court imposed lowest available sentence and was concerned about high federal sentences. (120) Defendant argued for the first time on appeal that he should be resentenced in light of the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 2005). The First Circuit agreed that remand was required. The district judge sentenced defendant to the lowest available sentence under the guidelines. He repeatedly expressed his concern about disparate treatment between federal and state court sentences in similar cases, but stated that the guidelines did not permit him to take that disparity into account. The court also observed that defendant had the most horrible young life he had seen in 17 years on the bench. Both the need to avoid unwarranted sentencing disparities and the history and characteristics of the defendant are among the factors to be considered by the now advisory guidelines. Where there is a reasonable indication that the district judge might well have given a different sentence under an advisory guidelines regime, and it would be easy enough for him to say no with a minimum expenditure of effort, remand is required. U.S. v. Wilkerson, 411 F.3d 1 (1st Cir. 2005).
1st Circuit says sentence at bottom of guideline range is not sufficient to show Booker error affected substantial rights. (120) Defendant argued for the first time on appeal that the district court committed error by erroneously considering the guidelines as mandatory. The First Circuit ruled that defendant could not meet the third prong of the plain error test – he could not establish a reasonable probability that the district court might have given him a lesser sentence under advisory guidelines. Nothing about the district court’s comments at sentencing indicated that it thought that defendant’s sentence was too harsh. The fact that the court sentenced defendant at the low end of the applicable guideline range was not, by itself, sufficient to show a reasonable probability of a lesser sentence under the advisory system. Defendant did not proffer to the court any additional facts concerning his case that he would present on remand. U.S. v. Kornegay, 410 F.3d 89 (1st Cir. 2005).
1st Circuit says defendants did not establish reasonable probability of lower sentence. (120) Although defendants did not raise the issue below, the appellate court invited them to make a plain error showing that there was a “reasonable probability” that the district court would impose a more favorable sentence under the new advisory guidelines. See U.S. v. Booker, 543 U.S. 220 (2005); U.S. v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). Defendants pointed to several factors that might have led to a lower sentence under an advisory guideline regime. These factors included that the crime was an instance of aberrant behavior and that defendants had distinguished records of public service. However, aberrant behavior is a permissible consideration for a departure, and the district court actually rejected this ground for departure on the merits. Defendants’ embezzlement, executed over many years through a variety of methods, was not a single act of aberrant behavior. The problem was similar for public service, which was also a permitted but discouraged ground for departure. The judge did not disregard their public service – he made a judgment and took it into account by sentencing them at the bottom of the guideline range. Finally, the judge went out of his way to indicate that he thought defendants received just sentences. U.S. v. Cacho-Bonilla, 404 F.3d 84 (1st Cir. 2005).
1st Circuit finds no plain error where court stated it would not impose shorter sentence even if it had more discretion. (120) Defendant argued that the district court plainly erred by imposing a sentence that violated the recent decision in Booker v. U.S., 543 U.S. 220. (2005). The First Circuit held that defendant could not meet his burden of proving that there was a “reasonable probability” that the court would have imposed a lesser sentence if it had known that the guidelines were advisory, rather than mandatory. The court stated at sentencing that defendant was a danger to the community, and that it was imposing the longest sentence it could give him for the protection of society. In imposing consecutive sentences, it found that it had no discretion “to do otherwise. Even if I did, this is what I would do in order to separate him from society.” U.S. v. Carpenter, 403 F.3d 9 (1st Cir. 2005)
1st Circuit remands where court stated that it would have departed if permitted by guidelines. (120) Defendant argued that the amount of drugs involved in his offense was so trivial as to take his case out of the heartland of typical career-offender cases, and thus he was entitled to a downward departure under U.S.S.G. § 5K2.0. The district court was sympathetic to defendant’s plight, saying that it would depart downward if it could, but concluding that it lacked the authority to do so in defendant’s case. After defendant was sentenced, the Supreme Court decided U.S. v. Booker, 543 U.S. 220 (2005). The First Circuit remanded for resentencing in light of Booker. The judge’s comments indicated that but for the mandatory nature of the guidelines, he would have imposed a lesser sentence. The panel declined to answer the “smallness” question. Defendant could raise other arguments under advisory guidelines that were previously precluded, and the smallness question may not need to be addressed. U.S. v. Morin, 403 F.3d 41 (1st Cir. 2005).
1st Circuit remands where court felt constrained by guidelines. (120) Defendant raised a Sixth Amendment challenge to his sentence for the first time on appeal. Reviewing for plain error, the First Circuit found prejudice and fundamental unfairness, concluding that defendant would have likely received a lesser sentence under the post-Booker advisory guidelines. The record contained some indication that the district court felt itself constrained by the guidelines. The court noted that defendant’s arguments were “legitimate” and “somewhat mitigating,” and should be considered in determining where within the guidelines range defendant’s sentence should fall; but it concluded that these factors “do not approach what is required to justify a downward departure,” that age and physical condition were both discouraged as grounds for departure, and that defendant’s traits, although worthy of consideration, were insufficient to take the case outside the heartland of the guidelines. U.S. v. Heldeman, 402 F.3d 220 (1st Cir. 2005).
1st Circuit says sentence almost double guideline minimum showed court would not impose more lenient sentence under advisory regime. (120) The First Circuit rejected defendant’s Booker claim, brought for the first time on appeal, since defendant did not show a reasonable probability that the district court would have imposed a different (more lenient) sentence had it understood that the Sentencing Guidelines were advisory rather than mandatory. The guidelines, without any downward departure, would have allowed the court to impose an aggregate sentence as low as 360 months for the grouped counts. The court spurned that option and chose to sentence defendant to nearly double that amount of prison time, a total of 600 months. The court explained that a sentence at the low end of the range would ignore the horrific details of the crime and “depreciate the overall harm to the victims.” This was a “telling indication” that under an advisory system, the court would have imposed the same sentence. U.S. v. Gonzalez-Mercado, 402 F.3d 294 (1st Cir. 2005).
1st Circuit says unpreserved Booker error met plain error standards where court found guideline sentence “obscene.” (120) Defendant sought a downward departure at sentencing. Although the district court found the sentence required by the guidelines to be “obscene” and “unwarranted by the conduct,” the court found no basis under the law to support a departure. Defendant argued for the first time on appeal that he should be resentenced in light of U.S. v. Booker, 543 U.S. 220 (2005). Given the judge’s comments and the number of grounds presented by defendant for departure that could not be considered under a mandatory guidelines system, the First Circuit remanded for resentencing. U.S. v. MacKinnon, 401 F.3d 8 (1st Cir. 2005).
1st Circuit says defendant did not show reasonable probability that he would receive more favorable sentence under advisory guidelines. (120) Defendant argued for the first time on appeal that he should be resentenced in light of U.S. v. Booker, 543 U.S. 220 2005), because the district court was clearly constrained by the guidelines and imposed a 63-month term, which was above the statutory minimum sentence of 60 months. Reviewing for plain error under the framework adopted in U.S. v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005), the First Circuit held that resentencing was not necessary. The first two prongs of the plain error test are met whenever the court treats the guidelines as mandatory. However, to meet the third prong of the test, the defendant must show a “reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new ‘advisory guidelines’ Booker regime.” At sentencing, the judge said “I have to consider the fact that I cannot sentence him to 60 months. The lowest I can sentence him on that particular situation is 63.” This statement was insufficient to show that the district court would have sentenced defendant to 60 months in prison instead of 63. The court’s statement was a single statement of fact. Defendant did not show a reasonable probability that the judge would have totally ignored defendant’s role in the offense and prior conviction, particularly since the judge was required to “consult” the guidelines and “take them into account” when sentencing. U.S. v. Serrano-Beauvaix, 400 F.3d 50 (1st Cir. 2005).
1st Circuit rejects Booker claim of defendant who stipulated to enhancement and underlying facts. (120) Defendant argued that under U.S. v. Booker, 543 U.S. 220 (2005), the court should vacate only that portion of his sentence due to an enhancement, on the basis that either the jury should have decided the facts leading to the enhancement, or the judge should have done so by proof beyond a reasonable doubt. Eliminating the enhancement would reduce his sentence from 20 to 13 years. He did not seek to vacate the entire sentence for resentencing in a post-Booker non-mandatory guideline sentencing regime. The First Circuit held that defendant waived this issue. He waived the right to have a jury decide the issue when he pled guilty. Moreover, when defendant and the government jointly stipulated both to the enhancement and the sentencing increase resulting from the enhancement, the court was bound by this stipulation once it accepted the plea agreement. Therefore, it did not engage in fact-finding in order to apply the enhancement; it merely applied the terms of the plea agreement. U.S. v. Sahlin, 399 F.3d 27 (1st Cir. 2005).
1st Circuit holds that guilty plea not rendered involuntary by Booker. (120) Defendant argued that he should be permitted to withdraw his guilty plea because it was not voluntary, being based on an understanding of a sentencing scheme rendered erroneous by U.S. v. Booker, 543 U.S. 220 (2005). The First Circuit held that Booker did not render defendant’s guilty plea involuntary. Defendant was in fact sentenced under the mandatory sentencing scheme that he expected. The possibility of a favorable change in the law occurring after a plea is one of the normal risks that accompany a guilty plea. U.S. v. Sahlin, 399 F.3d 27 (1st Cir. 2005).
1st Circuit says plain error under Booker requires defendant to show reasonable probability that court would impose different sentence. (120) The First Circuit addressed for the first time its standards for unpreserved claims of Booker error in cases on direct appeal. The first two requirements under U.S. v. Olano, 507 F.3d 725 (1993) – that an error exists and that it is plain at the time of appeal – are satisfied whenever the district court treated the guidelines as mandatory at the time of sentencing. However, to meet the other two requirements – that the error affected defendant’s substantial rights and would impair confidence in the justice of the proceedings – ordinarily the defendant must point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new advisory guidelines’ Booker regime. The fact that the judge found additional facts that raised the sentence authorized solely by the jury verdict or guilty plea is insufficient to meet the third and fourth Olano prongs on plain-error review. The plain-error standard is not met by a simple assertion that the defendant was sentenced under a mandatory guidelines system. Here, the main grounds on which defendant sought remand were gone. However, if he wished to pursue resentencing based on family circumstances (a departure he sought and was denied at sentencing), the court gave him ten days to file a supplemental brief. U.S. v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005).
1st Circuit says possible Blakely errors were not plain error. (120) Defendant challenged certain guideline sentencing enhancements based on factual findings by the district judge at sentencing as a violation of his right to have all elements of his crime found by a jury beyond a reasonable doubt. Blakely v. Washington, 124 S.Ct. 2531 (2004). However, because defendant did not challenge the constitutionality of his sentencing enhancements below, the First Circuit reviewed only for plain error and found none. Under plain error review, the challenging party has the burden of showing (1) an error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously undermines the fairness, integrity, or public reputation of judicial proceedings. Defendant’s claim failed at least to satisfy the second element of plain error review. U.S. v. Bezanson-Perkins, 390 F.3d 34 (1st Cir. 2004).
1st Circuit says use of murder cross-reference did not violate Blakely where jury found murder occurred. (120) Defendant was convicted of drug charges and three murder charges (aiding and abetting firearms murder in furtherance of a drug crime, aiding and abetting murder of a witness, and aiding and abetting murder while engaging in a drug crime). The drug conspiracy guideline, § 2D1.1(d)(1) provides a cross-reference to the first degree murder guideline “[i]f a victim was killed under circumstances that would constitute murder….” The First Circuit held that the district court’s use of the murder cross-reference did not violate Blakely v. Washington, 124 S.Ct. 2531 (2004) because the jury had already decided that, in the course of the conspiracy, a victim was killed under circumstances that would constitute murder had the killing occurred within the federal criminal jurisdiction. Although not necessary to the analysis, the jury convicted defendant of personally aiding and abetting in that murder. U.S. v. Rodriguez-Marrero, 390 F.3d 1 (1st Cir. 2004).
1st Circuit says Blakely did not require jury to decide whether prior convictions were violent felonies. (120) After oral argument, defendant submitted a letter arguing that Blakely v. Washington, 124 S.Ct. 2531 (2004) required his sentence to be vacated. The First Circuit found no plain error. The judge made only two findings of fact that could conceivably have triggered Blakely: (1) that two prior burglaries were crimes of violence under the Armed Career Criminal Act, and (2) that the burglaries were part of a single “occasion” under the ACCA. Defendant did not dispute that the two burglaries were violent felonies under the ACCA. And Blakely does not encompass sentencing enhancements based upon “the fact of a prior conviction.” The argument about separate “occasions” under the ACCA was a question of law rather than fact, because the facts concerning the two burglaries were undisputed. U.S. v. Stearns, 387 F.3d 104 (1st Cir. 2004).
1st Circuit rejects second habeas petition raising Blakely issue. (120) Defendant sought leave to file a second or successive habeas petition under 28 U.S.C. § 2255 based on Blakely v. Washington, 124 S.Ct. 2531 (2004). A new rule of law can form the basis for a second or successive habeas petition only if that rule is “made retroactive to cases on collateral review by the Supreme Court.” § 2255 para. 8(2). To date, the Supreme Court has not decided whether Blakely is even applicable to the federal Sentencing Guidelines, much less declared its ruling in Blakely to be retroactive to cases on collateral review. Therefore, the First Circuit found the petition premature, and denied it without prejudice. Cuevas v. Derosa, 386 F.3d 367 (1st Cir. 2004).
1st Circuit says failure to dispute factual basis of enhancements foreclosed plain error. (120) Defendant argued for the first time on appeal that several sentence enhancements were improper under Blakely v. Washington, 124 S.Ct. 2531 (2004). The First Circuit held that even if Blakely applies to the federal guidelines, there was no basis for reversal. Defendant did not raise the jury trial issue in the district court, nor did he request a jury trial with respect to factual issues relating to the sentencing. Therefore, the appellate court would review the enhancements only for plain error. At sentencing, defendant objected only to a carjacking enhancement, not the other three enhancements now challenged on appeal. Defendant made no claim that there was a factual dispute as to any of these issues. In a sidebar conference, the parties agreed that the carjacking enhancement was to be based entirely on the facts in the PSR. Thus, defendant did not dispute the factual basis underlying any of the enhancements. This foreclosed a finding of plain error. U.S. v. Savarese, 385 F.3d 15 (1st Cir. 2004).
1st Circuit holds that application of guidelines in wake of Blakely was not plain error. (120) Defendant argued in a letter under Local Rule 28(j) that the Sentencing Guidelines were invalid in light of Blakely v. Washington, 124 S.Ct. 2531 (2004). The First Circuit noted that the continuing validity of the Sentencing Guidelines has “roiled the federal courts and split the circuits.” However, whatever the outcome, the answer was “neither plain nor obvious at the time of this appeal.” Because the trial judge’s sentence was consistent with precedent, and current law was unsettled, the application of the guidelines did not constitute plain error. U.S. v. Cordoza-Estrada, 385 F.3d 56 (1st Cir. 2004).
1st Circuit holds that Blakely did not apply to aggravated felony enhancement. (120) The day before oral argument, defendant filed a letter pursuant to Local Rule 28(j), arguing that his sentence was unlawful because Blakely v. Washington, 124 S.Ct. 2531 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000) undermined the Supreme Court’s ruling in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which held that the prior “aggravated felony” language of 8 U.S.C. § 1326(b)(2) refers to a sentencing enhancement, not an element of the offense. The First Circuit found no plain error in defendant’s receipt of an aggravated felony enhancement. Blakely did not disturb the distinction between “the fact of a prior conviction” and other facts that “increase the penalty for a crime beyond a prescribed maximum.” There was no error in the trial judge’s consideration of the prior conviction. U.S. v. Cordoza-Estrada, 385 F.3d 56 (1st Cir. 2004).
1st Circuit says possible Blakely error not plain because defendant was sentenced under established circuit precedent. (120) Following oral argument, defendant submitted letters under Fed.R.App. P. 28(j) seeking additional review of his sentencing in light of Blakely v. Washington, 124 S.Ct. 2531 (2004). Defendant never raised the Blakely issue at the trial court, in his original briefs to the appellate court, or in oral argument. The First Circuit found it unnecessary to determine whether the issue was forfeited (so that plain error review applied) or whether the issue was waived (so that issue was unreviewable), because even if defendant’s Blakely claim were reviewed for plain error, it would not prevail. Under existing (post-Apprendi, pre-Blakely) First Circuit precedent, the judge is empowered in a conspiracy case to determine the exact amount of drugs that a defendant reasonably foresaw, so long as his sentence is not greater than that which could be imposed based on the total quantity of drugs that the jury found for the conspiracy as a whole. Because the trial judge acted in accordance with circuit precedent (not yet established to be clearly erroneous), no plain error occurred. U.S. v. Morgan, 384 F.3d 1 (1st Cir. 2004).
1st Circuit holds that life sentence violated Apprendi. (120) The PSR identified 21 U.S.C. § 841(b)(1)(A), which sets the maximum statutory punishment at life imprisonment, as the relevant penalty provision. The district court sentenced defendant accordingly. However, the jury did not find that the charged conspiracy involved the drug quantities listed in § 841(b) (1)(A). Because the issue of drug type and quantity was not properly submitted to the jury, the statutory maximum was 20 years under § 841(b)(1)(C). The First Circuit rejected the government’s claim that the Apprendi error was harmless and did not affect defendant’s substantial rights. Although the evidence permitted “a reasonable inference that the charged conspiracy engaged in large-scale drug trafficking,” the evidence of drug quantity was not “overwhelming.” While this evidence did not undermine the conviction, more was required to show harmlessness beyond a reasonable doubt. U.S. v. Perez-Ruiz, 353 F.3d 1 (1st Cir. 2003).
1st Circuit holds that use of murder cross-reference did not violate Apprendi. (120) Defendant was convicted of drug conspiracy charges. He argued that the district court violated his due process rights when it applied the murder cross-reference in § 2D1.1(d) to enhance his sentence to life without submitting the enhancement factor to the jury for proof beyond a reasonable doubt. The First Circuit rejected defendant’s claim that the use of the higher mandatory sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The statutory maximum for the offense that defendant was charged with was life imprisonment. Because defendant’s sentence did not exceed that statutory maximum, Apprendi was not applicable, regardless of whether a sentencing factor increases the mandatory minimum sentence under either the statute or the Sentencing Guidelines. See U.S. v. Robinson, 241 F.3d 115 (1st Cir. 2001). U.S. v. Reyes-Echevarria, 345 F.3d 1 (1st Cir. 2003).
1st Circuit rules sentencing judge did not improperly believe he was bound by jury’s drug quantity verdict. (120) The government recommended that defendant be held responsible for between five and 15 kilograms of cocaine. Defendant pointed to the jury’s special verdict that he was responsible for between 500 grams to two kilos of cocaine. The court first said, “you don’t have to argue the jury verdict with me, I’m bound by it.” After further discussion, the court retreated somewhat from this position, but still found defendant responsible for between 500 grams and two kilos, stating that this ruling would be “in harmony” with the jury’s verdict. Although a close question, the First Circuit ruled that the judge did not improperly believe that he was bound by the jury’s verdict. Moreover, while there was a very good argument for the higher range urged by the government, the court’s finding of only 500 grams to two kilos was not clearly erroneous. U.S. v. Picanso, 333 F.3d 21 (1st Cir. 2003).
1st Circuit says Apprendi does not apply where sentence below statutory maximum is applied. (120) Defendant alleged that because his sentence was based on the weight of the cocaine involved in his offense, the failure to submit this issue to the jury violated his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). The indictment specified that about 978 kilograms of cocaine were involved in the crime, a charge that exposed defendant to a sentence of ten years to life. Moreover, he stipulated at trial that the weight of the cocaine was 975 kilograms (an amount carrying the same penalties as the amount charged in the indictment). The First Circuit found no Apprendi violation since defendant was sentenced to 188 months, a term less than the statutory maximum of life. In such a case, Apprendi is irrelevant. Apprendi does not extend to circumstances in which a defendant is sentenced to more than the mandatory minimum sentence. U.S. v. Downs-Moses, 329 F.3d 253 (1st Cir. 2003).
1st Circuit holds that drug quantity in § 841(b) is a sentencing factor, not an element of separate crimes. (120) A jury convicted defendant of conspiracy and possession with intent to distribute crack, in violation of 21 U.S.C. §§ 841(a)(1) and 846. By special verdict form, the jury indicated that the amount for each count was at least five but less than 50 grams of cocaine base. The judge, however, found that defendant was responsible for 309.2 grams of crack, and sentenced him accordingly. Defendant argued that he could only be sentenced pursuant to the jury’s determination of drug quantity. The First Circuit acknowledged the split among its sister circuits who have considered this issue post-Apprendi, and held that drug quantity in § 841(b) is a sentencing factor, not an element of a separate crime. A straightforward reading of § 841 suggests that part (a) identifies a crime and part (b) outlines different penalties for that crime. Drug quantity is a classic sentencing factor. Moreover, due to limitations under Apprendi, a jury’s determination will cap the maximum sentence a judge can impose, regardless of drug quantity determination. The application of the mandatory minimum to defendant also did not violate Apprendi, even though it exceeded the high end of his sentencing guideline range. Apprendi’s holding applies only when the disputed fact enlarges the applicable statutory maximum and the defendant’s sentence exceeds the original maximum. If the disputed fact influences the sentence, but the resulting sentence is still below the default statutory maximum, there is no Apprendi violation. U.S. v. Goodine, 326 F.3d 26 (1st Cir. 2003).
1st Circuit say application of murder cross-reference did not violate Apprendi. (120) Defendant was convicted of multiple drug charges. Applying the murder cross reference provision in U.S.S.G. § 2D1.1 (d)(1), the district court determined by a preponderance of the evidence that defendant’s role in the massacre of others warranted a base offense level of 43. The First Circuit upheld the cross-reference, rejecting defendant’s claim that the use of it violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Although defendant was previously acquitted in state court of the murders, the use of the cross reference did not violate due process. U.S. v. Lombard, 72 F.3d 170 (1st Cir. 1995). The use of the cross-reference also did not violate Apprendi, which does not apply to findings made under the sentencing guidelines, where the sentence imposed does not exceed the original statutory maximum. Finally, there was sufficient evidence to suppose the use of the cross-reference. A resident of a housing project observed three individuals with bloodstained clothing being pulled out of a car and taken behind a neighboring building. The witness then saw defendant raise and lower a red gasoline can as if he were spraying gas inside the vehicle. Another witness testified that he was told by a conspirator that the victims were thrown into the back seat of a car, forced to drink gasoline, and then executed and set on fire. Finally, a long-time acquaintance of defendant’s testified that defendant admitted to committing the murders. U.S. v. Newton, 326 F.3d 253 (1st Cir. 2003).
1st Circuit says Apprendi claim need only be raised by defendant at sentencing. (120) Defendants argued that their sentences were imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Second Circuit addressed what a defendant must do in order to preserve an Apprendi objection for appeal. For future cases, it is sufficient if the defendant raises the issue at sentencing. A defendant has no interest in being sentenced above the maximum and no incentive to request that the jury specifically determine those facts which would carry him above that level. The government has an interest in going above the maximum, so it bears the burden of requesting submission of the issue to the jury. Further, a defendant will not know whether there is an Apprendi error until sentencing, and then only if the court considers a sentence above the maximum. An objection from defendant at the point of sentencing will be timely. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).
1st Circuit rejects Apprendi challenge to application of § 3147. (120) Under 18 U.S.C. § 3147, a defendant convicted of an offense committed while on release shall be sentenced to an additional term of up to ten years, and the sentence shall be consecutive to any other sentence of imprisonment. Section 3147 has been incorporated into the guidelines through USSG § 2J1.7, which provided for a three-level increase if the § 3147 enhancement applies. The Sentencing Commission, in its Background Commentary to § 2J1.7, has characterized § 3147 as an enhancement provision and not a count of conviction. The First Circuit found that the Sentencing Commission’s assimilation of § 3147 in § 2J1.7 effectively mooted any challenge to the application of § 3147 under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Application Notes encourage sentencing judges to sentence within the guideline range by using a § 3147 enhancement only for purposes of calibrating where, within the underlying guideline range, a sentence below the applicable maximum may be imposed. The judge here carefully followed this protocol by imposing a total sentence within the guideline range. U.S. v. Randall, 287 F.3d 27 (1st Cir. 2002).
1st Circuit reaffirms that Apprendi does not apply to sentence enhancements based upon prior convictions. (120) Defendant argued that his enhanced sentence under the Armed Career Criminal Act violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because his prior convictions were not alleged in the indictment nor proven independently. The First Circuit rejected this argument, since Apprendi explicitly exempted from its holding sentence-enhancement provisions based upon prior criminal convictions. U.S. v. Moore, 286 F.3d 47 (1st Cir. 2002).
1st Circuit says drug statutes not unconstitutional after Apprendi. (120) Defendants argued that their sentences were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) because they were based on factors found by the district judge under a preponderance of the evidence standard rather than on findings made by the jury beyond a reasonable doubt. Because defendants’ 235-month sentences were less that the 240-month statutory maximum sentence for trafficking in even the smallest quantity of cocaine, 21 U.S.C. § 841(b)(1)(C), the First Circuit found no Apprendi violation. The panel also rejected defendants’ argument that, under Apprendi, 21 U.S.C. §§ 841 and 952 are unconstitutional because they do not specifically assign the drug quantity determination to the jury. Many courts have found § 841 constitutional even though it is silent as to who should determine drug quantities. Section 952 is similarly silent. This does not render them unconstitutional. The statute’s test does not conflict with Apprendi’s rule and a sentence remands valid so long as there is no Apprendi violation in the course of its implementation. U.S. v. Lopez-Lopez, 282 F.3d 1 (1st Cir. 2002).
1st Circuit holds that enhanced firearm sentence violated Apprendi. (120) Section 924(c)(1)(A) carries a statutory minimum of five years’ imprisonment for carrying or using a firearm during a drug conspiracy. Section 924(c)(1) (B) carries an enhanced sentence of ten years’ imprisonment for the use or possession of a semiautomatic weapon during a crime of violence. The district court found by a preponderance of the evidence that defendant violated § 924(c)(1)(B), and imposed an enhanced sentence of ten years’ imprisonment. Because the jury did not determine beyond a reasonable doubt that defendant was accountable for the semiautomatic weapons carried by his co-conspirators, as required by Apprendi v. New Jersey, 530 U.S. 466 (2000), the First Circuit remanded for the court to impose a sentence under § 924(c)(1)(A). However, Apprendi did not apply to defendant’s 151-month drug sentence. The Apprendi doctrine does not apply to defendants who are sentenced to a term less than the otherwise applicable statutory maximum. Finally, the court rejected defendant’s claim that Apprendi rendered § 841(b) unconstitutional on its face. The statute is silent as to who makes the drug quantity findings and under what burden of persuasion. U.S. v. Collazo-Aponte, 281 F.3d 320 (1st Cir. 2002).
1st Circuit finds Apprendi error harmless where there was overwhelming evidence of drug quantity. (120) Defendants argued that the district court violated their rights under Apprendi v. New Jersey, 530 U.S. 466 (2000) when it sentenced them to life in prison based on the court’s determination of drug quantity. An Apprendi error can be harmless where the evidence overwhelmingly establishes the minimum drug quantity needed to justify a higher statutory maximum. U.S. v. Duarte, 246 F.3d 56 (1st Cir. 2002). At trial, the government produced overwhelming evidence that the conspiracy involved at least five kilograms of cocaine. For example, one witness testified to transporting huge quantities of cocaine for defendants. On one occasion alone, the witness handled 20 sacks of cocaine, each containing several kilograms of the drug. The record was replete with other examples as well. Relying upon this evidence, the sentencing court ultimately determined that the conspiracy involved more than 150 kilograms of cocaine, or 30 times more than needed to impose a life sentence under 21 U.S.C. § 841(b)(1)(A). Neither defendant seriously denied that the conspiracy involved at least five kilograms of cocaine, and one defendant actually conceded that he was responsible for more than 50 kilograms. Accordingly, the First Circuit found no error in the court’s use of the larger drug quantity figure. U.S. v. Martinez-Medina, 279 F.3d 105 (1st Cir. 2002).
1st Circuit holds Apprendi exception for prior convictions is not limited to cases where defendant admits the prior. (120) Defendant argued that even though Apprendi v. New Jersey, 530 U.S. 466 (2000) did not overrule Almendarez-Torres v. U.S., 523 U.S. 224 (1998), it limited Almendarez-Torres to cases in which a defendant actually admits a prior felony conviction. The First Circuit rejected the argument, noting that the Ninth Circuit in U.S. v. Arellano-Rivera, 244 F.3d 1119 (9th Cir. 2001), has also rejected it. Thus the court held “unequivocally” that Apprendi neither overruled nor limited Almendarez-Torres to cases in which defendant admits a prior aggravated felony. U.S. v. Gomez-Estrada, 273 F.3d 400 (1st Cir. 2001).
1st Circuit holds that Apprendi error was not harmless. (120) Federal agents found 93 pounds of marijuana in a barrel that a co-conspirator delivered to defendant. Two more empty barrels were found in the co-conspirator’s apartment. These barrels had been shipped in a similar fashion to the one intercepted by agents, smelled of marijuana, and one had defendant’s palm print inside of it. The district court found defendant accountable for 319.9 kilograms of marijuana. Defendant argued that the court’s use of the preponderance of the evidence standard to determine drug quantity elevated his sentence above the five-year maximum for trafficking in less than 50 kilograms of marijuana, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The First Circuit agreed, and ruled that the Apprendi error was not harmless. Defendant’s 262-month sentence obviously exceeded the five-year default statutory maximum, even if sentences for each of the three counts of conviction were to run consecutively. Moreover, while a jury could permissibly find that the two empty barrels contained sufficient marijuana to take defendant over the 110.2 pound (50 kilogram) threshold, it was not clear that a reasonable jury must have found this beyond a reasonable doubt. The government was unable to prove how much marijuana had been in the two barrels that simply smelled of marijuana. It would be arbitrary to hold that a reasonable jury would have had to find that the empty barrels had contained more than 17 pounds. U.S. v. Bailey, 270 F.3d 83 (1st Cir. 2001).
1st Circuit holds that indictment’s mistaken reference to wrong penalty provision did not require reversal. (120) The grand jury included a specific reference to § 841(b)(1)(B) in the count of conviction. Defendant argued that, given the grand jury’s action, the court’s decision to sentence him under § 841(b)(1)(A) both usurped the grand jury’ prerogative and abridged his rights under the Fifth and Sixth Amendments. The First Circuit rejected this argument. In general, an indictment is sufficient if it specifies the elements of the offense charged, fairly apprises the defendant of the charges against which he must defend, and allows him to contest it without fear of double jeopardy. In an indictment for conspiracy, the conspiracy is the gist of the crime. The specification of a penalty provision for the underlying offense was not essential to the validity of the conspiracy count. Thus, because the court’s use of § 841(b)(1)(A) rather than § 841(b)(1)(B) left the substance of the charge unaffected, the switch did not usurp the prerogative of the grand jury. Also, the switch did not deprive defendant of notice or otherwise mislead him. When the court determined that § 841(b)(1)(B) was not the appropriate penalty provision, the court gave defendant the opportunity to withdraw his guilty plea. U.S. v. Eirby, 262 F.3d 31 (1st Cir. 2001).
1st Circuit finds no Apprendi error where drug sentence was below “default statutory maximum.” (120) Defendant’s 133-month sentence fell below the 20-year statutory maximum in 21 U.S.C. § 841(b)(1)(C) for unspecified quantities of cocaine base, and below the 40-year statutory maximum in 21 U.S.C. § 860 for unspecified quantities of cocaine base sold within 1,000 feet of a school. Relying on U.S. v. Caba, 241 F.3d 98, 101 (1st Cir. 2000), the First Circuit held that Apprendi v. New Jersey, 530 U.S. 466 (2000) “does not apply to findings by the sentencing judge, under a preponderance of the evidence entered, that elevate a defendant’s guideline sentencing range (and, thus, his ultimate sentence), so long as the imposed sentence does not outstrip the default statutory maximum.” U.S. v. Gomez, 255 F.3d 31 (1st Cir. 2001).
1st Circuit finds no Apprendi error where sentence did not exceed statutory maximum. (120) Defendant pled guilty to illegally reentering the U.S., in violation of 8 U.S.C. § 1326(b)(2). He received a 16-level enhancement because his deportation occurred after his conviction for an aggravated felony. He argued that the district court erred in not submitting the sentencing enhancement to a jury. See Apprendi v. New Jersey, 530 U.S. 466 (2000). However, no Apprendi error occurs when the district court sentences a defendant below the statutory maximum, even if a fact determined by the court under a preponderance standard lengthens the sentence imposed. Here, the applicable statute set forth a maximum sentence of 20 years for the unlawful reentry charge. The plea agreement and hearings made clear that defendant fully understood that he faced that maximum penalty. The actual sentence imposed by the district court, even with the enhancement, was 45 months. Accordingly, the First Circuit found no Apprendi error. U.S. v. Johnstone, 251 F.3d 281 (1st Cir. 2001).
1st Circuit holds that five-year term of supervised release violated Apprendi. (120) Defendant argued that the length of her sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt). The First Circuit found no Apprendi violation since defendant’s 168-month sentence fell below the 20-year default statutory maximum for her drug offense. See U.S. v. Robinson, 241 F.3d 115 (1st Cir. 2001). However, defendant’s five-year supervised release term violated Apprendi. The penalty statute, 21 U.S.C. § 960(b)(3), provides explicitly for a supervised release term of three years for violations of the importation statute involving less than 500 grams of cocaine. Given that supervised release terms set out in particular sections of the drug laws establish the maximum terms for violations of those sections, Apprendi required defendant’s supervised release term to be reduced to three years. U.S. v. Barnes, 251 F.3d 251 (1st Cir. 2001).
1st Circuit says Apprendi error did not affect substantial rights where defendant accepted responsibility for drugs in plea agreement. (120) Defendant argued for the first time on appeal that his 151-month sentence for a marijuana conspiracy violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Assuming without deciding that defendant’s sentence violated Apprendi, the First Circuit refused to remand, finding defendant could not meet the “substantial rights” prong of the plain error test. The proof of defendant’s involvement in distributing more than 1000 kilograms of marijuana was so overwhelming that his substantial rights could not have been affected by sentencing him based on that quantity. Defendant signed a plea agreement in which he unequivocally accepted responsibility for a specific amount of drugs (1000 to 3000 kilograms). This admission, which largely dictated the length of his sentence, took any issue about drug quantity out of the case. Moreover, although the body of his indictment did not mention specific drug amounts, the notices appended to the indictment gave defendant fair warning that the government believed he had dealt in large quantities of marijuana beyond the five-year “default” statutory maximum. Defendant acknowledged in the plea agreement that his admission of guilt exposed him to a life sentence on at least one of the marijuana trafficking counts. Finally, defendant’s 151-month sentence was well below the maximum to which his own drug-quantity admission exposed him. U.S. v. Duarte, 246 F.3d 56 (1st Cir. 2001).
1st Circuit holds that use of acquitted drugs as relevant conduct did not violate Apprendi. (120) A jury convicted defendant of various drug charges, but acquitted him of a crack cocaine count. Nonetheless, the district court used the crack involved in the acquitted count as relevant conduct to calculate defendant’s guideline sentence. Defendant argued that the court’s use of the drugs involved in the acquitted count violated Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact other than a prior conviction that increases the sentence beyond the statutory maximum must be submitted to the jury and proven beyond a reasonable doubt). The First Circuit refused to extend Apprendi to cover the use of relevant conduct at sentencing. By its own terms, the holding in Apprendi applies only when the disputed “fact” enlarges the applicable statutory maximum and the defendant’s sentence exceeds the original maximum. Apprendi does not apply to guideline findings that increase the defendant’s sentence, but do not elevate the sentence to a point beyond the lowest applicable statutory maximum. The fact that the jury acquitted defendant of the crack count did not change the analysis. The Supreme Court, in U.S. v. Watts, 519 U.S. 148 (1997), held that a district court may, without offending due process, consider and act upon acquitted conduct. U.S. v. Caba, 241 F.3d 98 (1st Cir. 2001).
1st Circuit lacks jurisdiction to consider Apprendi claim because defendant did not cross-appeal. (120) On the government’s appeal of the court’s downward departure, defendant attempted to argue that the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) required that his sentence be reduced even further. The First Circuit ruled that it had no jurisdiction to consider defendant’s claim, because defendant did not cross-appeal. Judicial economy is not a reason to allow a defendant to attack a judgment without having filed a notice of appeal. The panel also rejected defendant’s claim that failure to charge elements of a crime in the indictment are jurisdictional defects that can be raised at any time. In each case cited by defendant, the defendant was appealing his sentence. U.S. v. Craven, 239 F.3d 91 (1st Cir. 2001).
1st Circuit holds that theoretical exposure to higher statutory maximum did not violate Apprendi. (120) Because defendant’s 121-month sentence was below the 20-year statutory maximum for trafficking in an unspecified quantity of cocaine base, see 21 U.S.C. § 841(b)(1)(C), the sentence did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant nonetheless argued that her sentence violated Apprendi because the court’s overall drug quantity calculation (35.33 grams of cocaine base) theoretically exposed her to a 40-year sentence under § 841(b)(1)(B). The First Circuit held that a defendant’s theoretical exposure to a higher statutory maximum does not violate Apprendi, provided the actual sentence imposed does not exceed the original statutory maximum. Defendant lacked standing to argue that Apprendi applied where a mandatory minimum sentence is imposed. Defendant’s sentence was not premised on the mandatory minimum in § 841(b)(1)(B), but rather on the applicable sentencing guidelines. Moreover, this would be a losing argument, since McMillan v. Pennsylvania, 477 U.S. 79 (1986) clearly allows a fact that triggers a mandatory minimum sentence to be found by a judge using the preponderance standard. U.S. v. Robinson, 241 F.3d 115 (1st Cir. 2001).
1st Circuit says Almendarez-Torres binding unless overruled by Supreme Court. (120) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the Supreme Court held that any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. The statutory maximum under 21 U.S.C. § 841(b)(1)(C) for an offense involving an unspecified amount of cocaine is 20 years, except that the maximum sentence increases to 30 years where there is a prior final drug conviction. The parties agreed that if the 30-year maximum for the prior felony convictions was applicable, then defendant’s 27-year sentence was valid. The First Circuit held that defendant’s claim that prior convictions must be proven beyond a reasonable doubt was precluded by the Supreme Court’s decision in Almendarez-Torres v. U.S., 523 U.S. 224 (1998). Almendarez-Torres held that the use of the fact of a prior conviction in sentencing where that fact was found by the judge rather than the jury did not violate the right to a jury trial. Although the combination of justices in the majority in Apprendi and in the dissent in Almendarez-Torres would provide a majority on the Supreme Court to overrule Almendarez-Torres, until Almendarez-Torres is overruled, it was binding. U.S. v. Terry, 240 F.3d 65 (1st Cir. 2001).
1st Circuit refuses to extend Apprendi to mandatory minimums. (120) Defendant received a 160-month sentence for his cocaine conspiracy conviction. He sought to have his sentence vacated because the amount of cocaine attributed to him was never submitted to the jury and proved beyond a reasonable doubt. See Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Because his sentence was less than the 20-year statutory maximum for an offense involving an unspecified quantity of cocaine, see 21 U.S.C. § 841(b)(1)(C), the First Circuit found no Apprendi violation. Defendant’s reliance on U.S. v. Norby, 225 F.3d 1053 (9th Cir. 2000) was misplaced. Norby was convicted of a marijuana offense carrying only a five-year statutory maximum in § 841(b)(1)(D). The correct statutory maximum for a Schedule II substance like cocaine is 20 years under § 841(b)(1)(C). The panel refused to extend Apprendi to include mandatory minimums. The majority in Apprendi declined to overrule their previous decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986), which authorizes the legislatures to increase minimum penalties based upon non-jury factual determinations, as long as the penalty imposed does not exceed the maximum range. U.S. v. Houle, 237 F.3d 71 (1st Cir. 2001).
1st Circuit refuses to extend Apprendi to factors that increase mandatory minimum sentence. (120) Based on its finding that defendant’s offense involved from one to three kilograms of heroin, the district court sentenced defendant to a ten-year mandatory minimum sentence under § 841(b)(1)(A). Defendant argued that this violated Apprendi v. New Jersey, 530, U.S. 466, 120 S.Ct. 2348 (2000), because the amount of heroin was never submitted to the jury and proved beyond a reasonable doubt. The First Circuit found no error, ruling that defendant misunderstood U.S. v. Nordby, 225 F.3d 1053 (9th Cir. 2000). Nordby struck down a ten-year sentence that exceeded the five-year maximum under § 841(b)(1)(D) for an offense involving an undetermined amount of marijuana. However, unlike the defendant in Nordby, defendant was convicted of a heroin offense and not a marijuana offense. Therefore, the five-year statutory maximum in § 841(b)(1)(D) was inapplicable. The correct statutory maximum for an unspecified quantity of heroin, a Schedule II substance, is 20 years. See § 841(b)(1)(C). Defendant’s ten-year sentence was below this statutory maximum. The panel rejected defendant’s invitation to read Apprendi as applying to factors that increase the mandatory minimum sentence for an offense. No Apprendi violation occurs when the district court sentences the defendant within the statutory maximum, even if drug quantity was never determined by a jury beyond a reasonable doubt. U.S. v. LaFreniere, 236 F.3d 41 (1st Cir. 2001).
1st Circuit finds no Apprendi error even though drug quantity not determined by jury. (120) Defendant was convicted of conspiracy to posses with intent to distribute heroin, in violation of 21 U.S.C. § 846. The amount of heroin attributed to him was neither submitted to the jury, nor found by the jury beyond a reasonable doubt. The statutory maximum under 21 U.S.C. § 841(b)(1)(C) for an offense involving an unspecified quantity of heroin is 20 years. The First Circuit held that no constitutional error occurs when the court sentences the defendant within the statutory maximum, even if that drug quantity was never determined by the jury beyond a reasonable doubt. Defendant’s 188-month sentence, below the 20-year statutory maximum, did not constitute an error under Apprendi v. New Jersey, 530, 466, 120 S.Ct. 2348 (2000). U.S. v. Baltas, 236 F.3d 27 (1st Cir. 2001).
1st Circuit finds no prejudice from failure to list firearm in indictment and submit issue to jury. (120) Defendants were convicted, in part, of using and carrying a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c)(1). They were sentenced under § 924(c)(1)(B) to a mandatory 10-years’ imprisonment for use of a semi-automatic assault weapon. Use of an ordinary firearm results in a sentence of not less than five years’ imprisonment. See § 924(c)(1) (A). After sentencing, the Supreme Court held, in U.S. v. Castillo, 530 U.S. 120 (2000), that the distinctions in § 924(c)(1) between types of firearms are elements of separate crimes and not just sentencing factors. Thus, the use of the semi-automatic weapon should have been alleged in the indictment, and the question submitted to the jury. The First Circuit held that failure to comply with Castillo was harmless error. The failure to submit the firearm question to the jury was in error, and was plain, but defendants could not show prejudice. The evidence was more than sufficient for a jury to have found beyond a reasonable doubt that defendants used an assault weapon in the robbery. The fact that the indictment did not specifically charge them with using a semi-automatic weapon was not a structural error that per se required reversal. Rather, under Neder v. United States, 527 U.S. 1 (1999), the indictment error was also subject to plain error review. Again, defendants could not show prejudice. There was no question that the petit jury in this case would have found that defendants used at least one AK-47. U.S. v. Mojica-Baez, 229 F.3d 292 (1st Cir. 2000).
1st Circuit denies Apprendi relief on habeas because any error was harmless. (120) Defendant was convicted of three carjackings in violation of 18 U.S.C. § 2119. At sentencing, the judge found that “serious bodily injury” occurred during the carjacking, and therefore increased his sentence even though this factor was never submitted to the jury. In the present case, defendant sought a certificate of appealability to permit him to file a second 28 U.S.C. § 2255 motion, claiming that under Jones v. U.S., 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the “serious bodily injury” factor should have been submitted to the jury. The First Circuit denied a certificate of appealability, noting that the Supreme Court has not made the Apprendi rule retroactive to cases on collateral review. Moreover, defendant failed to show that he was prejudiced by the failure to submit the question to the jury, because it was undisputed that the victims were shot at multiple times during the course of the car jacking and that one had been hit in the abdomen and the other in the leg, resulting in amputation below the knee. Sustache-Rivera v. U.S., 221 F.3d 8 (1st Cir. 2000).
1st Circuit rejects constitutional challenges to Armed Career Criminal Act sentence. (120) Defendant helped a 16-year old friend buy a handgun and nine rounds of ammunition. The juvenile loaded the gun with eight rounds and defendant took possession of the ninth round. Defendant was convicted of under the felon in possession statute. Based on his 3 previous violent felony convictions, defendant received a 235-month sentence under the ACCA. He argued that a 235-month sentence for possession of a single bullet was cruel and unusual punishment and violated due process. The First Circuit rejected the constitutional challenges. Defendant’s sentence was not based solely on his possession of a single bullet, but because it was a convicted felon with 3 prior violent felonies who possessed the bullet. U.S. v. Cardoza, 129 F.3d 6 (1st Cir. 1997).
1st Circuit rejects constitutional challenges to career offender sentence. (120) Defendant was convicted of a drug conspiracy, and, as a career offender, received a 25-year sentence. The 1st Circuit rejected due process and 8th Amendment challenges to the sentence. The case on which defendant relied, U.S. v. Spencer, 817 F.Supp. 176 (D.D.C. 1993), was reversed on appeal, U.S. v. Spencer, 25 F.3d 1105 (D.C. 1994). Defendant failed to distinguish his sentence from other sentences found by other courts to be in conformity with the 8th Amendment. U.S. v. Piper, 35 F.3d 611 (1st Cir. 1994).
1st Circuit upholds mandatory minimum sentence against constitutional challenge. (120) The 1st Circuit rejected defendant’s contention that the five year mandatory sentencing provision of 18 U.S.C. section 924(c)(1) was unconstitutional because it fails to provide for individualized sentencing and precludes discretion on the part of the trial judge. There is no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to provide for mandatory sentences for particular offenses. The court also rejected defendant’s claim that the mandatory sentencing scheme deprived him of effective assistance of counsel by depriving him of the opportunity to present evidence at sentencing. U.S. v. Campusano, 947 F.2d 1 (1st Cir. 1991).
1st Circuit upholds constitutionality of “substantial assistance” guideline. (120) § 5K1.1 permits a court to depart downward from the guidelines “upon motion of the government,” where a defendant has furnished substantial assistance in the investigation or prosecution of another person. The defendant argued that the requirement of a government motion violated due process by “eliminating or interfering with the sentencing court’s right to [employ] judicial discretion in individualized sentencing.” The 1st Circuit disagreed, holding that Congress’s power to control judicial sentencing discretion includes the power to specify the factors a court may consider in setting a sentence. The court noted that district courts have ample power to demand the disclosure of all pertinent information for sentencing. The court left open the possibility that in a “egregious case” a court might be justified in taking some corrective action where the prosecution stubbornly refuses to file a motion. This was not such a case. U.S. v. La Guardia, 902 F.2d 1010 (1st Cir. 1990).
1st Circuit finds no constitutional right to “individualized” sentences. (120) The 1st Circuit held there is no constitutional right to individualized sentences in noncapital cases. Since Congress is free to totally eliminate judicial sentencing discretion by enacting mandatory sentences, it is free to curtail it through the guideline sentencing scheme. Also, the factors to be considered under the guidelines continue to be highly individualized under historically accepted criteria. Courts are free to depart if they find that certain factors have not been adequately considered by the guidelines. The curtailment of judicial sentencing discretion is necessary to achieve the Sentencing Reform Act’s goal of increasing of fairness in criminal sentencing. U.S. v. Seluk, 873 F.2d 15 (1st Cir. 1989).
2nd Circuit allows consideration of defendant’s post-sentencing statements despite free speech claim. (120) Defendant was a member of the legal team for Sheikh Abdel Rahman, who was convicted of a variety of terroristic crimes. She was convicted of smuggling messages to and from the incarcerated Rahman in violation of “Special Administrative Measures” to which she was subject as a member of Rahman’s legal team. Defendant was initially sentenced to 28 months, but the Second Circuit found the court committed procedural error at sentencing. On remand, the district court resentenced her to 120 months based in part on her post-sentencing statements that indicated a lack of remorse, and suggested that she regarded her previous sentence as trivial. The Second Circuit held that the district court’s consideration of her post-sentencing statements did not violate her First Amendment right to freedom of speech. The sentencing judge was determining the characteristics of the defendant, through the contents of statements she voluntarily and publicly made. Moreover, the increase in her sentence was based on consideration of myriad other factors not properly or fully addressed at her previous sentencing. U.S. v. Stewart, 686 F.3d 156 (2d Cir. 2012).
2nd Circuit rejects Apprendi challenge to increase for committing offense while on release. (120) If a defendant commits an offense while on release and an enhancement under 18 U.S.C. § 3147 applies, guideline § 2J1.7 provides that a court should add three levels to the offense level for the offense committed while on release. Defendant argued that the three-level enhancement he received violated Apprendi, but the Second Circuit disagreed. In this Circuit, Apprendi applies not only where an enhanced sentence exceeds the statutory maximum, but also where an enhancement exposes the defendant to the risk of a sentence that exceeds the statutory maximum. U.S. v. Gonzalez, 420 F.3d 111 (2d Cir. 2005). It was undisputed that the sentence did not exceed the statutory maximum punishment that the court could have imposed, and the panel ruled that defendant was not “exposed” to a higher maximum sentence than the maximum for the offenses to which he pled guilty. U.S. v. Confredo, 528 F.3d 143 (2d Cir. 2008).
2nd Circuit says applying Crime Victim’s Act did not violate ex post facto or due process clauses. (120) The Justice for All Act took effect in October 2004, between defendant’s guilty plea and his sentencing. See 18 U.S.C. § 3771 (2004). Under the Act, crime victims have the “right to be reasonably heard at any public proceeding in the district court involving … sentencing.” Defendant’s guideline range was 151-188 months, and the court filed a presentence memo stating it intended to impose a sentence of 151 months “subject to modification at the sentencing hearing.” At sentencing, the judge heard from several victims, who urged a draconian sentence. The judge imposed a sentence of 160 months, nine months longer than he had earlier indicated. The Second Circuit held that the application of the Justice for All Act did not violate the ex post facto clause or the due process clause. The ex post facto clause does not prohibit all retroactive laws that disadvantage defendants. There was no due process violation—defendant was given the opportunity to respond after hearing from the victims. Defendant did not object to the victim statements nor request additional time to prepare a more thorough response. It was not plain error for the court to impose sentence immediately thereafter. U.S. v. Eberhard, 525 F.3d 175 (2d Cir. 2008).
2nd Circuit remands to different judge where previous judge repeatedly imposed below-guideline sentence without giving reasons. (120) The PSRs found that each defendant had an offense level of 46 and a criminal history of VI, which yielded a range of life imprisonment under the guidelines. Because none of the individual offenses carried a life sentence, the PSR recommended stacking the sentences to achieve a 240-year sentence for one defendant and a 40-year sentence for the other. The judge accepted the PSR’s calculations, but departed downward, sentencing the first defendant to three-ten year terms (30 years total) and the other to 20 years. The judge provided no coherent explanation for the departures. The court also provided no advance notice to either party of its intent to depart. On remand, the judge did the same thing, although he did read a purported “notice” written by defense counsel and provided to the judge at sentencing, which provided a brief summary of several of the factors a sentencing judge is required to consider under § 3553. The Second Circuit again remanded for resentencing, this time to a different judge. The resentencings were perfunctory, and were not preceded by a notice of a possible deviation or accompanied by a statement of reasons. Moreover, this was the third time in two years that this particular judge failed to comply with the requirements of notice and an explanation for a non-guidelines sentence, and then on remand, failed to follow a direction of the appellate court to comply with those requirements. U.S. v. Hirliman, 503 F.3d 212 (2d Cir. 2007).
2nd Circuit finds judge’s statement on Crosby remand was sufficient. (120) On defendant’s first appeal, the Second Circuit remanded under U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005), for the district court to consider whether it would have sentenced differently had the Supreme Court already decided Booker. On remand, the court did not hold an in-court hearing, but issued a written ruling that, after reviewing the memos submitted by the parties, it concluded that “the sentence imposed [was] consistent with the facts of the offense and that a nontrivially different sentence should not and will not be imposed.” The Second Circuit rejected defendant’s claim that this statement was insufficient to demonstrate that the court gave requisite consideration to the § 3553(a) factors. Crosby specifically rejected the notion that a sentencing judge must make a “specific articulation” of the manner in which the § 3553(a) factors have been considered. As long as the judge is aware of both the statutory requirements and the applicable sentencing range, and nothing in the record indicated misunderstanding, the panel assumed the court understood and observed its obligations. U.S. v. Rose, 496 F.3d 209 (2d Cir. 2007).
2nd Circuit holds that Booker did not affect standard of proof for guideline calculations. (120) During a resentencing hearing under U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005), the judge reviewed the § 3553(a) factors, and then stated that she was “constrained” to apply a preponderance of the evidence standard in determining for guideline purposes whether defendant had a leadership role in the conspiracy, and if the previously imposed sentence was proper under Crosby. Defendant argued that the court erred as a matter of law in failing to recognize that, post-Booker, while entitled to apply a preponderance standard, the sentencing court had the discretion, if it so chose, to apply a more stringent standard, including proof beyond a reasonable doubt. The Second Circuit disagreed. The discretion given judges by Booker applies only to their consideration of a guidelines range as one of the § 3553(a) factors after that range has been calculated. Booker does not affect a district judge’s obligation to perform a guidelines calculation or the burden of proof applicable to facts relevant to sentencing upon which that guideline calculation is made. U.S. v. Salazar, 489 F.3d 555 (2d Cir. 2007).
2nd Circuit finds court gave proper consideration to guidelines and other sentencing factors. (120) The district court originally sentenced defendant to 51 months for his involvement in a conspiracy to rob a federal credit union. On remand for resentencing in light of U.S. v. Booker, 543 U.S. 220 (2005), the district court conducted a second sentencing hearing, and ultimately imposed the same 51-month sentence. The court stated that the guidelines should be given “significant deference,” that the guidelines’ “advice has a very distinct resonance about it,” and that district courts “are instructed to give significant and substantial deference to the guidelines.” The Second Circuit rejected defendant’s claim that the court improperly gave complete deference to the guidelines while not giving the other § 3553(a) factors the appropriate weight. The court’s comments did not constitute procedural error. The recommended guideline range should serve as a benchmark or a point of reference or departure for a sentencing court. While a court must consider each § 3553(a) factor in imposing a sentence, the weight given to any single factor “is a matter firmly committed to the discretion of the sentencing judge and is beyond our review.” The sentence was procedurally reasonable. U.S. v. Capanelli, 479 F.3d 163 (2d Cir. 2007).
2nd Circuit will review for reasonableness after court declines to resentence under Crosby. (120) The appellate court remanded defendants’ case pursuant to U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005) for a determination of whether to resentence them in light of Booker. On remand, the district court declined to resentence either defendant, stating that it would make the same findings as to the guidelines and impose the same sentence. The Second Circuit held that it reviews a sentence for reasonableness even after a district court declines to resentence pursuant to Crosby. It was obliged to apply Booker/Fanfan to this case because it was pending on direct review. By the time a court’s decision not to resentence under Crosby reaches the appellate court, at least two claims of error related to sentencing will normally be foreclosed by the prior proceedings. First, any error in selecting a sentence under the mandatory guideline regime would be harmless if the judge decides on remand, in full compliance with now applicable requirements, that under Booker/Fanfan it would have imposed the same sentence. Second, the law of the case doctrine ordinarily will bar a defendant from reviewing challenges to rulings made by the sentencing court that were adjudicated by the appellate court, or that could have been adjudicated had the defendant made them during the initial appeal. U.S. v. Williams, 475 F.3d 468 (2d Cir. 2007).
2nd Circuit holds that any error in stating duty to impose “reasonable” sentence was not reversible. (120) After a Crosby remand, the district court declined to resentence defendant, stating that it would have imposed the same sentence under an advisory guideline regime. Defendant argued that the district court improperly stated that it was obligated to impose a “reasonable sentence” after considering the § 3553(a) factors, when in fact, the court’s duty under § 3553(a) is to impose a sentence “sufficient, but not greater than necessary, to comply with the purposes set forth in” § 3553(a)(2) (the so-called parsimony clause). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task. The Second Circuit ruled that any error by the district court in stating it was obligated to impose a reasonable sentence was not reversible. There was no indication that the court actually failed to consider the requirements of the parsimony clause when deciding whether to resentence defendant. The court actually stated that it was considering all of the § 3553(a) factors. There was no evidence in the record that the court’s reference to its duty to impose a sentence that was “reasonable” affected in any way its assessment of whether resentencing was warranted. U.S. v. Williams, 475 F.3d 468 (2d Cir. 2007).
2nd Circuit upholds its jurisdiction to review reasonableness of below-guidelines sentence. (120) Although the Sentencing Guidelines established an advisory range of 30-37 months’ imprisonment, the district court imposed a non-guidelines sentence of 24 months’ imprisonment, six months below the bottom of the advisory range. The Second Circuit upheld its jurisdiction to review the reasonableness of a below-guidelines sentence. See U.S. v. Fernandez, 443 F.3d 19 (2d Cir. 2006). The case relied on by the government, U.S. v. Colon, 884 F.2d 550 (2d Cir. 1989) (decision not to depart from the guidelines is not reviewable) was not reconcilable with the Supreme Court’s recent opinion in U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Kane, 452 F.3d 140 (2d Cir. 2006).
2nd Circuit holds that above-guideline sentence was reasonable for felon selling gun to suspected criminal. (120) Defendant pled guilty to being a felon in possession of a firearm. His guideline range was 21-27 months, but the district court imposed a non-guideline sentence of 48 months. The basis for the increase was that defendant “had a relatively uninterrupted string of criminal activity and arrests.” The district court found defendant had “no respect for the law,” having had “interaction after interaction after interaction with the criminal justice system, and his response to it is to turn around and literally, the moment he’s back on the street do something else.” Moreover, defendant was selling a gun on the street to somebody “that he suspected was about to do bad with it.” The Second Circuit held that the variance from the guideline range was reasonable. Defendant’s repeated convictions and lenient treatment by state courts supported the court’s finding that he was prone to recidivism. Moreover, defendant not only possessed the firearm as an aggravated felon, which itself established the crime, but also sold it to an undercover agent who defendant believed was involved in criminal activity. Even if the sentence had been imposed under the guidelines, an upward departure might have been warranted under § 4A1.3 and § 5K2.0. U.S. v. Fairclough, 439 F.3d 76 (2d Cir. 2006).
2nd Circuit holds that retroactive application of remedial portion of Booker did not violate Ex Post Facto Clause. (120) Defendant argued that the district court violated the Sixth Amendment and the Ex Post Facto Clause when it sentenced him for pre-Booker conduct above the maximum of the applicable guideline range established by his admissions. In U.S. v. Vaughn, 430 F.3d 518 (2d Cir. 2005), the court held that application Booker to cases on direct review does not violate the ex post facto principle of the due process clause. The current appeal raised the same issue in a slightly different context – defendant claimed that the district court, as opposed to the court of appeals on direct review, violated the Ex Post Facto Clause by retroactively applying the remedial holding of Booker at his sentencing. The Second Circuit rejected this argument for the same reasons stated in Vaughn. Defendant had fair warning that his conduct was criminal, that enhancements or upward departures could be applied to his sentence under the guidelines based on judicial fact-findings, and that he could be sentenced as high as the statutory maximum. U.S. v. Fairclough, 439 F.3d 76 (2d Cir. 2006).
2nd Circuit holds that sentencing defendant “in the alternative” did not cure Booker error. (120) Defendant was sentenced after the Supreme Court’s decision in Blakely, but before its decision in Booker. The district court sentenced defendant “in the alternative,” stating that it would impose the same sentence regardless of whether the Sentencing Guidelines were binding or not. The Second Circuit held that the error was not harmless, and remanded for resentencing. The alternative sentence is not necessarily the same one that the judge would have imposed in compliance with the duty to consider all of the factors listed in § 3553(a) or after being presented by the government a list of aggravating circumstances or by the defendant a list of mitigating circumstances that were not available for consideration under the mandatory guideline regime. U.S. v. Fuller, 426 F.3d 556 (2d Cir. 2005).
2nd Circuit holds that admission of drug quantity did not waive requirement that drug quantity be charged in indictment. (120) Defendant was indicted for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a), with no particular quantity specified in the indictment. In order to impose a sentence above the statutory maximum for a drug offense involving an indeterminate quantity of drugs, the type and quantity of drugs must be charged in the indictment and submitted to the jury. However, a defendant’s plea allocution effectively waives the requirement of submitting the quantity question to the jury. The Second Circuit held that admission of a drug quantity in a plea allocution does not waive the requirement that a defendant be charged with drug quantity in the indictment. When a defendant has been indicted for a drug crime involving an unspecified quantity of drugs, the defendant cannot be sentenced above the statutory maximum for an indeterminate quantity of drugs, as set forth in § 841(b)(1) (C). U.S. v. Cordoba-Murgas, 422 F.3d 65 (2d Cir. 2005).
2nd Circuit finds no Sixth Amendment violations where defendant did not object to facts in PSR. (120) Prior to sentencing, defendant objected to the PSR’s recommended sentence under Blakely v. Washington, 542 U.S. 296 (2004). Thus, the Second Circuit considered the course to follow where an objection to the compulsory use of the Sentencing Guidelines has been preserved. Defendant pled guilty to possessing a stolen firearm. Inherent in his plea was an admission that the crime involved a stolen firearm. Therefore, the stolen firearm enhancement did not violate defendant’s Sixth Amendment rights. The imposition of criminal history points based on two prior convictions also did not violate the Sixth Amendment. Defendant did not object to the PSR’s recitation of such convictions. The PSR noted, without objection from defendant, that he was serving a 6-12 month term of probation at the time of the offense. “While the exact scope of the phrase ‘fact of a prior conviction’ has yet to be determined, the conviction itself, and the type and length of a sentence imposed seems logically to fall within this exception.” Finally, the prohibited person enhancement under § 2K2.1 also did not violate the Sixth Amendment. Defendant made no objection to the facts contained in the PSR; therefore, the facts of his prior conviction could be taken as admitted. U.S. v. Fagans, 406 F.3d 138 (2d Cir. 2005).
2nd Circuit remands for court to determine whether resentencing is necessary. (120) The Courts of Appeals have adopted three different responses in reviewing sentences imposed before U.S. v. Booker, 543 U.S. 220 (2005) where an unpreserved error violates the Sixth Amendment. In U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005), the Second Circuit decided that the proper response was remand for consideration by the sentencing judge of whether resentencing was needed, and if so, to resentence. Here, the Second Circuit reaffirmed this approach and remanded to the district court for an opportunity to determine, whether, under Booker, the sentence originally imposed would have been materially different, and, if so, to resentence. The panel rejected the Eleventh Circuit’s approach in U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), which found that because the effect of the error was so uncertain, it would only remand if the defendant could show a reasonable probability that the result would have been different but for the error. “[T]he trial context differs so fundamentally from the sentencing context as to render inapplicable the precise methodology by which the plain error doctrine has been applied to trial errors.” The panel also rejected the Third, Fourth and Sixth Circuit’s approach that a Sixth Amendment error requires a remand for resentencing. There is no need to reconvene a sentencing hearing where the sentencing judge advises that the original sentence would not have been materially different if imposed without error. U.S. v. Williams, 399 F.3d 450 (2d Cir. 2005).
2nd Circuit refuses to grant successive § 2255 petition until Supreme Court makes Blakely retroactive. (120) Relying on Blakely v. Washington, 124 S.Ct. 2531 (2004), defendant requested authorization to file a second or successive § 2255 petition. However, an applicant may not raise a new claim in a second or successive § 2255 petition unless there is newly discovered evidence, or he can show that his claim is based on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. Blakely itself stated nothing about its retroactivity, and to date, the Supreme Court has not, in any other case, announced Blakely to be a new rule of constitutional law, nor has the Court held it to apply retroactively on collateral review. Therefore, the Second Circuit ruled that it would refuse to consider granting authority to file second/successive petitions until the Supreme Court makes Blakely retroactive on collateral review. Carmona v. U.S., 390 F.3d 200 (2d Cir. 2004).
2nd Circuit holds mandates pending Supreme Court’s decision in Booker and Fanfan. (120) Defendant challenged a reckless endangerment enhancement on the basis of the Supreme Court’s decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). The Second Circuit noted that in U.S. v. Mincey, 380 F.3d 102 (2d Cir. 2004), it decided that it would adhere to the law of the circuit until such time as the Supreme Court determines that the reasoning of Blakely is to apply to the federal guidelines. Nonetheless, as it has in all recent cases, the mandate in this case was held pending the Supreme Court’s decision in U.S. v. Booker, and U.S. v. Fanfan. Any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, but the court will not reconsider those portions of its opinion that address defendant’s sentence until after the Supreme Court’s decision in Booker and Fanfan. The parties will be given 14 days following the Supreme Court’s decision to file a supplemental petition for rehearing in light of Booker and Fanfan. U.S. v. Morgan, 386 F.3d 376 (2d Cir. 2004).
2nd Circuit holds that waiver provision foreclosed right to make Apprendi challenge. (120) Defendant’s plea agreement calculated a guideline range of 97-121 months, and explicitly provided that defendant “agree[d] to this guidelines calculation.” Defendant also waived the right to appeal his sentence if the court imposed a sentence of 121 months or below. Defendant received a 97-month sentence. He argued that the waiver was unenforceable because his sentence violated Apprendi. Since the indictment did not specify a drug quantity and there was no jury finding or stipulation on the issue, defendant argued that his sentence should have been determined under the “default” provision for marijuana offenses, 21 U.S.C. § 841(b)(1)(D), which carries a maximum penalty of five years. The Second Circuit did not reach the merits of the Apprendi claim, finding that the waiver provision foreclosed his right to appeal on that ground. A defendant who has secured the benefits of a plea agreement and knowingly and voluntarily waives the right to appeal a certain sentence may not appeal a sentence conforming to such an agreement. Defendant reaped substantial benefits under his plea agreement. Defendant not only received the sentence within the range he bargained for, he received a sentence at the bottom of that range. U.S. v. Morgan, 386 F.3d 376 (2d Cir. 2004).
2nd Circuit says obstruction increase not double counting where base offense level came from fraud, not perjury, conviction. (120) Defendant was convicted of several counts of fraud and perjury. The district court grouped defendant’s perjury with his underlying fraud offense, using the fraud as the base offense level, and then enhanced that by two levels for the perjury. The Second Circuit rejected defendant’s argument that the obstruction increase resulted in double counting for the perjury offense. Defendant’s sentence was calculated using the underlying fraud count as the base. Absent the two-level obstruction increase, the sentence would not have reflected defendant’s perjury. U.S. v. Fiore, 381 F.3d 89 (2d Cir. 2004).
2nd Circuit holds that Apprendi does not require proof that defendant knew type and quantity of drugs. (120) Defendant argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the government was required to prove to the jury beyond a reasonable doubt that he knew the type and quantity of drugs involved in his offense, and that the court erred in failing to hold the government to that burden. The Second Circuit disagreed. Apprendi is applicable only where the sentencing factors increase the penalty for a crime beyond the prescribed statutory maximum. Circuit and Supreme Court precedent make clear that imposition of a mandatory minimum sentence that does not exceed the otherwise applicable statutory maximum does not trigger Apprendi’s heightened requirements. See Harris v. U.S., 536 U.S. 545 (2002) and U.S. v. Luciano, 311 F.3d 146 (2d Cir. 2001). Defendant did not present any basis for disturbing the settled principle that drug dealers convicted under § 841(a) need not know the type and quantity of drugs in their possession in order to be subject to sentencing enhancements in § 841(b). U.S. v. King, 345 F.3d 149 (2d Cir. 2003).
2nd Circuit holds that Apprendi rule does not apply retroactively to initial § 2255 motions. (120) At sentencing, the district court found, by a preponderance of the evidence, that defendant possessed more than 50 grams of cocaine, subjecting him to a mandatory minimum term of 20 years’ imprisonment. More than a year after his appeal was denied, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Defendant then filed a § 2255 motion arguing that his sentence violated Apprendi. The court found that all of defendant’s claims were time-barred under the one-year statutory of limits adopted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). However, the AEDPA contains special provisions for § 2255 motions that are based upon new constitutional rules. The Second Circuit joined at least seven other circuits in holding that the Apprendi rule is a new, but not a watershed, criminal procedural rule, and therefore it does not apply retroactively to initial § 2255 motions for habeas relief. Coleman v. U.S., 329 F.3d 77 (2d Cir. 2003).
2nd Circuit holds that Apprendi error was harmless where total term of imprisonment was unaffected. (120) The government did not charge in the indictment and the jury did not find beyond a reasonable doubt the quantity of marijuana involved in the conspiracy. Therefore, defendant’s 151-month sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because it exceeded the 120-month statutory maximum for defendants with a prior felony drug offense who commit an offense involving an indeterminate amount of marijuana. See 21 U.S.C. § 841(b)(1)(D). The error was “plain” in light of Apprendi and U.S. v. Thomas, 274 F.3d 655 (2d Cir. 2001) (en banc). However the Second Circuit concluded that the error did not affect defendant’s substantial rights, and therefore did not warrant reversal. An erroneous sentence on one count of a multiple-count conviction does not affect a defendant’s substantial rights where the total term of imprisonment remains unaffected. Defendant received a concurrent 151-month sentence for his money laundering conviction, which carried a statutory maximum of 240 months. Any Apprendi error with respect to defendant’s marijuana sentence did not affect his total term of imprisonment. U.S. v. Henry, 325 F.3d 93 (2d Cir. 2003).
2nd Circuit says Apprendi did not bar consideration of laundered money not included in indictment. (120) Defendant was convicted of violating the Clean Air Act and conspiracy to promote money laundering. He argued that Apprendi v. New Jersey, 530 U.S. 466 (2000) required the court to limit the amount of money laundered under § 2S1.1 to the $939,079.98 identified in the indictment. The district court agreed, excluding from its calculations the $1.45 million for the remaining projects that were not included in the indictment. The Second Circuit reversed, holding that Apprendi did not preclude the court from including funds derived from uncharged projects. “Apprendi does not apply to enhancements that determine a sentence that is within the applicable statutory maximum and that would otherwise be above the applicable statutory minimum.” U.S. v. Norris, 281 F.3d 357 (2d Cir. 2002). The statutory maximum term for the money laundering offense was 20 years. Had the district court found, by a preponderance of the evidence, that the value of the laundered funds was over $2 million, Apprendi would only have been implicated only if the sentencing judge had imposed a sentence greater than the statutory maximum of 240 months. U.S. v. Thorn, 317 F.3d 107 (2d Cir. 2003).
2nd Circuit holds that mere exposure to sentence beyond statutory maximum did not violate Apprendi. (120) The district court granted defendant’s motion under 28 U.S.C. § 2255, finding that his 20-year sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because (1) the sentencing judge’s finding that his crime involved more than five kilograms of cocaine exposed defendant to the possibility of a life term, which was greater than the otherwise applicable 30-year maximum under 21 U.S.C. § 841(b)(1)(C); and (2) the application of the 20-year mandatory minimum resulted in a sentence that exceeded the maximum period of imprisonment under the Sentencing Guidelines. The Second Circuit held that defendant’s 20-year sentence did not violate Apprendi because it did not exceed the 30-year maximum otherwise applicable without regard to drug quantity. Violation of Apprendi arises when the defendant is sentenced on the basis of a triggering fact not found by the jury to a sentence that exceeds the maximum that would have been applicable but for the triggering fact. If a defendant’s sentence is within the otherwise applicable maximum, no violation of Apprendi has occurred, even though the defendant was sentenced under a statute that allows for a sentence that exceeds that otherwise applicable maximum. See Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406 (2002). The problem with the court’s second rationale was that the range established by the guidelines is not the maximum sentence allowed by law. U.S. v. Luciano, 311 F.3d 146 (2d Cir. 2002).
2nd Circuit holds that overwhelming drug quantity evidence precluded correction of plain error. (120) In U.S. v. Guevara, 277 F.3d 111 (2d Cir. 2001), the Second Circuit found that defendant was sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and that there was plain error that seriously “affected the fairness of the judicial proceedings.” However, in the recently decided U.S. v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002), the Supreme Court held that where plain error analysis applies to an Apprendi error, the reviewing court must consider the weight of trial evidence bearing on the omitted elements; and if such evidence is “overwhelming” and “essentially uncontroverted,” there is “no basis for concluding that the error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” On rehearing, the Second Circuit found that the evidence that defendant’s offense involved at least one kilogram of heroin was both “overwhelming” and “essentially uncontroverted.” An informant hired to transport heroin from Colombia into the US was given luggage containing 133 wax pellets and four packets. Each pellet contained two to three grams of heroin, and each packet contained about 300 grams of heroin. A Colombian police officer indicated that mules who ingest wax pellets for smuggling purposes typically carry between 900 and 1100 grams of heroin per trip. Thus, the error here did not affect the fairness of the judicial proceedings, and the appellate court lacked discretion to correct the Apprendi error. U.S. v. Guevara, 298 F.3d 124 (2d Cir. 2002).
2nd Circuit holds that indictment’s failure to charge drug quantity was harmless error. (120) The indictment did not specify the drug quantity that defendant conspired to import into the U.S., but one of the code sections listed designated the quantity-specific punishment for the importation of five kilograms or more of cocaine, 21 U.S.C. § 960(b)(1)(B)(ii). In U.S. v. Thomas, 274 F.3d 655 (2d Cir. 2001) the Second Circuit, en banc, found that after Apprendi v. New Jersey, 530 U.S. 466 (2000), drug type and quantity are elements of the offense under 21 U.S.C. § 841 that must be charged in the indictment and submitted to the jury for its finding beyond a reasonable doubt. The Second Circuit held that (1) Apprendi and Thomas apply to convictions under 21 U.S.C. § 960, the drug importation statute, and (2) inclusion of drug quantity only through a parenthetical reference to § 960(b)(1)(B)(ii) is insufficient to properly charge drug quantity. Nonetheless, the error did not violate defendant’s substantial rights. Despite the indictment’s insufficiency, defendant clearly had notice of the quantity-based penalty provisions to which he was subject. His cooperation agreement identified the levels of punishment that would apply to defendant if he pled guilty. Defendant was advised again of these terms in his plea hearing. Further, he acknowledged 262-327 months as the estimated sentencing guideline range. U.S. v. Doe, 297 F.3d 76 (2d Cir. 2002).
2nd Circuit reverses based on Apprendi error where no “overwhelming” evidence of drug quantity. (120) Defendant argued for the first time on appeal that he was improperly sentenced based on drug quantities not determined by the jury beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). After oral argument in this case, the Supreme Court decided U.S. v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002), which applied plain error review to defendants’ claims that they were sentenced in violation of Apprendi. In reversing the Fourth Circuit’s conclusion that the failure to charge drug quantity in the indictment deprived the court of jurisdiction to impose a sentence above the statutory maximum for offenses involving an indeterminate amount of drugs, the Supreme Court found the evidence of drug quantity that had been presented at trial was both “overwhelming” and “essentially uncontroverted.” The Second Circuit ruled that where the drug quantity evidence against the defendants falls below the “overwhelming” and “essentially uncontroverted” standard of Cotton, it would correct the Apprendi error. The evidence against defendant was not sufficient to meet Cotton’s “overwhelming” standard. The trial testimony indicated drug quantities relating to the importation of drugs between 1993 and “late 1995” or “early 1996.” Defendant’s indictment, however, covered only a six-day period in July 1996. Moreover, there were no statements from the plea allocution that could provide “uncontroverted” evidence that defendant was responsible for the additional drugs. U.S. v. Doe, 297 F.3d 76 (2d Cir. 2002).
2nd Circuit holds that failure to include drug quantity in superceding indictment was not prejudicial. (120) Defendants argued that their drug sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because drug quantity was not alleged in the superseding indictment or found by the jury beyond a reasonable doubt. Because the quantity issue was actually submitted to the jury and decided beyond a reasonable doubt, the Second Circuit found that the omission in the superceding indictment did not prejudicially affect any defendants’ substantial rights or seriously affect the fairness, integrity or public reputation of the proceedings. The superceding indictment’s failure to allege drug quantity could not have caused any defendant to believe that quantity was not a factor in the case. While defendants might not have realized at the outset that drug quantity would be decided by the jury, it was well established that the court, in determining facts material to sentencing, may rely on evidence admitted at trial. In addition, there was no error in the district court’s decision to submit interrogatories to the jury with respect to drug quantity. Although defendants also contended that there were procedural errors in the submission of the interrogatories to the jury, they made no such objections at trial. U.S. v. Flaharty, 295 F.3d 182 (2d Cir. 2002).
2nd Circuit says Apprendi error not plain where court could have imposed consecutive sentences. (120) Because the jury did not determine the quantity of cocaine involved in any of the offenses, under Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant should not have been sentenced on any individual count to more than 240 months’ imprisonment. Thus, his 480-month sentences on counts one and two constituted error under Apprendi. The Second Circuit ruled that because the 240-month maximum prison terms would have been imposed consecutively in order to reach a sentence within the prescribed guideline range, § 5G1.2(d), defendant’s substantial rights were not affected by the error. Where the sentence that has been erroneously imposed by the court is identical to the sentence that is required by a proper application of § 5G1.2(d), the error does not affect a defendant’s substantial rights. U.S. v. Blount, 291 F.3d 201 (2d Cir. 2002).
2nd Circuit rejects Apprendi where sentence did not exceed statutory maximum for one count. (120) Defendant was convicted of a number of fraud and money laundering counts. He argued that a number of adjustments the court made to his offense level calculation violated to Apprendi v. New Jersey, 530 U.S. 466 (2000). The Second Circuit rejected the argument. Defendant’s 70-month sentence, although greater than the statutory maximum he faced on some counts, did not exceed the 20-year statutory maximum he could have received on the money laundering counts. His Apprendi claim was wholly without merit. U.S. v. Szur, 289 F.3d 200 (2d Cir. 2002).
2nd Circuit rejects most Apprendi challenges but reverses one sentence. (120) Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), defendants each challenged their sentences. The Second Circuit rejected most of the challenges, but reversed one defendant’s sentence under Apprendi. Because defendant Banks was not sentenced to more than 20 years’ imprisonment, he was not entitled to a sentence reduction. See 21 U.S.C. § 841(b)(1)(C) (providing for 20-year maximum for offenses involving unspecified quantity of drugs). Defendant Burrell received concurrent life sentences on CCE and drug conspiracy charges. Even without a jury finding on drug quantity, the court could have properly sentenced defendant to life imprisonment on the CCE count. See 21 U.S.C. § 848(a). Defendant Miles had two drug convictions. The guidelines called for a minimum sentence of 30 years. Where, as here, a defendant is convicted of two crimes and the sentence to be imposed on the count carrying the maximum penalty is less than the total punishment mandated by the guidelines, the court must run the sentences consecutively to the extent necessary to achieve the guideline punishment. See USSG § 5G1.2(d). This requirement would have resulted in the same sentence she actually received, 30 years. Finally, defendant Brian Burrell received a life sentence based both on the quantity of drugs the court attributed to him and on his status as a career criminal. Without the court’s drug quantity finding, he was subject to only a 30-year maximum sentence. The panel remanded for resentencing to no more than 30 years. U.S. v. Burrell, 289 F.3d 220 (2d Cir. 2002).
2nd Circuit holds that advice rendered incorrect by Apprendi did not warrant reversal. (120) Defendant argued that, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the district court erred in telling him that the government had to prove his involvement with only a “detectable” quantity of heroin to expose him to a maximum sentence of life imprisonment. The Second Circuit found that, while the district court’s statement was inaccurate after Apprendi, the mistake did not require reversal on plain error review. The drug quantity was essentially uncontroverted. Defendant stipulated in his plea agreement that the conspiracy involved at least one kilogram of heroin and twice confirmed to the district court that this drug quantity was accurate. Where a defendant has formally and voluntarily admitted a fact in a proceeding to assure the accuracy of the admission, a reversal for plain error in a misstatement regarding the burden of proof as to that fact is not necessary to achieve fairness for the defendant or to protect the integrity or reputation of judicial proceedings. U.S. v. Gutierrez-Rodriguez, 288 F.3d 472 (2d Cir. 2002).
2nd Circuit upholds sentence enhancement based on aggravated felony not charged in indictment. (120) Defendant was charged with and pled guilty to illegally reentering the US after deportation “subsequent to a conviction for the commission of an aggravated felony,” a 1984 robbery conviction in New York, in violation of 8 U.S.C. § 1326(a), (b)(2). In fact, the robbery conviction was not an aggravated felony under applicable law. Nonetheless, the district court applied the aggravated felony enhancement under § 1326(b)(2) and USSG § 2L1.2(b) based on a 1988 federal drug conviction. The Second Circuit held that the use of an aggravated felony not charged in the indictment was proper. In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that subsection (b) of § 1326 was a penalty provision which “simply authorizes a court to increase the sentence for a recidivist” and did not define a separate crime.” Therefore, neither the statute nor the constitution requires the government to charge the prior conviction in the indictment. Almendarez-Torres was not overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000). U.S. v. Mercedes, 287 F.3d 47 (2d Cir. 2002).
2nd Circuit upholds sentence despite Apprendi error where § 5G1.2(d) would have required consecutive sentences. (120) Where a defendant is charged in an indictment with a § 841 offense involving a specific threshold quantity of drugs, and pleads guilty, but during a plea proceeding admits only the non-quantity elements of the offense and disputes quantity, the district court may accept the plea only for a § 841 crime involving an unspecified drug quantity. U.S. v. Thomas, 274 F.3d 655 (2d Cir. 2001) (en banc). Here, defendant admitted to various marijuana offenses, but denied that the quantity of marijuana involved exceeded 100 kilograms. Thus, the only crimes for which the district court could have accepted his plea were the lesser-included offenses involving an unspecified quantity of marijuana, which carried maximum sentences of 60 months each. The Second Circuit held that although defendant’s 63-month concurrent sentence on each of the four counts violated Apprendi v. New Jersey, 530 U.S. 466 (2000) and Thomas, the plain error did not affect defendant’s substantial rights. Absent the error, the district court would have been required by § 5G1.2(d) to impose consecutive terms of imprisonment for defendant’s four counts of conviction in order to make the total sentence equal 63 months. U.S. v. McLean, 287 F.3d 127 (2d Cir. 2002).
2nd Circuit holds that Apprendi error is harmless where “stacking” provisions would require consecutive sentences. (120) Because defendant’s 110-month drug conspiracy sentence exceeded the five-year default maximum for offenses involving an unspecified quantity of marijuana, his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Although the error was plain, the Second Circuit held that the error did not affect defendant’s substantial rights. Under the “stacking” provisions of the guidelines, USSG § 5G1.2(d), even if defendant’s sentence on the conspiracy count was changed to 60 months, his total term of imprisonment (110 months) would not change; the conspiracy count would run consecutively to the possession counts to the extent necessary to achieve that term. Where a defendant is convicted on multiple counts, any error in exceeding the statutory maximum on a single count is harmless if the application of USSG § 5G1.2 would require the sentence on one or more of the remaining counts to be run consecutively so that defendant’s total term of imprisonment remains unchanged. U.S. v. Outen, 286 F.3d 622 (2d Cir. 2002).
2nd Circuit holds federal drug statute is not unconstitutional after Apprendi. (120) Defendant argued that Apprendi v. New Jersey, 530 U.S. 466 (2000) rendered 21 U.S.C. § 841 unconstitutional on its face, and therefore his convictions and his sentence must be vacated. The Second Circuit, joining every other circuit to have addressed this issue, rejected this argument. See, e.g. U.S. v. Collazo-Aponte, 281 F.3d 320 (1st Cir. 2001); U.S. v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc). Drug quantity becomes an “element of the offense” under § 841 only where “the type and quantity of drugs involved … may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs.” U.S. v. Thomas, 274 F.3d 655 (2d Cir. 2001) (en banc). An indictment that charges a violation of § 841(a) and includes no allegation of drug quantity states a crime and is a valid indictment. There is no constitutional problem with the government charging drug quantities that support penalties greater than those of the provisions relating to indeterminate amounts. U.S. v. Outen, 286 F.3d 622 (2d Cir. 2002).
2nd Circuit requires sentence for drug that triggers lowest sentencing range. (120) In U.S. v. Barnes, 158 F.3d 662 (2d Cir. 1998), the court held that where a jury returns a general guilty verdict on a single count of conspiracy involving multiple controlled substances, the district court must sentence the defendant as if convicted of a conspiracy involving only the drug that triggers the lowest statutory sentencing range. The Second Circuit held that defendant’s sentence here violated Barnes. Although the district court had found the jury would have had no basis for finding a marijuana conspiracy rather than a cocaine conspiracy, the panel disagreed, finding sufficient trial evidence that defendant was involved in a marijuana conspiracy. One witness testified to buying marijuana from defendant on one or two occasions. A second witness testified that he purchased marijuana from defendant “on a number of occasions,” from “around 1983 until 1990,” thereby demonstrating a course of dealing in marijuana spanning a number of years. The same witness testified that around 1988 or 1989 he began purchasing quarter-pound quantities of marijuana from defendant. The district court’s charge to the jury, using the disjunctive “marijuana or cocaine,” also left open the possibility that the jury may have convicted defendant of a conspiracy to distribute only marijuana. The error was plain and affected defendant’s substantial rights. U.S. v. Zillgitt, 286 F.3d 128 (2d Cir. 2002).
2nd Circuit vacates mandatory minimum sentence based on Apprendi. (120) Based on its drug quantity findings, the district court sentenced defendant to a 240-month mandatory minimum sentence under § 841(b)(1)(A). After defendant was sentenced, the Second Circuit decided U.S. v. Thomas, 274 F.3d 655 (2d Cir. 2001) (en banc), which held that Apprendi applies to drug quantity findings under the federal drug statute, and U.S. v. Guevara, 277 F.3d 111 (2d Cir. 2001), amended 298 F.3d 124 (2d Cir. 2002), which held that Apprendi is violated when a judge’s finding triggers a mandatory minimum sentence. Here, drug quantity was never submitted to the jury because defendant pleaded guilty. At his plea hearing, defendant explicitly stated his willingness to have the district judge determine drug quantity because, as defendant’s attorney acknowledged, drug quantity was not an element of a § 841 offense. In light of his counsel’s comment, it was clear that defendant’s decision to submit the drug-quantity question to the judge was influenced by his understanding that he would not have been entitled to a jury determination of that issue. The Second Circuit held that defendant’s sentence violated Apprendi and remanded for resentencing. Any sentence under § 841(b)(1)(A) or (B) must be based either on an allocution that settles the issue of drug quantity or on a finding as to that issue by a fact-finder applying a reasonable doubt standard. The district court has discretion to determine whether that means allowing defendant to withdraw or modify his plea or to proceed to trial on the issue of drug quantity alone. U.S. v. Yu, 285 F.3d 192 (2d Cir. 2002).
2nd Circuit holds that fact of prior conviction is sentencing factor, not separate element of offense. (120) In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that 8 U.S.C. § 1326(b), which increases the maximum sentence for an alien who illegally reentered the country after deportation following conviction for an aggravated felony, does not set out a separate offense, but rather a sentencing factor. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court expressly declined to overrule Almendarez-Torres. Nonetheless, defendant argued that § 924(c)(1)’s provision for a sentencing enhancement for a prior conviction for using or carrying a firearm during a crime of violence or a drug-trafficking crime falls outside the scope of Almendarez-Torres. The Second Circuit found this argument foreclosed by circuit precedent. See e.g., U.S. v. Santiago, 268 F.3d 151 (2d Cir. 2001). The determination of the fact of “a conviction for commission of an aggravated felony” under § 1326 or the fact that a defendant “has three previous convictions … for a violent felony or a serious drug offense” under § 924(e), is no different from the fact of a conviction “under this subsection” under § 924(c)(1). U.S. v. Anglin, 284 F.3d 407 (2d Cir. 2002).
2nd Circuit holds that Apprendi requirements do not apply to sentencing guideline increases. (120) The district judge, acknowledging that his view was contrary to the holdings of numerous circuits, held that the requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000) applies to enhancements under the sentencing guidelines. The Second Circuit reversed, holding that under applicable precedents, Apprendi does not apply to enhancements that determine a sentence that is within the applicable statutory maximum and that would be above the applicable statutory minimum. See U.S. v. Garcia, 240 F.3d 180 (2d Cir. 2001); and U.S. v. White, 240 F.3d 127 (2d Cir. 2001). This holding has not been eroded by U.S. v. Guevara, 277 F.3d 111 (2d Cir. 2001), amended 298 F.3d 124 (2d Cir. 2002), which applies Apprendi to circumstances where a factual determination triggers a mandatory minimum sentence that is higher than the top of the otherwise applicable guideline range. The top of the guideline range is not a “statutory maximum.” U.S. v. Norris, 281 F.3d 357 (2d Cir. 2002).
2nd Circuit says Apprendi bars use of mandatory minimum that exceeds otherwise highest available sentence. (120) Defendant’s guideline sentencing range was 168-210 months. However, based on the court’s finding that defendant’s offense involved more than one kilogram of heroin, the court found that defendant was subject to a mandatory minimum sentence of 240 months under 21 U.S.C. § 841(b)(1)(A)(i). The Second Circuit concluded that, after Apprendi v. New Jersey, 530 U.S. 466 (2000), a statutory mandatory minimum sentence specified in either § 841(b)(1)(A) or (b) cannot mandate a prison sentence that exceeds the highest sentence to which the defendant would otherwise have been exposed (i.e. the top of the federal guideline range) if the applicability of subsections (A) or (B) depends on a drug quantity finding not made by the jury. The only other circuit that has addressed this narrow issue rejected the defendant’s challenge on the ground that Apprendi “only applies to sentences beyond the prescribed statutory maximum.” U.S. v. Harris, 243 F.3d 806, 809 (4th Cir.), affirmed, Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013). A number of other circuits have broadly stated that Apprendi is not implicated where a sentence falls within the maximum sentence prescribed in the applicable statute. However, the panel sided with the Sixth and Ninth Circuits, which have held that Apprendi does apply to mandatory minimums. This holding is consistent with McMillan v. Pennsylvania, 477 U.S. 79 (1986) because here, the mandatory minimum term imposed by the district court exceeded the otherwise applicable sentencing range. McMillan is limited “to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict.” U.S. v. Guevara, 277 F.3d 111 (2d Cir. 2001), amended 298 F.3d 124 (2d Cir. 2002).
2nd Circuit says Apprendi does not bar using relevant conduct from one count to increase concurrent sentence on second count beyond statutory maximum for first count. (120) The statutory maximum for defendant’s tax count was 12 months, but his guideline range was 24-30 months, based on uncharged relevant conduct. However, defendant was also convicted of bank fraud, with a 360-statutory maximum, so the court imposed concurrent 24-month sentences on both the tax and the bank fraud counts. On appeal, defendant argued that it violated Apprendi v. New Jersey, 530 U.S. 466 (2000) to use relevant conduct for an offense charged in one count to enhance a concurrent sentence on a second count because this resulted in a sentence that exceeded the maximum statutory sentence for the first count. The Second Circuit found no error, relying on U.S. v. White, 240 F.3d 127, 135-36 (2d Cir. 2001), which upheld the “propriety of permitting relevant conduct for one offense to enhance an aggregate sentence on multiple counts.” Here, the aggregate sentence was imposed because the defendant committed two offenses, “not because a statutory maximum for any one offense has been exceeded.” U.S. v. Feola, 275 F.3d 216 (2d Cir. 2001).
2nd Circuit holds type and quantity of drug must be treated as element where it increases statutory maximum. (120) The Second Circuit held that after Apprendi v. New Jersey, 530 U.S. 466 (2000), drug type and quantity are elements of the offense under 21 U.S.C. § 841 that must be charged in the indictment and submitted to the jury for its finding beyond a reasonable doubt. Even if a threshold drug quantity is not charged in the indictment or found by the jury, however, drug type and quantity may be used to determine the appropriate sentence so long as the sentence imposed is not greater than the maximum penalty authorized by statute for the offense charged in the indictment and found by the jury. Moreover, where drug type and quantity are used to authorize a sentence above the otherwise applicable statutory maximum, the failure either to charge drug type and quantity in the indictment or to submit the question of drug type and quantity to the jury is subject to plain error review pursuant to Fed. R. Crim. P. 52(b) when the defendant raised no objection before the district court. Here, the imposition of a 292-month sentence, 52 months beyond the statutory maximum penalty for the offense charged, 21 U.S.C. § 841(b)(1)(C), constituted error which was plain and affected the defendant’s substantial rights, and seriously affected the fairness and public reputation of the judicial proceedings. U.S. v. Thomas, 274 F.3d 655 (2d Cir. 2001).
2nd Circuit holds that jury’s response to special interrogatories on drug quantity did not bind court. (120) At the government’s request, the jury was given special interrogatories that asked whether the government had proved that the alleged importation conspiracy involved (1) 500 grams or more of cocaine, and (2) five kilograms or more of cocaine. The jury deadlocked on drug possession charges, but found him guilty of the importation charges. On the special interrogatories, the jury voted unanimously that the government had proved a conspiracy to import 500 grams or more of cocaine, but only three jurors found that the government had proved a conspiracy to import five kilograms or more of cocaine. Defendant argued that the imposition of a sentence based on five or more kilograms of cocaine, in disregard of the jury’s answers to the special interrogatories, violated the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Second Circuit disagreed. Prior to Apprendi, it was well-settled that the district court was not bound by the jury’s findings on special interrogatories concerning drug quantity. Apprendi was not applicable here. The statutory maximum provided for those convicted of conspiracy to import any quantity of cocaine is 240 months. Defendant’s 168-month sentence was well below the sentence he could have received with no finding of drug quantity. U.S. v. Dennis, 271 F.3d 71 (2d Cir. 2001).
2nd Circuit says Apprendi does not apply to question of whether convictions were committed on separate occasions. (120) Defendant was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Based on his three prior serious convictions, each arising from offenses committed on different occasions, the district court imposed a 15-year sentence under 18 U.S.C. § 924(e). Defendant argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the predicate facts supporting a § 924(e) sentencing enhancement are elements of a separate, aggravated offense that must be charged in the indictment and found by a jury beyond a reasonable doubt. He argued that the exception left open in Apprendi for the “fact of a prior conviction” as in the Supreme Court’s decision in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), does not cover the separate requirement in § 924(e) that convictions be “committed on occasions different from one another.” The Second Circuit disagreed. First, the determination of “the fact of a prior conviction” implicitly entails many subsidiary findings, not the least of which is that the defendant being sentenced is the same defendant who previously was convicted of those prior offenses. The separateness of the convictions is not a fact which is different in kind from the types of facts already left to the sentencing judge by Almendarez-Torres and Apprendi. Recidivism has traditionally been an issue for judges, not juries. U.S. v. Santiago, 268 F.3d 151 (2d Cir. 2001).
2nd Circuit finds Apprendi inapplicable where sentence was below statutory maximum. (120) Defendant pled guilty to the importation of heroin, in violation of 21 U.S.C. § 952(a). The PSR identified heroin as the type of drug imported, and defendant did not contest that fact. Pursuant to 21 U.S.C. §§ 961(b)(1) and (2), maximum sentences of life and 40 years’ imprisonment are permitted for violations of 21 U.S.C. § 952(a), depending on the quantity of heroin involved in the offense. Thus, defendant’s 30-year sentence was within the lowest maximum for heroin offenses. Therefore, the amount of heroin that defendant pled guilty to importing did not affect the statutory maximum. Thus, the Second Circuit found Apprendi v. New Jersey, 530 U.S. 466 (2000) inapplicable. See U.S. v. Breen, 243 F.3d 591 (2d Cir. 2001). U.S. v. Chavez, 267 F.3d 76 (2d Cir. 2001).
2nd Circuit holds that Apprendi does not apply retroactively to cases on collateral review. (120) Defendant filed an application for leave to file a second or successive § 2255 motion, arguing that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), and that Apprendi announced a “new rule of constitutional law” warranting retroactive application under the principles established by Teague v. Lane, 489 U.S. 288 (1989). However, in Tyler v. Cain, 121 S.Ct. 2478 (2001), the Supreme Court held that a new rule is “made retroactive to cases on collateral review” only if the Supreme Court itself holds it to be retroactive. Given that no pronouncement has been made yet by the Supreme Court on the retroactivity of Apprendi, the Second Circuit denied rejected the petition. Forbes v. U.S., 262 F.3d 143 (2d Cir. 2001).
2nd Circuit finds no Apprendi error where defendant received sentence less than statutory maximum. (120) Defendant was sentenced to 324 months’ imprisonment for a continuing criminal enterprise count, and to 240 months’ imprisonment for each of the remaining six drug distribution counts. Defendant argued that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), the district court’s findings as to the quantity of cocaine involved and other facts that increased the sentencing range required by the guidelines had to be submitted to the jury and proved beyond a reasonable doubt. The Second Circuit found Apprendi inapplicable. The CCE statute provides for a maximum sentence of life imprisonment. 21 U.S.C. § 848(a). Because defendant’s 324-month sentence was less than life, there was no Apprendi error. Santana-Madera v. U.S., 260 F.3d 133 (2d Cir. 2001).
2nd Circuit rules Apprendi did not require relevant conduct to be determined beyond reasonable doubt. (120) Defendant operated a tax-return business that numerous fraudulent income tax returns for its customers. The IRS calculated the tax loss at about $7.5 million, which included $7.2 million determined by an IRS civil audit to be the tax loss for 2866 returns not involved in the counts of conviction. Defendant argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the court could not include the tax loss resulting from the civil audit unless it found such loss existed beyond a reasonable doubt. However, Apprendi is inapplicable to guideline calculations that do not result in a sentence on a single count above the statutory maximum for that count. U.S. v. Garcia, 240 F.3d 180 (2d Cir. 2001). Also, the preponderance of the evidence standard applies to determinations of relevant conduct for purposes of determining the “total punishment,” USSG § 5G1.2(b), which may exceed the statutory maximum on a single count. See U.S. v. White, 240 F.3d 127 (2d Cir. 2000). Finally, Apprendi is inapplicable to a sentencing judge’s decision when required by the Guidelines (because the “total punishment” exceeds the highest statutory maximum on any count), to run sentences consecutively. Following this precedent, the Second Circuit upheld the use of the preponderance of the evidence standard to determine defendant’s relevant conduct. It was proper to include as relevant conduct the tax loss found in the civil audit. U.S. v. McLeod, 251 F.3d 78 (2d Cir. 2001).
2nd Circuit finds Apprendi violated where relationship between beating and death not submitted to jury. (120) Defendant, a prison guard, was convicted of being an accessory after the fact for helping other guards cover up their fatal beating of a prisoner. Defendant’s maximum sentence under the accessory statute depended on the maximum available for his principals. If they faced a maximum of life, his maximum as an accessory was 15 years; otherwise, his maximum was one-half of the maximum they faced. See 18 U.S.C. § 3. The statutes under which the principals were convicted, 18 U.S.C. § 241 and 242, carry maximum sentences of ten years and one year, respectively. However, the maximums are increased up to life imprisonment if the violation caused the death of the victim. Because the causal relationship between the beating and the prisoner’s death was not submitted to the jury, defendant argued that his sentence could not exceed 5 1/2 years (one half of eleven years). See Apprendi v. New Jersey, 530 U.S. 466 (2000). The Second Circuit agreed. Because defendant’s 70-month sentence exceeded by four months the maximum 5 1/2 year sentence that could be imposed without a jury determination of the cause of the prisoner’s death, his sentence must be reduced by at least four months. U.S. v. Velazquez, 246 F.3d 204 (2d Cir. 2001).
2nd Circuit holds that top of guideline range is not statutory maximum for Apprendi purposes. (120) Defendant argued that the district court violated Apprendi v. New Jersey, 530 U.S. 466 (2000) by increasing his prison term based on the quantity of drugs he allegedly shipped and his alleged possession of a handgun. He argued that the enhancements increased his sentence beyond the otherwise applicable maximum under the guidelines. The Second Circuit found no Apprendi error. The lowest statutory maximum for defendant’s conviction was 20 years imprisonment, precisely the term he received post-enhancement. The panel rejected defendant’s claim that the “maximum” sentence otherwise applicable would be the top end of the guidelines range, absent the enhancements. The hypothetical maximum urged by defendant was not the statutory maximum. U.S. v. Breen, 243 F.3d 591 (2d Cir. 2001).
2nd Circuit holds that use of § 5G1.2(d) to impose consecutive sentences does not violate Apprendi. (120) Defendant argued that the district court’s use of § 5G1.2(d) to run his sentences consecutively rather than concurrently “effectively increased the penalty to which [defendant] was subject to a life sentence, based solely on facts determined by a judge by a mere preponderance of the evidence.” The Second Circuit found no error. First, in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court stated that the issue of consecutive sentences was irrelevant to its determination whether the sentencing court had impermissibly exceeded the statutory maximum for the particular count in question. Second, there is no constitutionally cognizable right to concurrent, rather than consecutive, sentences. The presumption is that when Congress creates distinct offenses, it intends to permit cumulative sentences. U.S. v. White, 240 F.3d 127 (2d Cir. 2001).
2nd Circuit says Apprendi does not require higher standard of proof for relevant conduct. (120) Defendant argued that the guideline provisions that allow courts to base sentences on relevant conduct violate Apprendi v. New Jersey, 530 U.S. 466 (2000) because that they allow sentencing factors to become “a tail which wags the dog of the substantive offense.” He contended that almost all of the cocaine base considered as relevant conduct was attributable to conduct occurring before the charged conspiracy, and that this violated Apprendi because the court used facts not before the jury to impose a sentence far higher than would have been warranted if only the amounts involved in the charged offenses had been considered. He further contended that even if Apprendi does not require that these facts be tried to a jury, it mandates that the court determine them by a higher standard of proof than a preponderance of the evidence. The Second Circuit refused to read Apprendi so broadly. Defendant’s interpretation of Apprendi would eviscerate the guidelines, despite the court’s explicit statement that the “Guidelines are, of course, not before the Court. We therefore express no view on the subject beyond what this Court has already held [in previous cases.]” There was no error in the court’s use of relevant conduct for sentencing purposes. U.S. v. White, 240 F.3d 127 (2d Cir. 2001).
2nd Circuit finds no Apprendi violation where defendants stipulated to drug quantity. (120) The Second Circuit found it unnecessary to determine whether Apprendi v. New Jersey, 530 U.S. 466 (2000) requires drug quantity to be found by a jury in order to sentence a defendant under any provision other than § 841(b)(1). At trial, the parties entered stipulations regarding the type and quantity of drugs involved in the three charged transactions. One transaction involved well over the five-gram minimum required for sentencing under § 841(b)(1)(B). Because defendant entered into this stipulation, and did not object to the failure of the court to include drug quantity as an element of the offense in its charge to the jury, any error was harmless. U.S. v. White, 240 F.3d 127 (2d Cir. 2001).
2nd Circuit says Apprendi not applicable to guideline factors that do not increase sentence beyond statutory maximum. (120) Defendant’s argued that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) required the jury to determine the extent to which the loss involved in his fraud case exceeded $100. This issue was relevant only to his guideline range and did not increase his sentence above the statutory maximum. The Second Circuit joined the other nine circuits that have ruled that a guideline factor, unrelated to a sentence above a statutory maximum, or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury. Although one member of the Apprendi majority intimated in a footnote that Apprendi’s reasoning might extend to fact-finding under the Sentencing Guidelines, this footnote was an insufficient basis to extend Apprendi to a straight-forward guidelines case. See Apprendi, 120 S.Ct. at 2380 n.11 (Thomas, J., concurring). U.S. v. Garcia, 240 F.3d 180 (2d Cir. 2001).
2nd Circuit finds any Apprendi error harmless in light of drug quantity stipulation. (120) The judge, at sentencing, determined the quantity of drugs involved in defendant’s crime by a preponderance of the evidence. Defendant’s 120-month sentence fell below the statutory maximum applicable regardless of the quantity of drugs involved, and thus did not appear to implicate Apprendi v. New Jersey, 530, U.S. 466, 120 S.Ct. 2348 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). However, defendant argued that the reasoning underlying Apprendi still required a jury finding because the court’s drug quantity finding triggered a mandatory minimum sentence of ten years. The Second Circuit found it unnecessary to resolve this issue because at trial, defendant stipulated to the quantity of drugs involved in his crime. Thus, even if the court erred, the error was harmless. Under the stipulation, the jury could not have found differently. Because defendant’s stipulated that his crime involved over 2.6 kilograms of heroin, under 21 U.S.C. § 841(b)(1)(A), he would have been subject to a mandatory minimum sentence of 10 years, in any event. U.S. v. Champion, 234 F.3d 106 (2d Cir. 2000).
2nd Circuit upholds condition of supervised release requiring payment of local fine. (120) Based on defendant’s faulty removal of asbestos from a building, the City of New York ordered him to pay a fine of $22,000. Defendant later pled guilty in federal court to illegally removing asbestos. The district court ordered, as a condition of supervised release, that defendant pay the city fine, at the principal rate of $611.11 per month over three years. The Second Circuit held that principles of federalism did not bar the federal court from requiring payment of a state or local fine in accordance with local law. Such a condition does not interfere with the municipal enforcement scheme per se; it merely specifies the negative federal consequences that would flow from a decision not to comply with the city’s scheme. However, whether a federal court may require payment of a local fine at a rate not imposed by the city is an unsettled question. The Second Circuit affirmed the condition imposed here for two reasons. First, the district court’s decision not to impose a federal fine was motivated by the fact that the city fine had already been imposed. Thus, it was within the court’s discretion to ensure that defendant actually paid the city fine. Second, in the event the city someday requires a rate of payment different from that imposed here, defendant may seek modification of the condition pursuant to 18 U.S.C. § 3853(e). U.S. v. A-Abras Inc., 185 F.3d 26 (2d Cir. 1999).
2nd Circuit upholds court’s authority to severely limit defendant’s contact with outside world. (120) Defendant was the leader of a gang of prison inmates and former inmates who engaged in violence, armed robbery, drug trafficking and murder. He directed the gangs’ activities from his jail cell by corresponding with, and receiving visits from various members of the gang. He was convicted of racketeering and murder. In sentencing him to life imprisonment, the district court imposed “special conditions of confinement” that included no contact with other prisoners or any member of the gang, no correspondence to or visits from anyone except his attorney and close family members approved by the court, and no telephone contact with anyone other than his attorney. The Second Circuit held that the sentencing court had the authority to order these special conditions of confinement under 18 U.S.C. § 3582(d). The restrictions did not violate defendant’s constitutional rights because they were reasonably related to the government’s legitimate interest in stopping defendant’s criminal activity. The severity was necessary to ensure the safety of defendant’s potential targets. There were no other readily available alternative means of protecting people from defendant. U.S. v. Felipe, 148 F.3d 101 (2d Cir. 1998).
2nd Circuit says upward departure on remand not the result of vindictiveness. (120) Defendant was involved in a kidnapping conspiracy to recover unpaid drug debts. He was originally convicted of a drug conspiracy, impeding federal agents, and using a firearm during a drug trafficking crime. The Second Circuit reversed all but Count 2, impeding federal agents. At resentencing, the district court departed upward to the statutory maximum of 120 months based on defendant’s involvement in the armed kidnapping. Defendant argued that the departure was vindictive. The Second Circuit affirmed, because the 120-month sentence was the same as the original sentence. At the original sentencing, § 5G1.2(b) required the statutory maximum 120 months for Count 2 because that count had been grouped with an offense carrying a 235 month sentence. The resentencing was based on a different set of circumstances, and the district court was free to consider grounds for departure not considered at the first sentencing proceeding. The evidence showed that defendant knowingly participated in the kidnapping, even though he may not have known the kidnapping was drug-related,. On this basis alone the departure was justified. U.S. v. Atehortva, 69 F.3d 679 (2d Cir. 1995).
3rd Circuit says Alleyne did not apply to prior ACCA convictions. (120) Defendant argued that the dis¬trict court violated Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013), when it determined that he was an armed career criminal under 18 U.S.C. §924(e). His predicate criminal convictions were not set forth in his indictment and the question of whether he had been convicted of the offenses was not submitted to the jury. The Third Circuit held that Alleyne’s rule did not apply to the recidivist enhancement of §924(e). In Almendarez–Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that prior convictions that increase a statutory maximum were not elements of an offense, and could be proved by a prepon¬derance-of-the-evidence standard. Later, in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Alleyne extended the Apprendi rule to facts that increase a mandatory minimum sentence. Alleyne did not extend the rule to proof of prior convictions, specifically articulating that the issue was not before it. U.S. v. Burnett, __ F.3d __ (3d Cir. Dec. 2, 2014) No. 14-1288.
3rd Circuit says maximum sentence for § 924(c) gun conviction is life imprisonment. (120) Because defendant was a career offender under § 4B1.1, his Guidelines range of 360 months to life was based on his § 924(c) conviction (use of a firearm during or in relation to a crime of violence). Defendant argued that because he was sentenced under § 924(c)(1)(A) (ii) (which applies when a gun is brandished in connection with a crime of violence), and because the issue of whether he actually brandished the gun was not presented to the jury, his sentence was improper under Apprendi v. New Jersey, 530 U.S 466 (2000). The Third Circuit upheld the life sentence. Defendant’s suggested range under § 4B1.1 was based on a generic § 924(c) conviction, not a conviction for specifically brandishing a gun. A better argument would be that a § 924(c) conviction does not carry a statutory maximum of life imprisonment, because the relevant portion of § 924(c) does not contain an express statutory maximum. However, the panel agreed with other Circuits holding that the maximum sentence for a § 924(c)(1)(A) conviction is life imprisonment. U.S. v. Shabazz, 564 F.3d 280 (3d Cir. 2009).
3rd Circuit finds Kikumura no longer good law in light of Booker. (120) Although courts have generally upheld the use of the preponderance of the evidence standard under Sentencing Guidelines, in U.S. v. Kikumura, 918 F.3d 1084 (3d Cir. 1990), the Third Circuit held that when the enhancements are so substantial as to constitute “the tail that wags the dog” of the defendant’s sentence, the facts underlying those enhancements must be established by clear and convincing evidence. Here, the Third Circuit held that Kikumura was no longer good law in light of Booker. The application of Kikumura went “hand-in-hand” with the then mandatory force of the guidelines. Under an advisory system, facts relevant to enhancements under the guidelines no longer increase the maximum punishment to which the defendant is exposed, but simply inform the judge’s discretion as to the proper sentence. Accordingly, sentencing judges are free to find facts by a preponderance of the evidence, provided that the sentence actually imposed is within the statutory range, and is reasonable. Thus, although concerns about the “tail wagging the dog” were valid under the mandatory guidelines system, these concerns were put to rest when Booker rendered the guidelines advisory. U.S. v. Fisher, 502 F.3d 293 (3d Cir. 2007).
3rd Circuit allows court to base sentence on court’s own factual findings. (120) Defendant was convicted of being a felon in possession of a firearm. The district court found that he had used or possessed the firearm in connection with a crime of violence, which resulted in an increased offense level under § 4B1.4(b)(3)(A). Defendant argued that the court failed to apply Booker correctly and that it erred in sentencing him based on its finding that he was responsible for the attempted murder and assault on a police officer. The Third Circuit found no Sixth Amendment violation. Booker did not prohibit a court from sentencing a defendant based on facts not admitted by the defendant or proved to a jury beyond a reasonable doubt. Defendant’s argument had previously been rejected by the en banc court in U.S. v. Grier, 475 F.3d 556 (3d Cir. 2006) (en banc). Defendant did not argue that the district court mistakenly treated the guidelines as mandatory, and nothing in the record suggested such an error. U.S. v. Leekins, 493 F.3d 143 (3d Cir. 2007).
3rd Circuit, en banc, holds that preponderance of the evidence standard applies to determining facts relevant to sentencing. (120) In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court held that facts relevant to the advisory Sentencing Guidelines need not be submitted to a jury. Here, the Third Circuit, en banc, held that these facts do not require proof beyond a reasonable doubt. The facts constituting the elements of a crime are those that increase the maximum punishment to which the defendant is exposed. It is only those facts that the rights to a jury trial and proof beyond a reasonable doubt attach. The en banc court upheld the district court’s decision to apply the preponderance standard to all facts relevant to the guidelines. The appellate courts will then review those findings of fact for clear error. It will exercise plenary review over a district court’s interpretation of the guidelines. U.S. v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc).
3rd Circuit holds that parsimony provision does not require court to state that sentence is the minimum necessary for § 3553(a) purposes. (120) Under the so-called parsimony provision of § 3553(a), a court should “impose a sentence sufficient, but not greater than necessary,” to comply with the purposes set forth in § 3553(a)(2). Defendant claimed that his sentence was unreasonable under Booker because the court failed to adequately consider the parsimony provision. The Third Circuit held that district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in § 3553(a)(2).The appellate court reviews sentences for reasonableness and looks to the record to determine whether the court adequately considered the relevant provisions of § 33553(a) and any arguments properly presented by the parties which have legal merit and a factual basis in the record. The record here showed the court expressly mentioned § 3553(a) and the court’s discussion was consistent with the relevant provisions of § 3553(a). U.S. v. Dragon, 471 F.3d 501 (3d Cir. 2006).
3rd Circuit finds no error despite failure to explicitly rule on departure motion where it could infer court’s ruling. (120) Defendant argued that the district court erred by never ruling on his motion for a downward departure based on his extraordinary acceptance of responsibility. In U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Third Circuit outlined a three-step process for district courts to follow after Booker: (1) calculate the defendant’s guideline sentence as they would pre-Booker; (2) state on the record whether they are granting a departure; and (3) consider the relevant § 3553(a) factors in setting the sentence, regardless of whether it varies from the sentence calculated under the guidelines. Here, the record did not reveal a ruling on defendant’s motion for a downward departure based on his extraordinary acceptance of responsibility. The Third Circuit found no error, since pre-Booker law regarding guideline departures allowed it to infer meaning from the court’s actions. The government’s argument to the court conceded the plausibility of the downward departure, and thus, it was likely that the court’s refusal to depart was discretionary. As to the third step, the court adequately considered the § 3553(a) factors. The court did more than simply recite the factors – it addressed both arguments defense counsel raised in support of a variance. U.S. v. Jackson, 467 F.3d 834 (3d Cir. 2006).
3rd Circuit holds that court understood discretion to grant variance based on extraordinary acceptance of responsibility. (120) Defendant argued that the district court failed to recognize its authority to sentence him below the advisory guideline range based on his extraordinary acceptance of responsibility. The Third Circuit ruled that the court understood its discretion to issue a variance on this basis, but merely exercised its discretion not to reduce the sentence. The record revealed that the court well understood the advisory nature of the guidelines and its duty to consider the guidelines and other factors pursuant to the sentencing goals outlined in § 3553(a). The court’s statement that defendant’s impressive acceptance of responsibility “isn’t something that I’m going to reduce your sentence for” clearly implied that the court understood that it could reduce a sentence on that basis, but that it chose not to do so based upon its consideration of the § 3553(a) factors. The court reinforced this understanding by stating that it chose “to stay within the guidelines.” Absent an express statement or other evidence to the contrary, the Third Circuit will not find a sentence unlawful merely because a sentencing court has not indicated that the guidelines are advisory. U.S. v. Severino, 454 F.3d 206 (3d Cir. 2006).
3rd Circuit approves variance to nearly 50 percent above advisory range where record reflected “rational and meaningful consideration” of statutory factors. (120) Defendant had a two-decades old history of defrauding the Department of Defense. The district court denied defendant’s request for a downward departure. It found that, in light of the numerous victims and defendant’s persistent failure to rehabilitate, his assignment to criminal history category V did not over represent the “seriousness of his criminal history” or the likelihood that he will commit other crimes.” The Third Circuit ruled that the 84-month sentence was reasonable, even though it was nearly 50 percent above the recommended guideline range of 46-57 months. The district court discussed in great detail the circumstances underlying the offenses of conviction and defendant’s criminal history. It assessed the effect of defendant’s offenses on his family and the victim, his blatant disregard of prior orders of court, his failure to be deterred or rehabilitated despite prior terms of imprisonment and supervised release, and his dismissive attitude toward restitution obligations. There was no doubt that the record reflected “rational and meaningful consideration” of the relevant statutory factors. U.S. v. Schweitzer, 454 F.3d 197 (3d Cir. 2006).
3rd Circuit approves upward variance based on criminal history although court did not follow departure methodology. (120) Over a twenty-year period, defendant engaged in identity theft, using the social security number and date of birth of another man with the same name, and causing losses exceeding $166,000. Although defendant’s guideline range was 30-37 months, the district court sentenced him to 72 months. He argued that the court erred by not following the methodology established prior to Booker for imposing a sentence above the guideline range. When departing upward based on an underrepresentation of criminal history, district court are required to apply U.S.S.G. § 4A1.3 and consider each higher criminal history category in sequence. See U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). If the court were under the pre-Booker mandatory guideline scheme, the failure of the district court to have expressly followed that approach would have required remand because the appellate court would have assumed prejudice. Post-Booker, the Third Circuit ruled that it would not presume prejudice, but would review the sentence for plain error. The court here provided an adequate explanation for the sentence on the record. It gave extensive attention to the circumstances of defendant’s life and offense and the harm done to the victim. Defendant was a career criminal who was not deterred by prosecution in state or federal court. A lengthy prison sentence was clearly warranted to prevent and deter defendant from re-offending. Because the district court “did in fact touch all the bases required,” the panel affirmed the sentence imposed. Nonetheless, it emphasized that “the sentencing courts in this Circuit should continue to follow the requirement to ‘consider’ the guidelines by calculating a guidelines sentence as they would have before Booker, including formally ruling on the motions of both parties and stating on the record whether they are granting a departure and how that departure affects the guidelines calculation, and taking into account this Circuit’s pre-Booker caselaw, which continues to have advisory force.” U.S. v. King, 454 F.3d 187 (3d Cir. 2006).
3rd Circuit holds that Booker did not affect application of safety valve. (120) Defendant did not qualify for safety valve protection because he had more than one criminal history point. See 18 U.S.C. § 3553(f). Defendant argued that the district court should have treated § 3553(f) as advisory because failure to do so violated the Sixth Amendment under U.S. v. Booker, 543 F.3d 220 (2005). The Third Circuit held that Booker did not affect the application of the safety valve provision. Booker is inapplicable to situations in which the judge finds only the fact of the prior conviction. Here, the district court found only that defendant had been sentenced under New Jersey law. This is permitted by Booker. Interpreting § 3553(f) as advisory would effectively excise that section from the statute. In Booker, the Supreme Court considered the constitutionality of the remaining subsection of § 3553, including § 3553(f), and declined to excise any except for § 3553(b)(1). Excising one of the remaining subsections would be inconsistent with Booker. U.S. v. McKoy, 452 F.3d 234 (3d Cir. 2006).
3rd Circuit holds that Feeney Amendment does not violate separation of powers. (120) The U.S. Sentencing Commission is an independent commission in the judicial branch composed of seven voting members selected by the President with the advice and consent of the Senate. Prior to 2003, at least three members of the Commission were to be judges selected from a list submitted to the President by the Judicial Conference of the United States. The Feeney Amendment modified this provision to state that “no more than three” members may be judges, thus allowing the President to appoint only members of the Executive Branch to the Commission. The Third Circuit held that the Feeney Amendment was not unconstitutional on separation of powers grounds. Even if this argument was persuasive while the guidelines were still mandatory, it was misplaced under the now-advisory system. Regardless of the composition of the Commission, the guidelines it promulgates do not control sentencing. U.S. v. Coleman, 451 F.3d 154 (3d Cir. 2006).
3rd Circuit upholds use of prior convictions to increase statutory minimum penalty. (120) Defendant was convicted of being a felon in possession of a firearm and possession of controlled substances. Because his prior convictions for drug offenses and a violent crime increased the statutory minimum penalty for his firearm offenses pursuant to 18 U.S.C. § 924(e), defendant argued that those offenses should have been charged in the indictment and proved to the jury beyond a reasonable doubt. The Third Circuit found no error. First, the government did charge defendant’s prior offenses in the indictment. Second, under Almendarez-Torres v. U.S., 523 U.S. 224 (1998), prior convictions that increase the statutory maximum for an offense are not elements of the offense and thus may be determined by the district court by a preponderance of the evidence. This holding was preserved in Apprendi v. New Jersey, 530 U.S. 466 (2000), and survived Booker and its antecedents. U.S. v. Coleman, 451 F.3d 154 (3d Cir. 2006).
3rd Circuit holds that court is not obligated to provide advance notice of three-month upward variance. (120) Defendant was convicted of fraud charges stemming from his sale of illegally copied software. His advisory guideline range was 46-57 months, but the district court, after considering this advisory range, the grounds raised by the parties, and the factors set forth in 18 U.S.C. § 3553(a), sentenced defendant to 60 months’ imprisonment. The Third Circuit rejected defendant’s claim that he was entitled to advance notice under Rule 32(h) of the court’s intent to vary from the advisory guideline range. Post-Booker, the element of unfair surprise that Rule 32(h) was intended to eliminate is not present. Sentencing is now a discretionary exercise, and includes a review of the factors set forth in § 3553(a). These factors are known prior to sentencing. Because defendants are aware that district courts will consider the broad range of factors set forth in § 3553(a) at sentencing, there are none of the unfair surprise considerations that motivated the enactment of Rule 32(b). Nevertheless, if a court is contemplating a departure, it should continue to give notice as it did before Booker, and courts should be careful to articulate whether a sentence is a departure or a variance from an advisory guideline range. U.S. v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006).
3rd Circuit overrules Kikumura and finds preponderance standard of proof applies to facts relevant to sentencing. (120) Defendant pled guilty to being a felon in possession of a firearm after he was involved in a fight in which shots were fired. The district court found that the fight constituted an aggravated assault under state law, and that the offense had been committed in connection with the firearm possession. This resulted in a four-level enhancement under § 2K2.1(b)(5). The Third Circuit held that the district court properly applied a preponderance of the evidence standard to the facts relevant to the guidelines, including the finding that defendant had committed an aggravated assault. In U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), the Third Circuit held that certain sentencing enhancements that significantly increase the recommended sentence and “can fairly be characterized as ‘a tail which wags the dog of the substantive offense’“ must be proved by clear and convincing evidence. Since the jurisdictional basis of this holding has been disavowed by the Supreme Court and plainly conflicts with Booker, the court overruled this aspect of Kikumura. United States v. Grier, (3d Cir. June 6, 2006)
3rd Circuit holds that sentence below advisory range was reasonable. (120) Defendant smuggled about 10,000 pills of ecstasy into the U.S. She was traveling with two companions, and the total amount of ecstasy smuggled by defendant and her co-conspirators was 35,000 pills. The district court sentenced her to 23 months, which was seven months below her advisory sentencing range. A more culpable co-defendant who was held accountable for more than three times the number of ecstasy tablets as defendant received only a 30-month sentence. The Eighth Circuit held that the 23-month sentence was reasonable. The panel lacked jurisdiction to review her claim that the district court should have granted a downward departure based on aberrant behavior. The court properly considered defendant’s relevant conduct—Booker did not alter the consideration of relevant conduct. Finally, although defendant argued that the court should not have permitted a sentencing disparity between co-defendants, this was a post-Booker sentencing, the court was aware of its new responsibility under 18 U.S.C. §3553(a), and the sentence was reasonable. U.S. v. Giaquinto, 441 F.3d 195 (3d Cir. 2006).
3rd Circuit, en banc, says court plainly erred in treating guidelines as mandatory. (120) After the Third Circuit remanded in light of U.S. v. Booker, 543 U.S. 220 (2005), the government petitioned for rehearing en banc. In denying the petition, the Third Circuit ruled that the district court plainly erred in treating the Sentencing Guidelines as mandatory in sentencing defendant. The court noted that while plain error jurisprudence generally places the burden on a defendant to demonstrate specific prejudice flowing from an error, “in this context where mandatory sentencing was governed by an erroneous scheme, prejudice can be presumed.” Thus, “defendants sentenced under the previously mandatory regime whose sentences are being challenged on direct appeal may be able to demonstrate plain error and prejudice. We will remand such cases for resentencing.” U.S. v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc).
3rd Circuit rejects claim that prior convictions need to be determined by jury. (120) Defendant received enhanced sentences under 21 U.S.C. § 843(b) and § 841(b)(1)(C) based on the district court’s finding that defendant had a prior felony drug conviction. The Third Circuit rejected defendant’s claim that under U.S. v. Booker, 543 U.S. 220 (2005), the fact of defendant’s prior convictions should have been submitted to a jury. This argument was rejected by the Supreme Court in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), and Booker and Blakely v. Washington, 542 U.S. 296 (2004) did not overrule it. While there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries, the holding in Almendarez-Torres remains binding law. U.S. v. Ordaz, 398 F.3d 236 (3d Cir. 2005).
3rd Circuit remands without detailed explanation for resentencing under Booker. (120) Defendants challenged their sentences under U.S. v. Booker, 543 U.S. 220 (2005). The Third Circuit remanded, noting only that the remand was “in light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance.” U.S. v. Davis, 397 F.3d 173 (3d Cir. 2005).
3rd Circuit says indictment contained sufficient drug quantity information. (120) Defendant argued his indictment did not specifically allege the amount of methamphetamine involved in the conspiracy, thereby denying him due process. The Third Circuit found no due process violation. The indictment stated clearly the crime charged against him. Moreover, the indictment’s allegation that the conspiracy involved “more than 500 grams of methamphetamine” put defendant on notice that, if convicted, he would receive a sentence of at least ten years under § 841(b)(1)(A)(viii). Finally, this sentence did not offend Apprendi. Defendant’s sentence, the statutory minimum, logically could not exceed the statutory maximum. U.S. v. Gori, 324 F.3d 234 (3d Cir. 2003).
3rd Circuit holds that consecutive sentences did not violate Apprendi. (120) The district court imposed consecutive sentences on defendants’ convictions for possession of a precursor and attempt to manufacture a controlled substance. They argued that the imposition of consecutive sentences, which resulted in an aggregate sentence that exceeded the statutory maximum for each individual count, violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Third Circuit ruled that the district court did not violate Apprendi by sentencing defendants to consecutive sentences pursuant to U.S.S.G. § 5G1.2(d). Apprendi was not implicated by the consecutive sentences because the individual sentences did not exceed the statutory maximum authorized by the jury. U.S. v. Chorin, 322 F.3d 274 (3d Cir. 2003).
3rd Circuit rules application of trafficking cross-reference did not implicate Apprendi. (120) Defendant was convicted of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Guideline § 2G2.4, the guideline applicable to possession of child porn, contains a cross-reference to § 2G2.2, the guideline applicable to trafficking in child pornography. The district court conceded that the facts supported the use of the cross-reference, but it refused to do so in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Third Circuit found Apprendi inapplicable to the use of the cross-reference because the resulting sentence would fall below the statutory maximum for the offense of conviction. Each of the four counts of conviction carried a maximum sentence of five years. Thus, the maximum sentence defendant could face on all four counts was 240 months. This sum exceeded the 135-168 month range that would have arisen from the use of the cross-reference. The evidence established at trial established that defendant downloaded pornographic images from the Internet, stored it on easily distributable CD-Rs which he intended to barter with other people for programs or services. The conditions specified in the U.S.S.G. § 2G2.4 cross-reference were satisfied; thus, application of the cross-reference was mandatory. U.S. v. Parmelee, 319 F.3d 583 (3d Cir. 2003).
3rd Circuit holds that sentence in violation of Apprendi was not plain error. (120) Defendant contended that, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), his sentence was unconstitutional because the issue of drug quantity, which resulted in a sentence beyond the statutory maximum authorized by the jury’s verdict, had not been submitted to the jury and proven beyond a reasonable doubt. Because the evidence supported a conviction under 21 U.S.C. § 841(b)(1)(B)(iii), which provides for a five to 40 year sentence for distribution of at least five grams of cocaine, the Third Circuit held that defendant’s 22-year sentence, although in violation of Apprendi, did not constitute plain error. The evidence at trial established indisputably, and beyond a reasonable doubt, that defendant distributed in excess of five grams of cocaine base. U.S. v. Campbell, 295 F.3d 398 (3d Cir. 2002).
3rd Circuit holds that § 3583 does not limit supervised release terms under § 841. (120) Defendant argued that his ten-year supervised release term violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The statutory provision governing offenses involving an unspecified quantity of cocaine, 21 U.S.C. § 841(b)(1)(C), provides for up to 30 years’ imprisonment and at least six years of supervised release. Defendant’s supervised release term thus did not exceed the statutory maximum in § 841(b)(1)(C). However, defendant argued that the ten-year term exceeded the maximum contained in 18 U.S.C. § 3583, which limits the maximum term of supervised release from one to five years for varying classes of felonies, “[e]xcept as otherwise provided.” The Third Circuit held that § 3583 does not impose a limit on the terms of supervised release available under § 841. Although this argument has been accepted by the Fifth Circuit, see U.S. v. Kelly, 974 F.2d 22 (5th Cir. 1992), several other circuits court have rejected this view. See, e.g. U.S. v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc); U.S. v. Combs, 267 F.3d 1167 (10th Cir. 2001). The plain meaning of § 3583 is that it always yields to other statutes, such as § 841, that specifically provide terms of supervised release. Any other reading fails to give full effect to the language “except as otherwise provided.” U.S. v. Sanchez-Gonzalez, 294 F.3d 563 (3d Cir. 2002).
3rd Circuit holds Apprendi claim was outside scope of resentencing based on guideline amendment. (120) Defendant moved under 18 U.S.C. § 3583(c)(2) for a sentence reduction based on Amendment 505 to the guidelines, which placed a cap of 38 on offenses levels in the Drug Quantity Table. The district court agreed that defendant was entitled to a retroactive application of Amendment 505. At the new sentencing hearing, defendant asked that, aside from any benefit he might receive under the amendment, he also be resentenced in accordance with Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court held that Apprendi did not apply here because the motion before the court was a simply a motion under § 3582(c)(2) for a sentence reduction based on a guideline amendment. The Third Circuit held that when a defendant is resentenced under § 3582(c)(2), only the retroactive amendment is to be considered, and the applicability of that retroactive amendment must be determined in light of the circumstances that existed at the time the sentence was originally imposed. Defendant’s Apprendi argument was independent of and unrelated to any change in the guidelines, and was, therefore, outside the scope of a sentence modification under § 3582. U.S. v. McBride, 283 F.3d 612 (3d Cir. 2002).
3rd Circuit remands solely for jury to determine drug type and quantity. (120) Although defendant pled guilty to possessing with intent to distribute a controlled substance under 21 U.S.C. § 841(a)(1), he never admitted possessing cocaine and it appeared highly possible that the only controlled substance he possessed was marijuana. Defendant argued that both the identity and quantity of drugs were elements of the crime that he was entitled to have determined beyond a reasonable doubt. In U.S. v. Barbosa, 271 F.3d 438 (3d Cir. 2001), the court held that the statutory maximum penalty that can be imposed when drug identity is not known or found by the jury is one year, the lowest statutory maximum under the “catch-all” provisions of § 841(b). The Third Circuit held that defendant’s 60-month sentence violated Apprendi because the sentencing court, rather than the jury, determined the identity and quantity of the controlled substance by a preponderance of the evidence. Although the sentence imposed did not exceed the 60-month maximum for possession with intent to distribute marijuana, the error was not harmless, since, under Barbosa, the court could not assume the identity of the drug merely because the evidence presented at sentencing was limited to marijuana or cocaine base. The court remanded the case to the district court solely for a jury determination as to the identity and quantity of the drug possessed by defendant. U.S. v. Henry, 282 F.3d 242 (3d Cir. 2002).
3rd Circuit holds that Apprendi does not apply to restitution under the VWPA. (120) The district court ordered defendant to pay $100,000 in restitution ($300,000 restitution order less a $200,000 credit) pursuant to the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663. Defendant argued that the restitution order violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Third Circuit agreed that restitution ordered under the VWPA constitutes “the penalty for a crime” within the meaning of Apprendi. However, the appropriate place to look for the “statutory maximum,” as used in Apprendi, is the restitution statute itself. Section 3663 does not specify a maximum amount of restitution that a court may order. The statute provides guidelines that a sentencing judge may use to determine the amount of restitution, but does not prescribe a maximum amount. The Apprendi rules therefore does not apply to restitution made pursuant to the VWPA, because Apprendi applies only to criminal penalties that increase a defendant’s sentence “beyond the prescribed statutory maximum.” U.S. v. Syme, 276 F.3d 131 (3d Cir. 2002).
3rd Circuit holds Apprendi does not require obstruction increase to be submitted to jury. (120) The Third Circuit rejected defendant’s argument that he was entitled to have the obstruction of justice issue submitted to a jury. He was not convicted of obstruction, but simply had his sentence increased under guideline § 3C1.1. The Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) is not implicated when the actual sentence imposed does not exceed the statutory maximum. U.S. v. Williams, 235 F.3d 858, 863 (3d Cir. 2000). In addition, Williams stated that Apprendi did not purport to limit the factors that a sentencing judge could consider in imposing a sentence below the statutory maximum. See also U.S. v. Pressler, 256 F.3d 144, 159 (3d Cir. 2001). Here, the sentence fell well below the statutory limit. U.S. v. DeSumma, 272 F.3d 176 (3d Cir. 2001).
3rd Circuit says Apprendi applies to type of drug but government still need not prove specific intent. (120) Defendant argued that the issue of which substance he intended to transport should have been submitted to the jury for a factual determination beyond a reasonable doubt. Here, the jury only found that defendant trafficked in a controlled substance, without any finding as to the particular substance or amount at issue. Defendant did not challenge drug quantity on appeal, and therefore the court could accept the amount presented at trial. However, Congress did not enact a general provision for situations in which drug quantity is known but drug identity is not. Thus, under the facts found by the jury, the court could not unequivocally determine which of the “catch-all” provisions to invoke against defendant. The Third Circuit held that, under the circumstances of this case, the failure to submit drug identity for a jury determination violated Apprendi, and the error was plain. This holding is contrary to previous cases holding that drug identity is a sentencing factor to be determined by the court. See, e.g. U.S. v. Lewis, 113 F.3d 487 (3d Cir. 1997). However, the court did not overrule these cases completely because, even after Apprendi, drug identity will not always be an element of a § 841(a) offense – drug identity must be treated as an element only when it results in a sentence beyond the relevant statutory maximum. However, this does not mean that the government is now required to prove that defendant had the specific intent to traffic in a particular type of drug. The government’s mens rea burden has not changed with the advent of Apprendi. U.S. v. Barbosa, 271 F.3d 438 (3d Cir. 2001).
3rd Circuit says defendant responsible for type of drug he imported, despite mistake as to drug identity. (120) Defendant was arrested for importing 882 pellets of heroin, which he had swallowed while in Aruba and expelled in a hotel in Philadelphia. The DEA later determined that the pellets contained cocaine base, not heroin. Defendant argued that it was improper to sentence him based upon cocaine base, when he believed that he was carrying heroin. Federal appellate courts have uniformly ruled that a defendant should be held accountable for the substance he actually imported, notwithstanding his reasonable mistake as to drug identity. See, e.g., U.S. v. Strange, 102 F.3d 356 (8th Cir. 1996); U.S. v. Salazar, 5 F.3d 445 (9th Cir. 1993). Drug dealers assume the risk of what kinds and amounts of controlled substances they carry. The Third Circuit agreed with these cases, finding the government’s participation here insufficient to distinguish this case. Defendant was not concerned in any way as to how the drugs were presented or even as to the amount of identity of the drug he would be ingesting. He was responsible for the full consequences of his illegal activity. U.S. v. Barbosa, 271 F.3d 438 (3d Cir. 2001).
3rd Circuit holds that sentence that exceeded statutory maximum violated Apprendi but error was not plain. (120) Defendant received a 24-year sentence based on the district court’s finding that his offense involved 992 grams of powder cocaine and 859 grams of crack. Drug quantity was neither submitted to the jury nor reflected in its verdict. The Third Circuit, en banc, held that defendant’s sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because it exceeded the 20-year maximum sentence in § 841(b)(1)(C) for an offense involving an undetermined quantity of cocaine. Because defendant did not challenge the evidence of drug quantity or object to the court’s failure to submit the issue to the jury, the plain error standard governed his request for relief. The error was plain, but defendant could not show that his substantial rights were affected. An Apprendi error is not a structural defect. The court was “confident” that defendant’s sentence would have been the same had the jury made a drug quantity finding. Moreover, even if the Apprendi violation affected his substantial rights, defendant could not establish that it seriously affected the fairness, integrity, or public reputation of judicial proceedings. The government presented overwhelming evidence that defendant conspired with others to possess and distribute a quantity of drugs sufficient to justify his sentence. Judge Becker concurred, arguing that prior interpretations of § 841 should be abandoned in favor of holding that drug type and quantity are always elements of a § 841 offense. U.S. v. Vazquez, 271 F.3d 93 (3d Cir. 2001) (en banc).
3rd Circuit rules sentence comported with Apprendi given jury’s finding of statutory enhancement factor. (120) Defendant argued that his 360-month sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The jury convicted defendant of conspiracy to distribute an unspecified amount of heroin, specifically finding that he was over 18 years old and that he had conspired to distribute heroin to persons under the age of 21. Under 21 U.S.C. § 846, those who conspire to violate federal drug laws are subject to the same penalties as those who commit the underlying offense. Absent a quantity finding, distribution of heroin generally carries a maximum sentence of 20 years. See § 841(b) (1)(C). However, 21 U.S.C. § 859(a) doubles all applicable penalties for persons over the age of 18 who distribute drugs to persons under the age of 21. Based solely on the jury’s verdict, therefore, defendant’s maximum sentence was 40 years – 12 years more than the sentence he received. The Third Circuit affirmed defendant’s sentence. A defendant has no valid Apprendi claim where, as here, his ultimate sentence is less than that authorized by the jury’s verdict. U.S. v. Pressler, 256 F.3d 144 (3d Cir. 2001).
3d Circuit says Apprendi bars sentence for “non-simple assault” and resulting career offender finding. (120) The jury found defendant guilty of assaulting a federal officer under 18 U.S.C. § 111(a), but failed to convict on two counts of assault with a dangerous weapon under 18 U.S.C. § 111(b). At sentencing, defendant argued that his actions amounted to nothing more than “simple assault” which carries a maximum term of one year. Nevertheless, the district court noted that § 111(a) also provides for three years’ imprisonment in “all other cases” of assault, and concluded that defendant’s crime was “non-simple assault.” On appeal, the Third Circuit reversed, holding that § 111(a) describes two separate offenses, and the district court’s finding that defendant was guilty of “non-simple assault” exceeded the “simple assault” found by the jury. This finding violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because it increased the statutory maximum to three years. In addition, by increasing the maximum term of imprisonment beyond one year, the assault qualified as a “crime of violence” for purposes of the career offender guideline § 4B1.1, which increased defendant’s Criminal History Category from V to VI. The sentence was reversed. U.S. v. McCulligan, 256 F.3d 97 (3d Cir. 2001).
3rd Circuit finds no Apprendi error because actual sentence was below original maximum. (120) Defendant’s case raised two issues under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). First, whether Apprendi applies to cases in which the trial judge decide a fact that increases a defendant’s sentence under the guidelines, but the sentence imposed does not exceed the statutory maximum. Second, whether Apprendi applies to cases in which judicial fact finding increases the possible sentence to be received above the statutory maximum, but the actual sentence is below the statutory maximum. The Third Circuit answered both question negatively. Apprendi did not apply to the increase in defendant’s sentence under the Sentencing Guidelines. The district court’s drug quantity finding increased defendant’s sentence under the guidelines, but his sentence did not exceed the 20-year statutory maximum. “Because the application of the Sentencing Guidelines in this case does not implicate a fact that would increase the penalty of a crime beyond the statutory maximum, the teachings of [Apprendi] were not relevant here.” U.S. v. Cepero, 224 F.3d 256 (3d Cir. 2000). The panel also ruled that the fact that the district court’s findings increased the possible statutory maximum under 21 U.S.C. § 841(b)(1) did not violate Apprendi because the sentence actually imposed (seven years and one month) was well under the original statutory maximum of 20 years. Also, based on the amount of drugs the court attributed to defendant, it would not be possible under the guidelines for the court to sentence defendant to a sentence exceeding the 20-year maximum. U.S. v. Williams, 235 F.3d 858 (3d Cir. 2000).
4th Circuit says post-sentence Alleyne change in law did not invalidate appeal waiver.(120) Pursuant to a plea agreement that contained a waiver of appeal, de¬fendant pled guilty to various charges, including using a firearm in relation to a crime of violence. At the time of sentencing, facts triggering mandatory minimum senten¬ces did not need to be proved beyond a reasonable doubt. Harris v. U.S., 536 U.S. 545 (2002). Four months after defendant’s sentencing, the Supreme Court overruled Harris in Alleyne v. U.S., 133 S. Ct. 2886 (2013), holding that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury” and found beyond a reasonable doubt. Defendant argued on appeal that the district court violated Alleyne when it imposed a statutory minimum sentence based on a judicial finding that he brandished the firearm. The Fourth Circuit held that defendant’s Alleyne claim fell within the scope of the appeal waiver in his plea agreement. Alleyne’s post-sentencing change in the law did not void defendant’s appeal waiver. The possibility of a favorable change in the law occurring after a plea is one of the normal risks that accompanies a guilty plea. U.S. v. Archie, __ F.3d __ (4th Cir. Nov. 17, 2014) No. 13-4159.
4th Circuit affirms drug quantity despite Apprendi error where evidence was strong. (120) Defendant pled guilty to drug charges, and was sentenced to life imprisonment. While the case was pending on appeal, the appellate court learned of impropriety by one of the investigators, and remanded. On remand, the court declined to hold a resentencing. Defendant appealed, but the conviction and life sentence were upheld. Defendant then filed a 28 U.S.C. § 2255 motion which the district court denied. Defendant appealed, arguing in part that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because the indictment did not allege a specific drug quantity. The Fourth Circuit rejected his claim. Defendant waited until the remand from this court to raise the issue, well after judgment issued. Accordingly, any Apprendi claim would be reviewed for plain error. Apprendi errors under § 841(b) should not be recognized on plain error review when the evidence as to drug quantity was “overwhelming” and “essentially uncontroverted.” U.S. v. Cotton, 535 U.S. 625 (2002). That was the case here. U.S. v. Dyess, 730 F.3d 354 (4th Cir. 2013).
4th Circuit rejects Apprendi challenge to fine based on defendant’s admissions of gain. (120) Defendant was the mastermind of a multi-million scheme to defraud the government by supplying defective and nonconforming spare parts for U.S. military aircraft, vehicles, and weapons systems. He argued for the first time on appeal that his $3 million fine was not based on facts found by the jury. The Fourth Circuit found no Apprendi error, because defendant’s admissions established both that he enjoyed a gross gain in excess of $1.5 million and that his offense produced a loss of at least the same amount, either of which alone would be sufficient to support the $3 million fine. Defendant admitted in a Rule 29 motion that he received “94.7% of the total gold” purchased during his scheme. Defendant proffered bank records indicating that the total value of the gold purchased during the scheme was $2.29 million. Thus, his own admissions established that he received a gain of at least $2.16 million. He also admitted at sentencing that his offense caused a loss of no less than $2.5 million. Because defendant’s admissions enlarged the maximum fine to which he could be sentenced to an amount in excess of the $3 million sum that was actually imposed, there was no Apprendi error. U.S. v. Day, 700 F.3d 713 (4th Cir. 2012).
4th Circuit says restitution order did not implicate Apprendi. (120) Defendant defrauded the government by supplying defective and nonconforming spare parts for U.S. military aircraft, vehicles, and weapons systems. He argued for the first time on appeal that the restitution order in excess of $6 million violated Apprendi, because the jury did not find facts giving rise to that amount. The Fourth Circuit ruled that Apprendi was not implicated by the restitution order because there is no prescribed statutory maximum in the restitution context. The amount of restitution that a court may order is indeterminate and varies based on the amount of damage and injury caused by the offense. See 18 U.S.C. §§ 3663(b), 3663A(b). U.S. v. Day, 700 F.3d 713 (4th Cir. 2012).
4th Circuit says jury’s quantity finding does not limit judge’s ability to find higher quantity. (120) At defendant’s trial on drug-trafficking offenses, the jury returned a special verdict finding that defendant’s offense involved at least 500 grams but less than five kilograms of cocaine. At sentencing, the government sought to present evidence that defendant was involved in the distribution of between 90 and 100 kilograms of cocaine. A finding that defendant distributed 90 to 100 kilograms of cocaine would not have resulted in a higher maximum statutory sentence than the jury’s finding that the offense involved between 500 grams and five kilograms. The district court found that it was not free to increase defendant’s punishment based on its own finding that defendant’s offense involved a greater quantity of drugs than found by the jury. The Fourth Circuit held that the jury’s finding established the maximum statutory sentence that defendant could receive, but did not limit the district court’s decision to find that defendant’s offense involved a greater quantity of drugs and impose a higher sentence within that statutory maximum. U.S. v. Young, 609 F.3d 348 (4th Cir. 2010).
4th Circuit holds that mandatory life sentence under three-strikes law did not violate Apprendi. (120) Defendant pled guilty to bank robbery, and received a mandatory life sentence under the federal three-strikes law, 18 U.S.C. § 3559(c). He argued for the first time on appeal that the mandatory life sentence violated the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000). The statute’s safety valve provides that robbery shall not qualify as a “strike” if the defendant establishes by clear and convincing evidence that he did not threaten to use a gun during the robbery. Defendant argued that the court’s finding that he did not meet this burden increased his sentence beyond the otherwise applicable statutory maximum. The Fourth Circuit found no Apprendi violation. There was no fact-finding that increased defendant’s sentence. Rather, there was only fact-finding to determine whether to reduce defendant’s sentence. Defendant conceded that § 3559(c) was constitutional without a safety valve. U.S. v. Thompson, 554 F.3d 450 (4th Cir. 2009).
4th Circuit holds appeal waiver precluded defendant from raising Booker claim on collateral review. (120) Following defendant’s guilty plea but prior to sentencing, the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004). The court sentenced defendant under the then-mandatory guidelines to 262 months. Despite the broad waiver of appeal contained in his plea agreement, defendant filed an appeal challenging his sentence based on Blakely. While the appeal was pending, the Supreme Court decided Booker. The appellate court dismissed defendant’s appeal, concluding that the waiver included any challenges under Blakely or Booker. Defendant then filed a petition for relief under §2255. The Fourth Circuit upheld the denial of the §2255 petition. Defendant was correct that his conviction was not “final” until the Supreme Court denied certiorari. However, defendant’s challenges under Blakely and Booker were within the scope of his plea agreement’s knowing and voluntary direct appeal waiver. Defendant could not circumvent a proper ruling on his Booker challenge on direct appeal by re-raising the same challenge in a §2255 motion. U.S. v. Linder, 552 F.3d 391 (4th Cir. 2009).
4th Circuit says Booker does not apply to resentencing under amended guideline range. (120) In 2003, defendant pled guilty to crack cocaine charges, and was sentenced to 135 months, the bottom of her then-applicable guideline range. In 2008, defendant moved under 18 U.S.C. §3582(c)(2) to reduce her sentence based on recent amendments which reduced the offense level for crack offenses. The court resentenced defendant to 108 months, the bottom of her amended guideline range. Although §1B1.10(b)(2)(A) bars a court from reducing the defendant’s sentence to a term less than the minimum of the amended guideline range, defendant argued that this restriction was no longer valid in light of Booker. The Fourth Circuit held that the district court lacked authority to reduce defendant’s sentence to a term below the amended guideline range. Booker applies only at the original sentencing hearing or in a resentencing where the original sentence is vacated for error. Booker does not apply to sentences that were final before it was decided, so it does not apply in §3582(c) proceedings where the original sentence became final before Booker was decided. U.S. v. Dunphy, 551 F.3d 247 (4th Cir. 2009).
4th Circuit finds court properly considered statutory sentencing factors. (120) Defendant was convicted of being a felon in possession of a firearm, and received a 120-month sentence. He argued that the district court failed to adequately consider the § 3553(a) factors in imposing his sentence. He had objected to the PSR’s finding that no mitigating factors supported a sentence outside the guidelines range. He requested the court take into consideration his medical condition, the lack of educational opportunities in the prison system, and other facts “apparent from the record.” The Fourth Circuit held that the district court properly considered the statutory sentencing factors. While sentencing counsel failed to offer any argument on those issues at sentencing, it was clear from the record that the district judge understood defendant’s personal characteristics. The PSR presented an exhaustive overview of defendant’s personal history, and the judge accepted the report and made it part of the record. The judge stated that he considered “all of the factors under 18 U.S.C. § 3553(a)” and found “the guideline range sentence of 120 months to be appropriate in this case.” Such a statement demonstrated that the district court considered defendant’s arguments but found his personal characteristics did not warrant a sentence outside the guideline range. The judge’s brief statement was sufficient under the circumstances to show that he considered the § 3553(a) factors in determining the appropriate sentence. U.S. v. Battle, 499 F.3d 315 (4th Cir. 2007).
4th Circuit allows court to rely on facts not found by jury to support “other felony” enhancement. (120) Defendant pled guilty to being a felon in possession of a firearm. He argued that a § 2K2.1(b)(5) increase for using the firearm in connection with another felony was improperly based on facts not found by the jury. After Booker, when applying the guidelines in an advisory manner, the district court makes factual findings using the preponderance of the evidence standard. The Fourth Circuit found that the testimony of one witness was sufficient to support the finding that defendant had previously used the firearm in connection with another felony offense. The witness testified that she purchased crack from defendant once and that she saw her friends purchase crack from him about eight or nine times. She further testified that she saw defendant with a gun every time she or her friends purchased crack from him. Defendant offered only his own testimony to rebut this testimony. The district court was entitled to discredit defendant’s testimony based on his prior misrepresentations to the court during his plea hearing. U.S. v. Battle, 499 F.3d 315 (4th Cir. 2007).
4th Circuit holds that upward departure from mandatory guideline range violated Sixth Amendment. (120) Defendant pled guilty to several fraud offenses and was sentenced under the then-mandatory guidelines. His guideline range was 140-175 months, but the district court found that his criminal history score was inadequate, and departed upward to 180 months. The Fourth Circuit held that the upward departure violated the Sixth Amendment. The top of his mandatory guideline range was 175 months, and then the court departed upward based on additional facts not admitted by defendant: the likelihood that he would return to crime, the character of his criminal history, and the inadequacy of a 175-month sentence. The error was not harmless. But for the error, defendant would have received a shorter sentence. U.S. v. Guyon, 474 F.3d 114 (4th Cir. 2006).
4th Circuit holds that court is not required to apply lowest sentence within advisory guideline range. (120) Defendant argued that the holding in U.S. v. Green, 436 F.3d 449 (4th Cir. 2006), that sentences within a properly calculated guideline range are “presumptively reasonable,” requires a district court to always sentence a defendant to the lowest term within the relevant guideline range. The Fourth Circuit disagreed. Green requires a court to calculate the appropriate guideline range, and then to consider the factors outlined in § 3553(a) to determine which sentence within that range, if any, is sufficient, but not greater than necessary to comply with § 3553(a). The fact that a sentence at the lowest end of the guideline range could be reasonable if the sentencing judge concluded it was sufficient does not mean that the sentencing judge must conclude that it is sufficient. U.S. v. Smith, 472 F.3d 222 (4th Cir. 2006).
4th Circuit holds that statute setting out mandatory sentencing provisions for child and sexual offenses violated Sixth Amendment. (120) Defendant pled guilty to possession of child pornography, in violation of 18 U.S.C. § 2252A (a)(5)(B). The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act) included certain mandatory sentencing provisions applicable to child and sexual offenses, including possession of child pornography. Those mandatory provisions are codified at 18 U.S.C. § 3553(b)(2). The Fourth Circuit held that § 3553(b)(2) violates the rationale of Booker, and the proper remedy is to excise and sever § 3553(b)(2) and replace it with an advisory guideline regime under which sentences are reviewed for reasonableness. U.S. v. Hecht, 470 F.3d 177 (4th Cir. 2006).
4th Circuit holds that Booker error was harmless where court issued alternative identical sentence. (120) The district court’s four-level enhancement for defendant’s use or possession of a firearm in connection with a robbery was unconstitutional under U.S. v. Booker, 125 S.Ct. 738 (2005) because the facts underlying the enhancement were neither admitted by defendant nor proved to a jury beyond a reasonable doubt. Although defendant told the court he had no objections to anything contained or omitted from the PSR, this did not constitute an admission for Sixth Amendment purposes. See U.S. v. Milam, 443 F.3d 382 (4th Cir. 2006). The Fourth Circuit ruled that the error was not prejudicial however in light of the court’s announcement of an alternative identical sentence treating the guidelines as advisory only. Thus, no guesswork was required to conclude that any Booker error did not actually affect the outcome of the proceedings. U.S. v. Revels, 455 F.3d 448 (4th Cir. 2006).
4th Circuit holds that need to avoid disparities between fast-track and non-fast-track defendants not did not justify downward departure. (120) Defendant was convicted of illegally reentering the U.S. after being deported, 8 U.S.C. § 1326(a). The district court imposed a below-guidelines variance sentence, primarily to avoid an “unwarranted sentence disparity” between defendant and defendants that had participated in a fast-track program. See U.S.S.G. § 5K3.1. The Fourth Circuit held that the district court erred in imposing a below-guideline sentence to account for sentences received by defendants participating in fast-track programs. The disparity between a fast-track and a non-fast-track sentence is not “unwarranted” within the meaning of 18 U.S.C. § 3553(a)(6). Congress and the Sentencing Commission have explicitly sanctioned such disparities. U.S. v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006).
4th Circuit upholds its post-Booker authority to review sentence within properly calculated guideline range. (120) Under 18 U.S.C. § 3742, a defendant may appeal a sentence “imposed in violation of law.” The government argued that since defendant’s sentence was within a properly calculated guidelines range, it could not have been “imposed in violation of law.” The Fourth Circuit disagreed. In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court at least implicitly rejected this jurisdictional argument, explaining that the Sentencing Reform Act “continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the guidelines range in the exercise of his discretionary power under § 3553(a).” Every court of appeals to consider this question has held that it has jurisdiction to review sentences within a properly calculated guideline range. Moreover, a sentence within a properly calculated guideline range is not necessarily lawful. Such an interpretation would render the other § 3553(a) factors superfluous. U.S. v. Montes-Pineda, 445 F.3d 375 (4th Cir. 2006).
4th Circuit holds that decision to aggregate drug quantities involved in separate charges was reasonable. (120) Defendant was involved in three separate drug transactions and pled guilty to a three-count indictment. Following § 3D1.2, the district court totaled the cocaine base in all three transactions, resulting in an offense level of 32, and sentenced defendant to 97 months, the bottom of the advisory guideline range. The judge rejected defendant’s request not to apply § 3D1.2’s drug quantity grouping provision, finding that suggestion would “gut … the guidelines.” The Fourth Circuit held that the district court’s decision to aggregate the drug quantities in the three drug charges was not unreasonable. Guideline sentences are presumptively reasonable because of the legislative and administrative process by which they were created. In addition, guidelines sentences are based on individualized fact-finding which takes place in a process that invites defendants to raise objections and requires courts to resolve them. The court here properly considered the § 3553(a) factors, even thought it did not address each factor on the record. The court undertook a detailed inquiry into the various circumstances bearing upon defendant’s sentence, including his character and his criminal history. U.S. v. Johnson, 445 F.3d 339 (4th Cir. 2006).
4th Circuit says facts stated in PSR may not be deemed admissions for Sixth Amendment purposes. (120) Defendant argued that the drug sale to which he admitted should have resulted in an offense level of 12 with a sentencing range of 12-18 months. However, the district court held him accountable for much larger drug quantities and a firearm, as stated in the presentence report, which resulted in an offense level of 28 and a sentencing range of 87 to 108 months. The government argued that defendant’s sentence did not violate the Sixth Amendment because defendant did not object to the proposed findings of drug quantity and firearm in the PSR, and his failure to object constituted an admission of those facts for sentencing purposes. The Fourth Circuit disagreed, holding that a failure to object to the PSR does not constitute an admission of facts for Sixth Amendment purposes. There is a distinction between those factual issues committed by Rule 32 to the court for resolution and those factual issues committed by Booker to a jury. Sentencing facts (other than a prior conviction) that increase the maximum penalty for a crime are considered “elements” of the offense, not sentencing facts, and proof of them must satisfy the requirements of the Sixth Amendment. Such facts must be proven beyond a reasonable doubt. The sentence was vacated and the cases remanded for resentencing. U.S. v. Milam, 443 F.3d 332 (4th Cir. 2006).
4th Circuit holds that probationary sentence for felon in possession of firearm was unreasonable. (120) Defendant pled guilty to being a felon in possession of a firearm. Although he had an advisory guideline range of 57-71 months’ imprisonment, the district court, relying on the § 3553(a) factors, imposed a non-guideline sentence of three years’ probation. The court noted that defendant worked regularly, the offense involved no injury, and a term of imprisonment would likely force defendant’s children into foster care. The Fourth Circuit held that the probationary sentence was unreasonable. Such a dramatic variance from the advisory guideline range must be supported by compelling justifications related to § 3553(a) factors, and “excessive weight” may not be given to any single factor. Here, although the court briefly mentioned two § 3553(a) factors – deterrence and protection of the public, the court never explained how the sentence imposed served these interests. In truth, the court actually relied on only one aspect of § 3553(a) – defendant’s status as sole custodial parent of his two small children. Family ties and responsibilities are a discouraged factor under the guidelines, see U.S.S.G. § 5H1.6, and under the facts of this case, defendant would not have been entitled to a downward departure. The record did not support a variance of this magnitude. U.S. v. Hampton, 441 F.3d 284 (4th Cir. 2006).
4th Circuit holds that defendant preserved claim of statutory Booker error by raising timely Blakely objection at sentencing. (120) Treating the guidelines as mandatory, the court sentenced defendant at the bottom of his 46-57 month sentencing range. The Fourth Circuit ruled that defendant properly preserved his claim of statutory Booker error by raising a timely Blakely objection at sentencing. Therefore, it would review his preserved claim of statutory Booker error for harmless error. Under this standard, defendant was entitled to be resentenced. Although the court offered no indication of whether it might have imposed a different sentence had it considered the § 3553(a) factors under an advisory guidelines regime, because defendant preserved his claim of Booker error, the prejudice burden fell on the government. The sentencing court’s silence had to be interpreted in favor of defendant. U.S. v. Rodriguez, 433 F.3d 411 (4th Cir. 2006).
4th Circuit holds that defendant waived right to raise Booker claim. (120) Defendant argued that his sentence violated the Supreme Court’s decision in Booker. The Fourth Circuit found it unnecessary to apply even plain error analysis since defendant admitted, as part of his plea agreement, the facts giving rise to his sentence. In addition, defendant also expressly waived all rights to appeal the sentence imposed. When the court accepted the guilty plea, the judge engaged in a colloquy with defendant to ensure that he understood the provision of the plea agreement in which defendant waived his right to appeal. U.S. v. Amaya-Portillo, 423 F.3d 427 (4th Cir. 2005).
4th Circuit holds that finding offenses were committed on different occasions did not need to be made by jury. (120) When a defendant has at least three prior convictions for “violent felonies” that were “committed on occasions different from one another,” the Armed Career Criminal Act imposes a minimum sentence of 15 years. 18 U.S.C. § 924(e)(1). Defendant argued that the Blakely/Booker cases prohibited sentencing him under the ACCA unless a jury found (or he admitted) the facts required by the statute. The Fourth Circuit disagreed. The Supreme Court has expressly excluded “the fact of a prior conviction” from those facts that must be found by a jury under the Sixth Amendment. Whether the prior conviction meets the statutory definition of a “violent felony” is a question of law, not fact, and thus does not trigger the Sixth Amendment concerns addressed in Booker. Under U.S. v. Bowden, 975 F.2d 1080 (4th Cir. 1992), burglary under the North Carolina statute in question is a violent felony under the ACCA. In addition, the issue of whether crimes were committed on occasions different from one another is also a question of law. The date necessary to determine the “separateness” of the occasions is inherent in the fact of the prior convictions. No finding of fact by a jury was necessary here. Defendant’s burglaries were committed on distinct days, in separate towns, in different homes, and thus, were committed on separate occasions. U.S. v. Thompson, 421 F.3d 278 (4th Cir. 2005).
4th Circuit defends prior conviction exception in Almendarez-Torres. (120) Defendant was sentenced to 190 months’ under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on the court’s finding that he had been convicted of at least three prior qualifying felonies. The Fourth Circuit held the court’s use of the prior convictions did not violate the Sixth Amendment. See Almendarez-Torres v. U.S., 523 F.3d 224 (1998) (Constitution does not require the government to plead the fact of a prior conviction in the indictment). Almendarez-Torres is still good law, and even if, as defendant contended, it was “only a matter of time” before the Supreme Court overrules Almendarez-Torres, an appellate court is not free to overrule or ignore the precedent. Moreover, the panel cited four reasons why Almendarez-Torres exception has not been overruled: (a) recidivism involves the status of a defendant as a repeat offender based on past convictions, and not the offense being tried before the court; (2) a prior conviction has already been determined in accordance with the safeguards of due process and the Sixth Amendment; (3) the introduction of a prior conviction at trial could unfairly prejudice the defendant; and (4) it has been a longstanding custom for over 200 years to treat recidivism as a sentencing factor and not as an element of the current offense. U.S. v. Cheek, 415 F.3d 349 (4th Cir. 2005).
4th Circuit remands for resentencing in light of Booker. (120) Defendant argued for the first time on appeal that his 78-month sentence violated U.S. v. Booker, 543 U.S. 220 (2005). The Fourth Circuit agreed that the court erred in relying on its own fact-finding to impose a sentence of greater than six months. The error was plain under Booker, and was prejudicial because it exceeded the six-month maximum authorized by the facts found by the jury alone. Finally, to affirm defendant’s sentence despite the error would seriously affect the fairness, integrity, or public reputation of the judicial proceedings. The record did not indicate what sentence the court would have imposed on defendant had its exercised its discretion and treated the guidelines as merely advisory, although it was possible defendant would have received the same sentence on remand. The panel exercised its discretion to notice the error, vacated defendant’s sentence, and remanded for resentencing consistent with Booker. U.S. v. Ebersole, 411 F.3d 517 (4th Cir. 2005).
4th Circuit refuses to presume prejudice from mandatory use of guidelines. (120) The district court plainly erred under U.S. v. Booker, 543 U.S. 220 (2005), by treating the Sentencing Guidelines as mandatory in determining defendant’s sentence. However, the Fourth Circuit refused to presume prejudice from the mandatory use of the guidelines. The general risk of harm is not sufficient to warrant a presumption of prejudice. In any given case after Booker, the district court must calculate, consult, and take into account the exact same guideline range that it would have applied under the pre-Booker mandatory guidelines regime. If a court decides to impose a sentence outside that range, it should explain its reasons for doing so. Thus, even after Booker, “we have no reason to doubt that most sentences will continue to fall within the applicable guideline range.” The error of sentencing a defendant under the pre-Booker mandatory guidelines is not a structural error. Therefore, defendant must demonstrate actual prejudice, i.e. that the error affected his substantial rights. Defendant did not meet that burden. Although he received a sentence at the bottom of the applicable range, the record did not provide any “nonspeculative basis” for finding that the mandatory use of the guidelines led to a higher sentence. U.S. v. White, 405 F.3d 208 (4th Circuit 2005).
4th Circuit holds that use of extraneous documents to make crime of violence finding violated Booker and Shepard. (120) The district court relied on a government memorandum, which attached a copy of the police report and the criminal investigation report, to find that defendant’s prior conviction for breaking and entering was a “crime of violence” under §§ 2K2.1(a)(4) and 4B1.2(a)(2). At issue was whether the “fact of a prior conviction” exception to the Sixth Amendment protection applies to findings of fact regarding the circumstances of a prior conviction, when such findings are used to determine that the conviction is a crime of violence. In Shepard v. U.S., 125 S.Ct. 1254 (2005), a Supreme Court plurality held that the consideration of materials outside the charging documents to rule that a prior offense was a violent felony “raised the concern underlying Jones and Apprendi.” The Fourth Circuit found that the sentencing court’s application of the §§ 2K2.1 and 4B1.2(a) crime of violence enhancement in defendant’s sentencing proceeding was error under Booker and Shepard. Judge Luttig dissented. U.S. v. Washington, 404 F.3d 834 (4th Cir. 2005).
4th Circuit finds sentence exceeding maximum authorized by jury facts was plain error and remands for resentencing under advisory guidelines (120) Defendant’s sentence exceeded the maximum sentence then authorized by the facts found by the jury alone, in violation of U.S. v. Booker, 543 U.S. 220 (2005). However, defendant raised this issue for the first time on appeal. The Fourth Circuit held that the district court plainly erred in imposing a sentence that exceeded the maximum allowed based on the facts found by the jury alone. The error was clear – Booker has abrogated law permitting a sentence greater than the maximum authorized under the guideline based on facts found by the jury. The error affected defendant’s substantial rights, since it raised his sentence from a range of 6 to 12 months to a range of 41 to 51 months, a term of imprisonment nearly four times as long as the maximum sentence authorized by the jury verdict. The panel said that “failure to notice such an error would seriously affect the fairness, integrity, or public reputation of judicial proceedings.” U.S. v. Hughes, 401 F.3d 540 (4th Cir. 2005).
4th Circuit determines guideline issues as guidance for district court imposing sentence on remand. (120) Under the remedial sentencing scheme set forth in U.S. v. Booker, 543 U.S. 220 (2005), a sentencing court must first calculate (after making appropriate findings of fact) the sentencing range prescribed by the Sentencing Guidelines. The district court shall consider that range as well as other relevant factors set forth in the guidelines and in § 3553(a) before imposing the sentence. Here, because defendant’s sentence exceeded the maximum sentence then authorized by the facts found by the jury, the 4th Circuit remanding for resentencing in accordance with U.S. v. Booker, 543 U.S. 220 (2005). Since the district court was required to consider the proper guideline range before imposing a sentence on remand, the panel found it necessary to address defendant’s guideline challenges. However, the panel did not hold that in every case involving a Booker issue, the appellate court must first address alleged calculation errors before vacating and remanding for resentencing in light of Booker. U.S. v. Hughes, 401 F.3d 540 (4th Cir. 2005).
4th Circuit remands because sentence was determined under pre-Booker sentencing regime. (120) The district court, rather than the jury, found that defendant was accountable for 349.9 grams of crack. Pursuant to Blakely v. Washington, 542 U.S. 296 (2004), and U.S. v. Booker, 543 U.S. 220 (2005), defendant argued that his sentence should be set aside because the court made a finding of fact that resulted in a longer sentence than the maximum authorized by the facts found by the jury alone. Following its decision in U.S. v. Hughes, 401 F.3d 540 (4th Cir. 2005), the Fourth Circuit remanded for resentencing. U.S. v. Collins, 401 F.3d 212 (4th Cir. 2005), superseded, U.S. v. Collins, 415 F.3d 304 (4th Cir. 2005).
4th Circuit holds that sentence five months in excess of that authorized by jury verdict constituted plain error. (120) Defendant argued for the first time on appeal that the district court erroneously enhanced his sentence under § 3C1.1 for subornation of his wife’s perjured trial testimony. The Fourth Circuit found that the enhancement met plain error standards, and remanded for resentencing. The enhancement was error – it resulted in a sentence exceeding the maximum authorized by the jury verdict pursuant to the then-mandatory guidelines. The error was plain, since it was plain at the time of appellate consideration. The error was prejudicial, since defendant’s sentence was greater than the maximum authorized by the facts found by the jury alone. Finally, the panel chose to exercise its discretion to notice the error because it “seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceedings.” The constitutional error committed by the district court, sentencing defendant based on facts not found by the jury, added at least five months to defendant’s sentence. There was no way of knowing how the district court would have sentenced defendant had it been operating under the advisory guidelines as established by Booker. U.S. v. Washington, 398 F.3d 306 (4th Cir. 2005).
4th Circuit holds that Apprendi error was harmless in light of overwhelming evidence of drug quantity. (120) The government conceded that district court erred by imposing enhanced sentences in the absence of an allegation of drug quantity and that the error was plain under Rule 52(b). However, the government contended that even assuming defendant’s substantial rights were affected by the error, “the error did not serious affect the fairness, integrity, or public reputation of the judicial proceedings.” The Fourth Circuit agreed, since the record revealed that the charged conspiracy involved quantities of cocaine and cocaine base far in excess of the minimum amounts necessary to sustain sentences pursuant to 21 U.S.C. § 841(b)(1)(A). The results were different for a third defendant who preserved his Apprendi objection. The error entitled this defendant to appellate relief. Defendant’s convictions exposed him to a total of 90 years. The court would have been mandated under U.S.S.G. § 5G1.2(d) to impose consecutive sentences in order to attain prison terms within the prescribed guideline range. While it was likely that consecutive sentences totaling 90 years for a 46-year old defendant would equal or exceed the life sentence improperly imposed on the drug conspiracy count, this was not clear. The court remanded for imposition of a 90-year sentence. U.S. v. Mackins, 315 F.3d 399 (4th Cir. 2003).
4th Circuit says defendants who failed to raise constitutional claim did not preserve Apprendi issue. (120) Three defendants argued on appeal that the district court violated Apprendi v. New Jersey, 530 U.S. 466 (2000) by failing to submit threshold drug quantities to the jury. The Fourth Circuit ruled that two of the defendants did not sufficiently raise their objection below, and thus their sentences would be reviewed for plain error. Although these two defendants objected to the PSR’s drug quantity calculations, they never objected to the failure of the jury to find a specific drug quantity. They did not invoke Jones v. Untied States, 526 U.S. 227 (1999), or any other Apprendi precursor. Rather, they challenged the sufficiency of the evidence and the credibility of the witnesses testifying against them. Such evidentiary objections did not question the constitutionality of the jury’s failure to find a specific drug quantity, and so did not constitute an objection on Apprendi grounds. However, the third defendant contended in his sentencing memo that the court’s imputation of a specific quantity of drugs to him would “impact the offense level to an extent which depends on findings by the Court regarding … the presumption of innocence and burden of proof beyond a reasonable doubt, due to the ‘differential in sentencing ranging from a nominal fine to mandatory life’ under the statute.” While this statement was not artful, it stated a sufficient constitutional Apprendi objection to preserve the issue for appellate review. U.S. v. Mackins, 315 F.3d 399 (4th Cir. 2003).
4th Circuit holds that departure from sentence that violated Apprendi was not reversible given overwhelming drug quantity evidence. (120) The district court found that defendant’s sentencing range was 360 months to life imprisonment, but then departed downward under § 5K1.1 and imposed a 240-month sentence. However, under Apprendi v. New Jersey, 530 U.S. 466 (2000), the maximum sentence defendant could face under was 240 months in prison. The government conceded on appeal that the court plainly erred in using 360 months as the starting point for the departure, and assumed for the sake of argument that the error affected defendant’s substantial rights. Nonetheless, the government contended that the error was not one that would affect “the fairness, integrity, or public reputation of judicial proceedings.” In light of the overwhelming and uncontroverted amount of crack that defendant admitted in connection with his offense, as well as the fact that his sentence did not exceed the maximum allowed for an offense based on drug quantities not alleged in the indictment or proven to a jury, the Fourth Circuit refused to exercise its discretion to correct the error because it did not impugn the fairness, integrity, or public reputation of the judicial proceedings. U.S. v. Shaw, 313 F.3d 219 (4th Cir. 2002).
4th Circuit holds that brandishing of firearm was sentencing factor. (120) Defendant was convicted of a number of firearms charges, including use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c). At sentencing, the district court found that defendant had brandished a firearm in the course of committing the § 924(c) offense, and was thus subject to a mandatory minimum sentence of seven years. Defendant argued that brandishing should be considered an element of a separate offense, and that he was neither indicted nor tried for that offense. The Supreme Court, however, found that Congress did not intend to make brandishing a separate element of a § 924(c) offense, but rather intended it as a sentencing factor to be addressed by the court. See Harris v. U.S., 122 S.Ct. 2406, 2412 (2002). The use of sentencing factors is constitutional, so long as the judge imposes a sentence within a range provided by statute. Because the judicial finding of brandishing did not increase the maximum sentence, the Fourth Circuit found no constitutional violation. U.S. v. Hopkins, 310 F.3d 145 (4th Cir. 2002).
4th Circuit holds that indictment’s description of overt acts gave defendant notice of drug quantity. (120) Defendant argued for the first time on appeal that his indictment failed to charge the elements of an aggravated drug offense, since they omitted allegations of specific drug quantities. The Fourth Circuit agreed that the government’s failure to allege drug quantity was plain error, but found that the error did not affect defendant’s substantial rights. Defendant was entitled, through the indictment, (1) to be notified of the charges against him by a description of each element of the offense, and (2) to be provided an accurate record of the charges against him. Here, although the indictment erroneously failed to allege a specific drug quantity, the indictment’s description of the overt acts taken in furtherance of the conspiracy did specify drug quantity. The description of the overt acts put defendant on notice that over 250 grams of crack were involved, subjecting him to the risk of conviction for an aggravated drug offense. Thus, the indictment still fulfilled the notice purpose of an indictment. U.S. v. Carrington, 301 F.3d 204 (4th Cir. 2002).
4th Circuit declines to correct plain error where drug quantity evidence was overwhelming. (120) Defendant contended for the first time on appeal that under Apprendi v. New Jersey, 530 U.S. 466 (2000), he should not have been sentenced for an aggravated drug crime when the jury did not make a finding as to drug quantity. However, in U.S. v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002), the Supreme Court concluded that the error of not submitting drug quantity to the jury did not seriously affect the “fairness, integrity, or public reputation of judicial proceedings” because the evidence of drug quantity was “overwhelming” and “essentially uncontroverted.” Following Cotton, the Fourth Circuit declined to correct the plain error, concluding that the evidence of drug quantity here was so overwhelming and essentially uncontroverted that the plain error could not have affected defendant’s substantial rights. The government proved two events involving defendant, each of which involved quantities of crack cocaine in excess of 50 grams, the amount necessary to support his sentence. In order to convict defendant of conspiracy, the jury must have found that defendant participated in at least one of these events, and therefore had to find that he was involved personally in acts relating to over 50 grams of crack cocaine. U.S. v. Carrington, 301 F.3d 204 (4th Cir. 2002).
4th Circuit finds concession provided overwhelming and essentially uncontroverted evidence of drug quantity. (120) In U.S. v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002), the Supreme Court held that an Apprendi error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings where the evidence was “overwhelming” and “essentially uncontroverted.” Applying Cotton’s standard here, the Fourth Circuit found that it need not notice the plain error in sentencing several defendants because there was overwhelming and essentially uncontroverted evidence supporting their sentences. For example, the first defendant was a central figure in the drug conspiracy that continued for nearly a decade. He conceded that 56.7 grams could be attributed to him based on Ward’s testimony. This concession alone provided overwhelming and essentially uncontroverted evidence that defendant was accountable for at least 50 grams of cocaine base. A second defendant made numerous trips over a period of a year, each time purchasing one kilogram of crack for the conspiracy. Just one of these repeated purchases of 1000 grams of crack satisfied the 50-gram statutory crack requirement over 20 times over. U.S. v. Carter, 300 F.3d 415 (4th Cir. 2002).
4th Circuit holds that grouping does not preclude stacking sentences to avoid Apprendi problem. (120) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), the maximum sentence available for defendant’s drug conspiracy conviction was 240 months. Consequently, the district court erred in imposing a 360-month term. However, the error would be harmless if the court would have been required to impose consecutive terms of imprisonment in order to achieve the 360-month sentence called for by the guidelines. Defendant’s offenses were grouped and such grouping was required by the guidelines. The Fourth Circuit held that grouping does not preclude the imposition of consecutive sentences under § 5G1.2. Grouping and stacking are separate concepts relevant in different stages of the sentencing process. They are not mutually exclusive. The only language that even suggests a prohibition against stacked sentences for grouped offenses appears in the introduction to the grouping rules, which states that “counts that are grouped together are treated as constituting a single offense for purposes of the guidelines.” U.S.S.G. Ch. 3 pt. D, intro comment. It was clear from this context, however, that this language does not control the choice between concurrent and consecutive sentences. The grouping rules apply only to offense level computations, not to other components of the sentencing process. U.S. v. Chase, 296 F.3d 247 (4th Cir. 2002).
4th Circuit finds no Apprendi violation where defendant pled to count alleging 1,000 kilos of marijuana. (120) Defendant was charged with conspiracy to distribute in excess of 1,000 kilograms of marijuana in violation of 21 U.S.C. § 841(b)(1)(A). He pled guilty to being involved in a conspiracy “as alleged in count 1,” and acknowledged that he was “in fact” guilty of counts 1 and 3. The district court sentenced him to the enhanced sentence for marijuana in excess of 1,000 kilograms. On appeal, the Fourth Circuit held that the plea established the quantity sufficiently to comply with Apprendi v. New Jersey, 530 U.S. 466 (2000). Moreover defendant acknowledged during the plea colloquy that the maximum sentence for count 1 was life, which is the maximum sentence for a drug offense involving at least 1,000 kilograms of marijuana. U.S. v. Scheetz, 293 F.3d 175 (4th Cir. 2002).
4th Circuit reverses plain error under Apprendi. (120) The indictment to which defendant pled guilty, charging him with aiding and abetting the possession with intent to distribute methamphetamine and marijuana, did not specify any threshold quantity of drugs. At sentencing, the district court found him responsible for the equivalent of 456.25 kilograms of marijuana, which subjected him to a statutory range of five to 40 years. See 21 U.S.C. § 841(b)(1)(B). Applying the murder cross-reference in § 2D1.1(d)(1), the district court sentenced defendant to 40 years. In U.S. v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), the Fourth Circuit held that Apprendi mandated that specific threshold drug quantities be treated as elements of aggravated drug trafficking offenses, and therefore, should be charged in the indictment and submitted to the jury. Failure to do so is plain error. Moreover, in U.S. v. Cotton, 261 F.3d 397 (4th Cir. 2001), reversed, in U.S. v. Cotton, 535 U.S. 625 (2002), the court found that such an error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings” and consequently exercised its discretion to notice the error. Following Apprendi, Promise, and Cotton, the Fourth Circuit here exercised its discretion to notice the plain error in defendant’s sentence. The district court erred in sentencing defendant to a term of imprisonment in excess of 20 years. U.S. v. Pauley, 289 F.3d 254 (4th Cir. 2002), modified on rehearing by U.S. v. Pauley, 304 F.3d 335 (4th Cir. 2002).
4th Circuit says defendant did not show prejudice from advice that became incorrect after Apprendi. (120) Defendant pled guilty before the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) and the Fourth Circuit’s decision in U.S. v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc). Therefore, during the plea colloquy, the district court did not inform defendant that he faced a maximum sentence of life imprisonment, instead of the maximum sentence of 20 years allowed after Apprendi. Defendant contended that by virtue of these errors, his plea was not knowing and voluntary, and therefore should be vacated. Because the law changed between the time of the plea and this appeal, the Fourth Circuit treated the court’s now-incorrect information as plain error. To merit relief, defendant had to establish that he was prejudiced by the error. Defendant made no argument in his brief as to how the court’s advice about the maximum sentence affected his decision to plead guilty, nor did he contend that he would not have pleaded guilty if he had known that his sentence could not have exceeded 20 years. Defendant did not meet his burden of establishing “that, absent the Rule 11 errors, he would not have entered into his plea agreement.” U.S. v. Cannady, 283 F.3d 641 (4th Cir. 2002).
4th Circuit upholds conviction despite absence of drug quantity in indictment. (120) Attributing 1.9 kilograms of pure methamphetamine to defendant, the district court assigned him an offense level of 36 and sentenced him to life imprisonment. The life sentence exceeded the statutory maximum otherwise applicable under the then-current version of 21 U.S.C. § 841(b)(1)(C). The government conceded that Apprendi v. New Jersey, 530 U.S. 466 (2000) and the 4th Circuit’s decisions in U.S. v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc) and U.S. v. Cotton, 261 F.3d 397 (4th Cir. 2001) required the court to vacated defendant’s sentence and remand for resentencing. Defendant also contended that the absence of a specific drug quantity in his indictment required reversal of his conviction. However, Promise also held that an indictment that charges an unspecified drug quantity sufficed to support a conviction under 21 U.S.C. § 841, and affirmed the conviction despite Promise’s direct challenge to it. Judge Luttig dissented. U.S. v. Benenhaley, 281 F.3d 423 (4th Cir. 2002).
4th Circuit holds that failure to include drug quantity in indictment did not invalidate guilty plea. (120) Defendant argued that because the indictment did not contain drug quantity and the district court did not inform him that the government would be required to prove drug quantity beyond a reasonable doubt, his plea was involuntary and invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000). In U.S. v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), the Fourth Circuit held that an indictment that does not include drug quantity properly charges an offense under § 841, but that the penalty cannot exceed that attributable to an offense for an unspecified quantity of the drug type alleged in the indictment. Thus, the Fourth Circuit ruled that the failure to include drug quantity in the indictment here did not invalidate the current defendant’s guilty plea because drug quantity was not an element of the offense for which he was sentenced. U.S. v. General, 278 F.3d 389 (4th Cir. 2002).
4th Circuit holds that § 841 is not facially unconstitutional. (120) Defendant argued that 21 U.S.C. § 841 is facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000) because § 841 requires that drug quantity findings be made by a sentencing judge rather than a jury. The Fourth Circuit disagreed, joining the Fifth, Sixth, Seventh, and Tenth Circuits in holding that § 841 is not factually unconstitutional. Section 841 simply defines a crime and assigns penalty ranges depending upon particular characteristics of the crime. Nothing in the statute purports to prescribe a process by which the elements of the crime and other relevant facts must be determined. Accordingly, nothing in § 841 conflicts with the Apprendi rule, which governs that process only. The one case which has held that Apprendi renders § 841 facially unconstitutional, U.S. v. Buckland, 259 F.3d 1157 (9th Cir. 2001), rehearing en banc granted, 265 F.3d 1085 (2001), fails to recognize the difference between permitting the sentencing judge to determine drug quantity and requiring that drug quantity be determined by the sentencing judge. U.S. v. McAllister, 272 F.3d 228 (4th Cir. 2001).
4th Circuit holds that use of semiautomatic weapon is a sentencing factor, not element of separate offense. (120) Defendants pled guilty to using or carrying a firearm in a crime of violence, 18 U.S.C. § 924(c). Section 924(c)(1)(B)(i) provides for a sentence of not less than 10 years if the firearm is a semiautomatic assault weapon. Relying on the Supreme Court’s decision in Castillo v. U.S., 530 F.3d 120 (2000), defendants argued that subsections under § 924(c)(1)(B) create elements of separate offenses that must be charged and proved beyond a reasonable doubt. Castillo held that Congress intended the firearm type-related words (such as machine-gun) used in § 924(c)(1) to refer to elements of separate, aggravated crimes rather than sentencing factors that authorize an enhanced penalty. The Fourth Circuit found that Castillo, which was based on a previous version of § 924(c), distinguishable, and affirmed defendants’ ten-year mandatory minimum sentences. In 1998, the statute was amended, and now no longer provides for a determinate statutory sentence. Instead, it require a sentence of “not less than 10 years” for the use of a semiautomatic weapon, and “not less than 30 years” for a machine gun. This is the language of a mandatory minimum sentence, to be imposed where a defendant has committed a base crime and certain aggravating circumstances are present. As a provision marking out a separate offense, § 924(c)(1)(B) would be incomplete, setting forth no determinate sentence or even any upper limit on sentencing. U.S. v. Harrison, 272 F.3d 220 (4th Cir. 2001).
4th Circuit says life sentences were harmless error where court could have imposed consecutive sentences totaling 240 and 380 years. (120) Four defendants argued that they were entitled to be resentenced, under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the drug quantities on which their sentences were based were not found by a jury beyond a reasonable doubt. The Fourth Circuit rejected all four claims. Defendants each received multiple life and 30-year sentences, which exceeded the base 20-year maximums under § 841 for convictions involving an unspecified drug quantity. However, defendants could not meet the final two prongs of the plain error analysis – they could not show that the error affected their substantial rights, nor that it “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Under USSG § 5G1.2(d), if the total punishment mandated by the guidelines exceeds the highest statutory maximum, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. One defendant was found guilty of 12 separate drug trafficking counts and the other of 19 such counts. Even with a 20-year maximum sentence for a single conviction, the guidelines’ stacking rules would have required the district court to impose consecutive sentences upon these defendants that grossly exceeded the span of the concurrent life sentences that were actually imposed. U.S. v. Roberts, 262 F.3d 286 (4th Cir. 2001).
4th Circuit finds no plain Apprendi error where evidence of drug quantity was overwhelming. (120) Although the indictment charged defendants with a sufficient quantity of drugs to support a life sentence, the court did not submit the issue of drug quantity to a jury. In U.S. v. Promise, 255 F.3d 150 (4th Cir. 2001), the Fourth Circuit en banc held that drug quantity was to be treated as an element of an aggravated drug offense. However, pursuant to U.S. v. Stewart, 256 F.3d 231 (4th Cir. 2001), if drug quantity was charged in the indictment, as it was here, then failure to submit drug quantity to the jury does not affect a defendant’s substantial rights if the trial produced “uncontested and overwhelming evidence” of drug quantity sufficient to sustain the sentence. The Fourth Circuit found that the evidence that defendants’ conspiracy involved more than 50 grams of crack and more than one kilogram of heroin was even more overwhelming than in Stewart. For example, a former “lookout” testified that the drug ring sold more than 300 bags of crack per day, which was about 49 grams per day in a conspiracy spanning several years. Numerous others testified about large drug quantities. The evidence regarding drug quantity was essentially uncontested and overwhelming. U.S. v. Montgomery, 262 F.3d 233 (4th Cir. 2001).
4th Circuit rules Apprendi error was harmless because guidelines would have required consecutive sentences. (120) Defendants were each sentenced under § 841(b)(1)(A) and (B) on numerous drug counts, even though the jury did not find the threshold drug quantities that would justify using these subsections. The Fourth Circuit ruled that the Apprendi error was harmless, because defendants would have received the same sentences regardless of the error. The guidelines range for both defendants was 292-365 months’ imprisonment. However, defendants were exposed to far greater statutory maximum terms – one defendant to a total of 180 years on nine counts, and the other defendant to 160 years on eight counts. Even if the court had not exceeded the 20-year statutory maximum for each count, the court would have been required by USSG § 5G1.2(d) to impose consecutive sentences in order to attain prison terms within the prescribed guidelines range. Thus, defendants’ substantial rights were not affected by the Apprendi error. U.S. v. Stokes, 261 F.3d 496 (4th Cir. 2001).
4th Circuit holds that loss enhancement did not violate due process or Apprendi. (120) Defendant’s company, a subcontractor for firms having contracts with the Virginia Department of Transportation (VDOT), regularly submitted inflated invoices to VDOT’s prime contractors, who in turn passed the invoices on to VDOT for payment. Defendant’s sentence was based on a calculated loss of $435,038.33, which resulted in a nine-level increase under § 2F1.1. Defendant argued that the loss should have been limited to the loss reflected by the individual invoices listed in the indictment ($19,008), and that the loss calculation became the “tail which wags the dog of the substantive offense,” in violation of his due process rights. See McMillan v. Pennsylvania, 477 U.S. 79 (1986). Also, he contended that the amount of loss was an essential element of the offense of conviction not proven beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Fourth Circuit found no due process violation and no Apprendi violation. The fines and terms of imprisonment imposed upon defendants were within the statutory maximums allowed for the offenses of conviction. Thus, defendant’s Apprendi argument was foreclosed by U.S. v. Kinter, 235 F.3d 192 (4th Cir. 2000). Moreover, the sentencing increase based upon the additional loss was not so great or disproportionate as to otherwise implicate due process concerns discussed in McMillan. U.S. v. Photogrammetric Data Services, 259 F.3d 229 (4th Cir. 2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).
4th Circuit says presence of deadly weapon or bodily injury are elements of separate offenses, not sentencing factors. (120) Defendant was convicted of assaulting a federal officer, in violation of 18 U.S.C. § 111(b). Section 111 provides maximum penalties of (i) one year for simple assault, or an assault not involving physical contact, (ii) ten years for assault involving use of a dangerous or deadly weapon or infliction of bodily injury, and (iii) three years for all other assaults. The Fourth Circuit held that the presence of bodily injury or use of a deadly or dangerous weapon are essential elements of an offense under § 111(b), rather than mere sentencing enhancements. Thus, they must be charged in the indictment and proved to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466 (2000). The indictment here failed to allege infliction of bodily injury, and the element of bodily injury was not submitted to the jury. However, the district court made a finding at sentencing that defendant inflicted bodily injury, and sentenced him to ten years. This ten-year sentence for an offense element – infliction of bodily injury – that was neither charged in the indictment nor proved to the jury constituted plain error. The error affected defendant’s substantial rights because it exposed him to a term of imprisonment greater than the statutory maximum for the crime of which he was convicted. U.S. v. Campbell, 259 F.3d 293 (4th Cir. 2001).
4th Circuit finds no “plain” Apprendi error where 240-month sentence could have been achieved by consecutive sentences. (120) Defendant Simms was convicted of six counts of possession with intent to distribute marijuana. The district court held him accountable at sentencing for between 1000 and 3000 kilograms of marijuana, and sentenced him to 240 months. The Fourth Circuit assumed that the statutory maximum for each count was 60 months, but declined to notice any Apprendi error, because under § 5G1.2(d), the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. Thus, the district court would have been obliged to impose consecutive sentences on the six counts until it reached the 240 month sentence that was actually imposed. U.S. v. Stewart, 256 F.3d 231 (4th Cir. 2001).
4th Circuit holds drug quantity and type are elements of § 841 but Apprendi error was not “plain.” (120) In U.S. v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc) and U.S. v. Angle, 254 F.3d 514 (4th Cir. 2001) (en banc), the Fourth Circuit held that drug quantity and type are elements of 21 U.S.C. § 841. However, the failure to instruct the jury on an element of an offense is not error per se. Neder v. U.S., 527 U.S. 1 (1999). Defendant did not raise this issue in the district court, so it was reviewable only for “plain error.” The Fourth Circuit found no plain error because of the “uncontested and overwhelming evidence” implicating defendant with “several times more than 50 kilograms of marijuana.” Thus, defendant was unable to demonstrate that his 360-month sentence exceeded the statutory penalty that would have been authorized by the jury verdict absent the erroneous jury instruction. U.S. v. Stewart, 256 F.3d 231 (4th Cir. 2001).
4th Circuit, en banc, splits three ways on Apprendi, finding plain error but affirming sentence. (120) Defendant was convicted of conspiracy involving cocaine and cocaine base and sentenced to 30 years in custody. The en banc Fourth Circuit divided 4-3-4 on whether this violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Seven of the eleven judges held that the 30-year sentence was “plain error” because it exceeded the 20-year maximum for an unspecified quantity of cocaine in 21 U.S.C. § 841(b)(1)(C). However, three of the seven judges exercised their discretion not to notice the error under the fourth prong of the “plain error” test, because the drug quantity was “both overwhelming and essentially uncontroverted.” The other four judges in the majority would have reversed, but the remaining four judges on the court voted to affirm on the ground that there was no Apprendi error at all because the maximum sentence under § 841 is life imprisonment. One of these four judges took the Department of Justice to task for failing to urge this position. U.S. v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc).
4th Circuit holds that sentence and supervised release term did not violate Apprendi. (120) Defendant argued that the court erred in enhancing his prison sentence, and in imposing a sentence of eight years of supervised release, based on an amount of drugs that were not charged in the indictment or proved beyond a reasonable doubt to the jury. See Apprendi v. New Jersey, 530 U.S. 466 (2000). The Fourth Circuit held that defendant’s 210-month sentence did not violate the rule in Apprendi because it did not exceed the prescribed statutory maximum sentence for the offense of conviction. Since defendant had a prior felony drug conviction, the maximum sentence he could have received without regard to drug quantity was 30 years. See 21 U.S.C. § 841(b)(1)(C). The eight-year term of supervised release also did not violate Apprendi. Section 841(b)(1)(C) provides that, without regard to drug amount, a defendant who has a prior felony conviction is subject to a term of supervised release of at least six years. Six years is the statutory minimum, not a statutory maximum. U.S. v. Osteen, 254 F.3d 521 (4th Cir. 2001).
4th Circuit, en banc, finds no Apprendi “plain error” where multiple convictions meant 60-year maximum. (120) The en banc Fourth Circuit concluded that defendant Phifer’s substantial rights were not affected by his 292-month sentence for cocaine and cocaine base trafficking. Although the maximum penalty for a single conviction was 20 years, he was convicted of three counts, and § 5G1.2(d) would have obligated the district court to impose consecutive sentences in order to achieve the 292-month guideline sentence. Thus, there was no plain error under Apprendi v. New Jersey, 530 U.S. 466 (2000). Co-defendant Angle’s 210-month sentence did not violate Apprendi, but his case was remanded for more specific fact finding on the amount of drugs attributable to him for sentencing purposes. U.S. v. Angle, 254 F.3d 514 (4th Cir. 2001) (en banc).
4th Circuit holds that Apprendi does not apply retroactively to cases on collateral attack. (120) Defendant argued that his Apprendi claim was not time-barred under 28 U.S.C. § 2255(3), which permits a habeas petition to be brought within one-year after “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” The Fourth Circuit, agreeing with the Ninth Circuit, Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000), and the majority of district court to consider the issue, held that Apprendi does not apply retroactively to cases on collateral attack. New rules of constitutional criminal procedure are generally not applied retroactively on collateral review, Teague v. Lane, 289 U.S. 288 (1989), unless they fall within one of two narrow exceptions, neither of which were applicable here. U.S. v. Sanders, 247 F.3d 139 (4th Cir. 2001).
4th Circuit holds that defendant procedurally defaulted Apprendi claim. (120) Defendant did not raise the argument at sentencing or on appeal that a jury should have determined beyond a reasonable doubt the types or quantities of drugs involved in his conspiracy. See Apprendi v. New Jersey, 530 U.S. 466 (2000). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’“ Bousley v. U.S., 523 U.S. 614 (1998). The Fourth Circuit ruled that defendant could not demonstrate “cause.” Although a claim that is “so novel that its legal basis is not reasonably available to counsel” may constitute cause for a procedural default, defendant’s Apprendi claim was not novel, because ‘the foundation for Apprendi was laid long before [defendant was sentenced]. Other defendants have been making Apprendi-like arguments ever since the Sentencing Guidelines came into being, and in McMillan v. Pennsylvania, 477 U.S. 79, (1986), the Court addressed on the merits an argument along similar lines.” U.S. v. Smith, 241 F.3d 546 (7th Cir. 2001). “The germs of [defendant’s] Apprendi claim had sprouted at the time of his conviction and there [was] no reason why he could not have raised it then.” U.S. v. Sanders, 247 F.3d 139 (4th Cir. 2001).
4th Circuit says alleged Apprendi error did not affect substantial rights. (120) Defendants challenged their drug sentences under Apprendi v. New Jersey, 530 U.S. 466 (2000), maintaining they were improperly denied the right to have the jury find drug quantities and other sentencing-enhancing facts. The government conceded, based on the now-vacated decision in U.S. v. Angle, 230 F.3d 113 (4th Cir. 2000), vacated and rehearing en banc granted, January 17, 2001, that there was plain error as to those defendant whose sentences were enhanced beyond 240 months based on the quantity of drugs involved. However, it argued that because the error was not preserved, under plain-error principles, these defendants were required to established that the error affected their substantial rights. The Fourth Circuit agreed that defendant could not meet this burden, since the overwhelming and uncontroverted evidence demonstrated amounts hundreds of times more than the amounts charged. Thus, the jury verdict would have been the same even if the jury been asked specifically to find whether the conspiracy involved more than five kilograms of cocaine or 50 grams of crack. U.S. v. Strickland, 245 F.3d 368 (4th Cir. 2001).
4th Circuit holds that indictment charging “detectable amount” of marijuana was adequate. (120) Defendant contended that his indictment charging him with a “detectable amount” of heroin was flawed because it failed to charge him with the offense for which he was sentenced – the distribution of 1-3 kilograms of heroin. The Fourth Circuit ruled that the indictment was adequate because the amount charged in the indictment, “a detectable amount” of heroin, fulfilled the language of 21 U.S.C. § 841. Defendant’s challenge could not relate to the indictment or jury finding of guilt on that indictment, but to sentencing, in which the district court found that defendant was involved in the distribution of 1-3 kilograms of heroin. However, U.S. v. Kinter, 235 F.3d 192 (4th Cir. 2000) instructs that factual determinations that increase a defendant’s sentence under the sentencing guidelines do not implicate Apprendi v. New Jersey, 530 U.S. 466 (2000) and may be made by the sentencing judge as long as the sentence imposed is less than the statutory maximum for the offense of conviction. The maximum sentence for distributing an unspecified, detectable amount of heroin is 20 years. Defendant’s sentence was only 200 months. U.S. v. Obi, 239 F.3d 662 (4th Cir. 2001).
4th Circuit holds that § 3583 does not cap period of supervised release under drug statute. (120) Defendant argued that his five-year term of supervised release violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Fourth Circuit disagreed, ruling that three years is not the maximum term of supervised release permitted by § 841(b)(1)(C). The statute says that the court shall impose a term of supervised release “of at least” three years. Contrary to defendant’s claim, 18 U.S.C. § 3583 does not cap the period of supervised release that a court may impose under § 841(b)(1)(C). Section 3583 states that [e]xcept as otherwise provided, the authorized term[] of supervised release … for a Class C … felony [is] not more than three years.” This cap does apply to statutes, such as § 841(b)(1)(C), whose own mandatory minimum periods of supervised release are the same as, or exceed, the maximum periods provided by § 3583. U.S. v. Pratt, 239 F.3d 640 (4th Cir. 2001).
4th Circuit holds that Apprendi error did not affect defendant’s substantial rights. (120) For the first time on appeal, defendant contended that his 360-month sentence was invalid under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) because it exceeded the maximum statutory penalty authorized by the jury verdict. Assuming that the sentence was in error and the error was plain, the Fourth Circuit still affirmed the sentence because defendant did not show that the error affected his substantial rights. To affect substantial rights, defendant had to demonstrate that the error was prejudicial, i.e. that it “actually affected the outcome of the proceedings.” Defendant was convicted of two drug counts. Guideline § 5G1.2(d) states that in the case of multiple counts of conviction, if the total punishment mandated by the guidelines exceeds the highest statutory maximum, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. Even if the maximum penalty for each of his offenses was 240 months, the district court would still have been obligated to calculate a guideline sentence by making a drug quantity finding. Given its finding that defendant’s total punishment under the guidelines should be 360 months, the court would have been obligated to reach that total sentence by imposing a term of 240 months or less on each count, and ordering those terms to be served consecutively to achieve the total punishment mandated by the guidelines. U.S. v. White, 238 F.3d 537 (4th Cir. 2001).
4th Circuit holds that Apprendi does not apply to guideline increases within statutory maximum. (120) Defendant was convicted of bribing a public official. The sentencing judge determined, by a preponderance of the evidence, that the benefit received from the bribes was $9.5 million, which increased defendant’s guideline sentence from a maximum of ten months to a range of 46-57 months. Defendant argued that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) required these facts to be submitted to a jury and proven beyond a reasonable doubt before they could form the basis of a sentence enhancement. Apprendi applies to factual determinations that increase the penalty for a crime beyond “the prescribed statutory maximum.” The Fourth Circuit held that the “prescribed statutory maximum” refers to the statute criminalizing the offense, and not sentencing enhancements under the guidelines. Under defendant’s arguments, district courts would no longer be permitted to make factual determinations that had the effect, in any real sense, of enhancing the defendant’s sentence, and the guidelines would be rendered essentially useless, which would undermine the constitutional seal of approval bestowed upon the Sentencing Commission by the Supreme Court in Mistretta v. United States, 488 U.S. 361 (1989). U.S. v. Kinter, 235 F.3d 192 (4th Cir. 2000).
4th Circuit says Apprendi not applicable where tax loss did not increase statutory maximum. (120) Defendant, relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), argued that her sentence violated due process because the tax loss on which her guideline range was based was not charged in the indictment and found by the jury beyond a reasonable doubt. The Fourth Circuit held that Apprendi was not applicable, because it was limited to facts that increase punishment beyond the prescribed statutory maximum. Here, because no fact found by the district court resulted in a penalty greater than the applicable statutory maximum, defendant’s due process rights were not violated. U.S. v. Lewis, 235 F.3d 215 (4th Cir. 2000).
4th Circuit holds that sentences within statutory maximum did not violate Apprendi. (120) Defendants challenged their sentences under Apprendi v. New Jersey, 530, U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). The Fourth Circuit found no Apprendi issue as to the first defendant’s Continuing Criminal Enterprise conviction, in violation of 21 U.S.C. § 848, or as to his conviction for possessing with intent to distribute more than 50 grams of crack, in violation of 21 U.S.C. § 841(b)(1)(A)(iii). Both statutes provide for a maximum term of life imprisonment. A second defendant’s 235-month sentence for a drug conspiracy conviction also did not violate Apprendi. Where, as here, a general verdict of guilt is returned on a count charging a conspiracy to distribute multiple kinds of drugs, the sentence imposed may not exceed the statutory maximum for the least-punished object of the conspiracy on which the verdict could have been based. Here, the least punished object on which the conspiracy conviction could have been based was distribution of heroin, in violation of § 841(a)(1) and § 841(b)(1)(C). The maximum sentence was 240 months, and thus, defendant’s 235-month was within this statutory maximum. U.S. v. Richardson, 233 F.3d 223 (4th Cir. 2000).
4th Circuit holds that Sentencing Reform Act and guidelines are not Bill of Attainer. (120) Defendant argued that the Sentencing Reform Act of 1984 and the guidelines constitute a Bill of Attainer, since they permit an increase in punishment because of relevant conduct. The Fourth Circuit held that the Sentencing Reform Act and the guidelines are not a Bill of Attainer. A Bill of Attainder is a legislative determination of guilt which metes out punishment to named individuals. Neither the Sentencing Reform Act nor the guidelines specifically single out any one individual for an increase in punishment. The relevant conduct section provides for increased punishment for all defendants who have engaged in additional relevant conduct rather than for a specific defendant. U.S. v. Dorlouis, 107 F.3d 248 (4th Cir. 1997).
4th Circuit upholds obstruction enhancement for misrepresenting attorneys’ fees to probation officer. (120) During his presentence interview, defendant told his probation officer that he had paid his attorney $6,000 in attorneys’ fees, when in fact he had paid him $60,000. The 4th Circuit affirmed this misrepresentation as a ground for an obstruction of justice enhancement. The false statement was material, because it affected the court’s ability to impose an appropriate fine. The court rejected defendant’s claim that the statement was obtained in violation of his 5th Amendment right against self-incrimination and his 6th Amendment right to counsel. A defendant who pleads guilty waives his right to remain silent. Miranda warnings are not required prior to routine presentence interviews. Moreover, there was no 6th Amendment right to counsel because the presentence interview is not a critical stage of the criminal proceedings. U.S. v. Hicks, 948 F.2d 877 (4th Cir. 1991).
4th Circuit determines that amount of drugs need only be proven by a preponderance of the evidence. (120) Defendant contended that the sentencing guidelines were unconstitutional because they did not provide for trial by jury to determine the quantity of drugs involved in his offense, and because the quantity of drugs involved need not be proven beyond a reasonable doubt. The 4th Circuit rejected these arguments. Since the quantity of drugs goes to the question of the sentence rather than guilt, a trial by jury is not required, and the government need only prove the quantity by a preponderance of the evidence. U.S. v. Engleman, 916 F.2d 182 (4th Cir. 1990).
5th Circuit holds Alleyne did not preclude judicial fact-finding about “safety valve.” (120) Defen-dant pled guilty to drug charges. He argued that the fail¬ure to apply the safety valve provision under 18 U.S.C. §3553(f) violated Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013), because a judge rather than a jury found a fact that precluded its application to him (posses¬sion of a firearm in connection with the offense). The Eighth Cir¬cuit ruled that Alleyne was inapplicable. Alleyne held that any fact that increases a statutory mandatory minimum sentence must be found by a jury beyond a reasonable doubt. In contrast, the safety valve statute provides that a defendant who qualifies for the safety valve shall be sentenced without regard to a statutory mandatory minimum sentence. 18 U.S.C. §3553(f). That is, the safety valve does not increase the mandatory minimum; instead, it removes it. U.S. v. King, __ F.3d __ (5th Cir. Dec. 4, 2014) No. 14-10146.
5th Circuit finds increase for death or serious bodily injury did not violate Apprendi. (120) Defendant pled guilty to possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). She did not plead guilty to death or serious bodily injury resulting from the use of these substances, but the PSR indicated that some of the heroin sold by defendant caused the death of Reitz. Based on Reitz’s death, the district court applied § 2D1.1(a)(2), which provides for a higher offense level when an individual is convicted under § 841(b)(1)(C) “and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance.” Defendant argued that the district court violated Apprendi because the allegation of death was not charged in the indictment or proven to a jury beyond a reasonable doubt. The Fifth Circuit held that because the 240-month sentence imposed by the court was not beyond the statutory maximum, the sentence did not violate Apprendi. U.S. v. Greenough, 669 F.3d 567 (5th Cir. 2012).
5th Circuit rejects Sixth Amendment challenge to departure based on judge-found facts. (120) Defendant purchased guns for an organization involved in illegal firearm trafficking. Many of the guns were recovered from crimes scenes in Mexico. The court departed upward from a 51-63 month guideline range to a sentence of 97 months, based on the type of firearms (military-type assault weapons), the number of firearms (substantially more than 25), and the fact that defendant’s actions led to eight murders in Mexico. Defendant argued, based on Justice Scalia’s concurrence in Rita and Gall, that his sentence violated the Sixth Amendment right to a jury trial because it was based on judge-found facts. The Fifth Circuit found this argument foreclosed by its precedent rejecting Sixth Amendment challenges to a within-guideline range sentence. See U.S. v. Setser, 568 F.3d 482 (5th Cir. 2007) (sentencing judge is entitled to find by a preponderance of the evidence all facts relevant to the determination of sentencing range). Justice Scalia’s reasoning in Rita and Gall makes no distinction between within-guidelines and above-guidelines sentences that are reasonable based solely on judge-found facts. U.S. v. Hernandez, 633 F.3d 370 (5th Cir. 2011).
5th Circuit finds Apprendi error in basing sentence on uncharged physical contact not submitted to jury. (120) Defendant was convicted of two counts of forcible assault on a police officer. She argued that the district court plainly erred by sentencing her to 21 months of imprisonment and two years of supervised release, because she was convicted of misdemeanors that were punishable by no more than 12 months of imprisonment. The parties agreed that there was plain error under Apprendi since the fact of physical contact with the officer (which would have transformed the misdemeanor to a felony) was neither charged in the indictment nor submitted to the jury. The Fifth Circuit found that the error affected defendant’s substantial rights and reversed. Although the district court could have imposed consecutive sentences, under the terms of § 5G1.2(d), it can do so “only to the extent necessary to produce a combined sentence equal to the total punishment” – i.e., the top of the guideline range. Any sentence above 18 months, the top of that range, would be an upward departure. The court made no findings in its written order of judgment supporting an upward departure, and there was no indication the court would have upwardly departed had it sentenced defendant under the correct guideline range. U.S. v. Williams, 602 F.3d 313 (5th Cir. 2010).
5th Circuit says requiring government motion for third-level acceptance of responsibility reduction does not violate separation of powers. (120) Defendant received a two-level acceptance of responsibility reduction, but did not receive the additional one-level reduction for timely notice of his intention to plead guilty. He argued that the amendment to § 3E1.1, making a government motion necessary for the one-level decrease, violated principles of separation of powers by shifting judicial power to the executive branch. The Fifth Circuit rejected the argument. In Mistretta v. United States, 488 u.s. 361 (1989), the Supreme Court stated that “the scope of judicial discretion with respect to a sentence is subject to congressional control.” In an unpublished case, the Fifth Circuit held that Booker foreclosed the claim that § 3E1.1(b) results in an unconstitutional violation of the separation of powers doctrine. See U.S. v. Huff, 134 Fed. Appx. 697 (5th Cir. 2005). The panel here found no reason to deviate from that position. U.S. v. Newsom, 515 F.3d 374 (5th Cir. 2008).
5th Circuit reaffirms that jury drug-quantity finding triggers mandatory minimum. (120) At defendant’s trial on methamphetamine-trafficking charges, the jury found that his offense involved a sufficient quantity of the drug to trigger a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A). The district court sentenced defendant to a mandatory minimum. Relying on U.S. v. Becerra, 155 F.3d 740 (5th Cir. 1998), defendant argued that drug quantity and type are not elements of a § 841 violation, and therefore the court could disregard the jury’s finding and make its own determination of the quantity of methamphetamine involved in defendant’s offense. In an order denying a petition for rehearing, the Fifth Circuit held that after Booker, the jury’s findings as to the type and quantity of drugs are not “gratuitous” and that a court may not disregard a jury finding that triggers a mandatory minimum sentence under § 841(b). To the extent that Becerra held otherwise, it was abrogated by Booker. U.S. v. Farias, 481 F.3d 289 (5th Cir. 2007).
5th Circuit holds that consecutive sentences and statement that sentence was “fair and appropriate” did not prove Fanfan error was harmless. (120) Defendant objected at sentencing to the mandatory application of the Sentencing Guidelines in light of Blakely and Apprendi. Because he preserved for review this so-called “Fanfan” claim, the Fifth Circuit reviewed for harmless error. Under this standard, the government carries the burden of proving “beyond a reasonable doubt” that the district court would not have sentenced the defendant differently had it acted under an advisory guideline regime. As evidence that the error was harmless, the government noted that the court ordered defendant to serve his two sentences consecutively. In addition, the court stated on the record its belief that the entire sentence was “fair and appropriate … under the applicable law.” The Fifth Circuit held that this was insufficient to establish that the court would have imposed the same sentence under an advisory guideline scheme. Defendant’s two sentence were for factually unrelated crimes. Therefore, it was likely district court simply meant to provide two distinct sentences. The court’s comment that the two sentences were “fair and appropriate” under “applicable law” could be interpreted several ways, and was insufficient to meet the government’s burden of proving harmless error. U.S. v. Zamora-Vallejo, 470 F.3d 592 (5th Cir. 2006).
5th Circuit holds that defendant did not waive Fanfan claim by agreeing to be sentenced under guidelines. (120) Defendant agreed, as part of his plea agreement, to be sentenced pursuant to the applicable Sentencing Guidelines. The government argued that the plea agreement barred defendant from raising a Fanfan argument, i.e. a claim that the court erred by sentencing him under the mandatory guideline scheme. The Fifth Circuit held that the argument was foreclosed by U.S. v. Reyes-Celestino, 443 F.3d 451 (5th Cir. 2006), which dealt with precisely the same waiver language, circumstances and the type of the challenge as this case. U.S. v. Zamora-Vallejo, 470 F.3d 592 (5th Cir. 2006).
5th Circuit finds any Booker error was harmless where defendant was sentenced to mandatory minimum. (120) Defendant objected to the district court’s adoption of the PSR, which used facts not found by a jury beyond a reasonable doubt in calculating his sentence. Because defendant preserved his Booker challenge, the Fifth Circuit reviewed for harmless error. The panel ruled that any error was harmless, because the district court would have sentenced defendant to the same 10 years’ imprisonment under 21 U.S.C. § 841(b)(1)(A), regardless of whether it considered the additional drug quantities alleged in the PSR. Section 841(b)(1)(A) mandates a minimum sentence of ten years’ imprisonment for a conviction under § 841(a) involving 500 grams or more of a mixture or substance containing methamphetamine. Defendant was convicted of such an offense. The district court could not have sentenced him to anything less than 10 years in prison. U.S. v. Treft, 447 F.3d 421 (5th Cir. 2006).
5th Circuit holds that court properly enhanced advisory guideline range based on facts not charged in the indictment or admitted by him. (120) Defendant argued that he had a Fifth Amendment right to have all of the facts used to enhance his guideline range found by a grand jury and charged in his indictment, pursuant to Blakely and Booker. However, while Booker held that any fact increasing punishment must be admitted by the defendant or proved to a jury, it also made clear that the decisive factor that made pre-Booker sentencing problematic was not extra-verdict enhancements but their use in a mandatory guidelines system. Thus, because defendant’s 121-month sentence did not exceed the statutory maximum, and the district court applied the guidelines in an advisory fashion, the Fifth Circuit held that the district court properly enhanced defendant’s advisory guideline range based on facts not charged in the indictment or admitted by him. U.S. v. Thomas, 446 F.3d 1348 (5th Cir. 2006).
5th Circuit says defendant did not waive Fanfan claim by signing agreement in which he agreed to be sentenced under applicable guidelines. (120) Defendant argued that the district court erred by sentencing him under the mandatory guideline scheme held unconstitutional by U.S. v. Booker, 543 U.S. 220 (2005). The type of error is characterized as a Fanfan claim. See U.S. v. Valenzuela-Quevedo, 407 F.3d 728 (5th Cir. 2005). Defendant’s plea agreement stated: “The defendant explicitly consents to be sentenced pursuant to the applicable Sentencing Guidelines.” The Fifth Circuit held that the waiver did not preclude defendant from raising on appeal an alleged Fanfan error. Defendant did not unambiguously agreed to a mandatory application of the Sentencing Guidelines. U.S. v. Reyes-Celestino, 443 F.3d 451 (5th Cir. 2006).
5th Circuit applies abuse of discretion review of non-guideline sentence. (120) Defendant argued that his non-guideline sentence was unreasonable. The Fifth Circuit held that the standard of review for a non-guideline sentence was an abuse of discretion. Although the court must conduct a more thorough review of non-guideline sentences than of guideline sentences, see U.S. v. Mares, 402 F.3d 511 (5th Cir. 2005), the “inquiry in conducting that more thorough review will be limited to determining whether the trial judge overreached the discretionary sentencing authority afforded under Booker.” The judge must justify a non-guideline sentence with “fact specific reasons involving aggravating circumstances, personal characteristics of the defendant, his offense conduct, criminal history, and other conduct specific to the case at hand.” The judge satisfied this requirement by finding that defendant’s offenses were “the most heinous of all crimes in that you took advantage of children that were under your care as a Boy Scout leader,” and noted that he persisted in writing the victims while incarcerated after he had been instructed not to contact them. U.S. v. Reinhart, 442 F.3d 857 (8th Cir. 2006).
5th Circuit finds no vindictiveness in post-Booker resentencing that exceeded original pre-Booker sentence. (120) Defendant pled guilty to the sexual exploitation of children through the production of child pornography. The district court initially held him accountable for four victims, and imposed a 235-month sentence. After a successful appeal resulted in the elimination of one victim, the district court recalculated his guideline range at 168-210 months, and sentenced defendant to 210 months. Defendant successfully appealed again, resulting in the elimination of two more victims. However, before defendant was resentenced, the Supreme Court decided U.S. v. Booker, 543 U.S. 220 (2005). The new guideline range, once two more victims were removed, was 121-151 months. However, the district court sentenced defendant to 235 months, stressing the “heinous” nature of the crime, defendant’s repeated attempts to contact the victims while incarcerated, and the court’s new discretion under Booker. The Fifth Circuit held that the new sentence was not presumptively vindictive. There is no reason to find vindictiveness in a longer sentence that has its basis in the trial court’s newly expanded sentencing authority. Here, the court believed the longer sentence was the proper one from the start, but its hands were tied by the mandatory nature of the guidelines. The sentence was reasonable. U.S. v. Reinhart, 442 F.3d 857 (8th Cir. 2006).
5th Circuit says defendant failed to show that Booker error affected substantial rights. (120) The district court departed downward from Criminal History Category III to II, which resulted in a new sentencing range of 41 to 51 months. The court imposed a sentence of 41 months. The Fifth Circuit ruled that defendant did not carry his burden of showing that the court’s Booker error (applying the guidelines in a mandatory fashion) affected the outcome of the district court proceedings. Although the court granted him a downward departure because it viewed the pre-departure guideline sentencing range as being too severe, that was beside the point. The issue was whether the district court would have imposed a sentence different from that which it actually imposed, i.e. the post-departure sentence. Although the court’s downward departure might plausibly indicate that it viewed the pre-departure sentence as too severe, it said nothing about the post-departure sentence. U.S. v. Robles-Vertiz, 442 F.3d 350 (5th Cir. 2006).
5th Circuit finds no plain error even if reasonable probability that court would impose lesser sentence under advisory guidelines. (120) Defendant argued for the first time in a supplemental brief on appeal that the district court’s application of the mandatory Sentencing Guidelines was reversible error. Under the plain-error standard, the court could correct an error in defendant’s sentence only if he demonstrated that there was (1) error, (2) that was plain, and (3) that affected substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice the error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. The Fifth Circuit agreed that the judge’s comments (expressing disagreement with precedent) might satisfy the third prong of plain error review because they suggested the court might have imposed a lesser sentence under an advisory guideline regime. However, even if these remarks satisfied the third prong, they were not sufficient to show a “possibility of injustice so grave as to warrant disregard of usual procedural rule. U.S. v. Duarte-Juarez, 441 F.3d 336 (5th Cir. 2006).
5th Circuit holds that variance above guideline range was not unreasonable. (120) Defendant pled guilty to being a felon in possession of a firearm. The district court found that defendant’s guideline range of 21-27 months did not adequately reflect his criminal history or parole status at the time of the offense, and imposed a 60-month sentence. The court found that the guideline range did not adequately take into account defendant’s (1) release on parole less than one month before the offense; (2) three drug convictions; and (3) three juvenile convictions, starting at age nine. The Fifth Circuit affirmed the variance. The court properly followed the procedure for imposing a non-guideline sentence, and the sentence reflected the § 3553(a) factors. Although defendant’s criminal history calculation recognized his status as a parolee at the time of the offense, the court noted that defendant had been released from prison “less than a month” beforehand, a temporal distinction which related to the history and characteristics of defendant. 18 U.S.C. § 3553(a)(1). U.S. v. Smith, 440 F.3d 704 (5th Cir. 2006).
5th Circuit holds that sentence at top of guideline maximum was insufficient to show Booker error was harmless. (120) The government conceded that the court erred by enhancing defendants’ offense level under the pre-Booker mandatory guideline system based on facts to which defendant did not admit and not found by a jury beyond a reasonable doubt. Defendant preserved his challenge by raising an Apprendi challenge in the district court. The government argued that the error was harmless based principally on the court’s decision to sentence defendant at the top of the applicable guideline range. The Fifth Circuit held that a sentence at the top of the guideline range is insufficient by itself to establish that a Booker error is harmless. While this may be sufficient under the plain error standard, under the harmless error standard the government bears a heavy burden of demonstrating that the court would not have imposed a different sentence under the advisory regime. The fact that the court imposed defendant’s sentence to run consecutively with any sentence imposed in defendant’s pending state criminal proceedings might, in some circumstances, suggest the error was harmless. However, there was no relationship between the state offenses and the current federal offenses. The mere imposition of consecutive sentences for unrelated crimes has little or no probative value tending to demonstrate that the Booker error was harmless. U.S. v. Woods, 440 F.3d 255 (5th Cir. 2006).
5th Circuit holds that Booker error in applying increase for pointing gun at officers was not harmless error. (120) Defendant was convicted of being a felon in possession of a firearm and related drug charges. He argued that a three-point enhancement under § 3A1.2(b) for aiming a firearm at pursuing officers violated his Sixth Amendment rights. The increase applies if, “in a manner creating a substantial risk of serious bodily injury”, the defendant “assaulted” a law enforcement officer “during the course of the offense or immediate flight therefrom.” The Fifth Circuit held that defendant’s Sixth Amendment rights were violated because the jury did not necessarily find that defendant aimed a firearm at the officers or otherwise engaged in conduct that created a substantial risk of serious injury. The error was not harmless under Rule 52(a). Although there is some indication in the record that the district court would have imposed the same or a harsher sentence under an advisory guideline scheme, it did not expressly state such an intention. U.S. v. Cain, 440 F.3d 672 (5th Cir. 2006).
5th Circuit remands where court’s pronouncement of alternative sentences was ambiguous. (120) The district court imposed a 63-month sentence under the guidelines, in violation of U.S. v. Booker, 543 U.S. 220 (2005). However, the district court also orally imposed two alternative sentences. First, the court imposed an identical alternative sentence of 63 months “in the event the guidelines are declared to be unconstitutional.” Second, the court imposed an alternative sentence of 21 months, if the guidelines could be applied in a Constitutional manner by applying only those enhancement factors that the jury finds beyond a reasonable doubt or that were admitted by the defendant. The Fifth Circuit remanded, finding the district court’s pronouncement of the alternative sentences to be ambiguous. The first alternative sentence anticipated that Booker would completely invalidate the guidelines. The trigger for this sentence was not met. In the second alternative, the judge anticipated that Booker would hold the Blakely principle applicable to the guidelines, but did not necessarily anticipate that it would render the guidelines advisory. Since it was unclear whether the court anticipated that the Supreme Court would take the remedial measure of rendering the guidelines advisory rather than completely invalidating them, the case was remanded for resentencing. U.S. v. Story, 439 F.3d 226 (5th Cir. 2006).
5th Circuit remands despite imposition of alternative sentence. (120) Applying the then-mandatory guidelines, the district court sentenced defendant to 240 months of imprisonment. The court also imposed an alternative sentence of 51 months “should the Sentencing Guidelines later be found to be unconstitutional in their entirety, or, should the Blakely case apply to the federal Sentencing Guidelines.” The Fifth Circuit remanded. First, the district court committed Booker error because it enhanced defendant’s sentence based on factors that defendant never admitted to and that were not found by a jury beyond a reasonable doubt. The first trigger for imposing the alternative sentence was not met – the Supreme Court did not declare the Sentencing Guidelines unconstitutional in their entirety. Although the second trigger was somewhat ambiguous, there was nothing in the record to suggest that the court anticipated Booker’s remedial holding and considered the Sentencing Guidelines as one factor among others listed in 18 U.S.C. § 3553(a). Therefore, the panel vacated defendant’s sentence and remanded for resentencing pursuant to Booker. U.S. v. Adair, 436 F.3d 520 (5th Cir. 2006).
5th Circuit holds that appeal waiver is not invalid merely because it was made before Booker. (120) Defendant sought to appeal his sentence under Booker/Fanfan, arguing that the court erred by treating the Sentencing Guidelines as mandatory. However, defendant agreed, as part of his written plea agreement, to waive all rights to appeal from his conviction and sentence. He argued that the waiver could not apply to the Booker/Fanfan issue because at the time of his sentencing, there was no right to be sentenced under advisory, non-mandatory guidelines. The Fifth Circuit joined the other circuits in holding that an otherwise valid appeal waiver is not rendered invalid or inapplicable to an appeal seeking to raise a Booker or Fanfan issue merely because the waiver was made before Booker. Apart from being made pre-Booker, defendant’s waiver was clearly otherwise valid, voluntary, knowing and intelligent, and applicable to the Fanfan issue which constituted his sole ground of appeal. U.S. v. Burns, 433 F.3d 442 (5th Cir. 2005).
5th Circuit holds that government did not establish that Booker error was harmless. (120) Defendant argued that the district court committed Booker error by applying upward adjustments based on judicial fact-finding under the then-mandatory Federal Sentencing Guidelines. Defendant preserved the error by making this claim below, citing Blakely v. Washington, 542 F.2d 296 (2004). The Fifth Circuit held that the government could not meet its burden of showing that the Booker error was harmless. The fact that the district court sentenced defendant within the middle of the applicable guideline range did not establish that the Booker error was harmless. U.S. v. Garza, 429 F.3d 165 (5th Cir. 2005).
5th Circuit holds that judge’s statement did not show reasonable probability of lesser sentence under advisory guidelines. (120) Defendant did not raise his Booker claims in the district court. Thus, under plain error review, at issue was whether defendant could demonstrate “that the sentencing judge would have reached a different result had it sentenced [defendant] under an advisory scheme rather than a mandatory one.” The Fifth Circuit ruled that defendant could not meet this standard. The judge’s statement that “there are many immigration laws that I don’t agree with” was not sufficient, particularly since the judge imposed the maximum sentence provided by the guidelines. U.S. v. Rodriguez-Gutierrez, 428 F.3d 201 (5th Cir. 2005).
5th Circuit upholds departure that was “close to the outer bounds of reasonableness.” (120) Defendant preserved his Booker challenge to the district court’s decision to depart upward by citing Blakely at his sentencing hearing. Nonetheless, the Fifth Circuit found that defendant was not entitled to resentencing, since the government demonstrated that the error was harmless. The court explained in its written reasons that defendant filed false reports with the IRS as a weapon against numerous public officials for daring to perform their public duties. The guideline under which defendant was sentenced, § 2T1.1, focuses primarily on filing false returns or claiming fraudulent deductions, not on using the IRS as a personal “attack dog.” Moreover, the guideline did not adequately take the number of victims into account – in defendant’s case, there were seven. The court’s reasons for its upward departure were not unreasonable, and defendant did not challenge the validity of the court’s reasons of its upward departure. While the extent of the departure (from 10 months to 60 months) came “close to the outer limits of reasonableness,” the court’s reasons for departing were valid and clearly justified a sentence of the length imposed by the court. U.S. v. Saldana, 427 F.3d 298 (5th Cir. 2005).
5th Circuit remands because court applied mandatory guideline regime. (120) After the Fifth Circuit affirmed defendant’s sentence, the Supreme Court vacated and remanded for further consideration in light of U.S. v. Booker, 543 U.S. 220 (2005). On remand, the Fifth Circuit rejected defendant’s argument that he was sentenced under a guideline range greater than that authorized solely by the jury’s verdict. His base offense level of 34 was based on at least 15 but less than 50 kilograms of cocaine, and there was sufficient evidence from which the jury could determine that the net weight exceeded 15 kilograms. For example, one agent testified that the cocaine bricks that were recovered weighed 20.52 kilograms. However, the court did err by sentencing defendant under a mandatory guideline regime, and remand was necessary. The third prong of the plain-error test requires, under U.S. v. Mares, 402 F.3d 511 (5th Cir. 2005), that defendant show prejudice, i.e. evidence that the district court would have imposed a lesser sentence under an advisory guidelines system. Defendant satisfied this standard. He made a motion for a downward departure, to which the court responded, “To depart I would have to deviate from the imposition … of the Sentencing Guideline criminal history range.” After defendant’s allocution, the court said: “You finally made it to the big court. And the big court is governed by the Sentencing Guidelines. Nobody in this room can do anything for you.” The court then imposed the minimum sentence under the applicable guidelines. U.S. v. Cruz, 418 F.3d 481 (5th Cir. 2005).
5th Circuit says Fanfan error was not harmless. (120) In the 5th Circuit, Booker error is found where the district court applied the mandatory guidelines and enhanced a defendant’s sentence on the basis of facts neither admitted by him nor found by a jury beyond a reasonable doubt, in violation of the Sixth Amendment. See U.S. v. Villegas, 404 F.3d 355 (5th Cir. 2005). The circuit finds Fanfan error where the district court applied the mandatory guidelines to enhance a defendant’s sentence absent any Sixth Amendment error. See U.S. v. Martinez-Lugo, 411 F.3d 597 (5th Cir. 2005). The Fifth Circuit ruled that the Fanfan error committed here was not harmless. Defendant pled guilty to two firearms charges, one carrying a guideline range of 15-21 months and the other requiring a mandatory consecutive 60-month sentence. The district judge noted that the 75-months he was required to impose was “unfairly severe.” In response to counsel’s comment that the guidelines might be declared unconstitutional, the court stated, “in the exercise of my unfettered discretion, I would impose a 60-month sentence. That’s an alternative and it’s only in the event the guidelines are declared unconstitutional. In total.” The Fanfan error was prejudicial to defendant, because the mandatory nature of the guidelines at the time defendant was sentence forced the district court impose at least the minimum 15-month term for count 1, in addition to the statutorily required 60-month consecutive sentence on count 2. U.S. v. Walters, 418 F.3d 461 (5th Cir. 2005).
5th Circuit says Fanfan error is not structural error warranting presumption of prejudice. (120) Defendant argued for the first time on appeal that his sentence should be vacated because it was imposed pursuant to a mandatory application of the Sentencing Guidelines. Although he claimed a Booker error, defendant’s sentence was enhanced based only on the amount of marijuana with which he was charged and found guilty by the jury. Technically, this was a Fanfan error, not a Booker error. Defendant claimed that the court’s application of the guidelines as mandatory, notwithstanding the absence of a Booker error, was a structural error, and therefore he was not required to show that the error affected his substantial rights. The Fifth Circuit found that the mandatory application of the guidelines was not structural error warranting a presumption of prejudice. There was no reason to distinguish this case because it involved a Fanfan error rather than a Booker error. Defendant did not meet his burden of showing a reasonable probability that, but for the error, the outcome of the sentencing would be different. The court sua sponte reduced defendant’s total offense level for the estimated weight of the wrappings of the drugs and also gave him a minor role reduction, imposing the minimum guideline sentence. This sentence exceeded the statutory minimum by only three months. The record offered no basis for inferring that, had the court known the guidelines were advisory, it would have reduced the sentence further within this narrow three-month range. U.S. v. Martinez-Lugo, 411 F.3d 597 (5th Cir. 2005).
5th Circuit holds that due process did not bar court on resentencing from imposing sentence greater than authorized by jury verdict. (120) The Supreme Court remanded defendant’s case for further consideration in light of U.S. v. Booker, 543 U.S. 220 (2005). Defendant argued that if the district court, on remand, denied his motion for a new trial, the due process clause barred the district court, on resentencing, from imposing a sentence greater than that authorized by the jury verdict. The Fifth Circuit disagreed. If the district court does not grant a new trial, resentencing should be pursuant to Justice Breyer’s opinion in U.S. v. Booker, 543 U.S. 220 (2005). Defendant and his counsel will be present and have an opportunity to speak under Rule 32(4)(A). The district court may, should it deem it appropriate, reconsider its determinations that defendant was a leader and/or obstructed justice, as well as its drug quantity determinations, and it shall evaluate the ultimate sentencing effect of any and all such determinations under an advisory, non-mandatory guidelines system. U.S. v. Scroggins, 411 F.3d 572 (5th Cir. 2005).
5th Circuit holds that government could not establish that Booker error was harmless. (120) On defendant’s appeal of his sentence, the Fifth Circuit held that Blakely v. Washington, 542 U.S. 296 (2004) did not apply to the guidelines, and affirmed defendant’s sentence. U.S. v. Pineiro, 377 F.3d 464 (5th Cir. 2004). The Supreme Court remanded for further consideration in light of U.S. v. Booker, 543 U.S. 220 (2005). The Fifth Circuit held that the government could not establish that the Sixth Amendment Booker error was harmless, and remanded for resentencing. Harmless error analysis applies to preserved Sixth Amendment Booker claims. Defendant preserved his Booker claim by raising an Apprendi-based objection to the PSR’s drug-quantity calculations. An error is deemed harmless if it did not affect the outcome of the district court proceeding. The government did not meet its burden of showing that the error was harmless. The judge’s statement that he knew of no reason to depart and thus would adhere to the guidelines did not suggest that under an advisory scheme he would know of no reason to depart. The fact that the judge never said defendant’s guideline sentence was too high in light of his offense was insufficient to show the preserved error was harmless. The judge’s silence as to whether or not he would have imposed a different sentence under an advisory regime did not satisfy this burden. U.S. v. Pineiro, 410 F.3d 282 (5th Cir. 2005).
5th Circuit holds that unpreserved Booker error did not constitute plain error. (120) Defendant argued for the first time on appeal that the district court violated Booker when it applied certain enhancements and increased his sentence based on an amount of loss not found by the jury nor admitted by him. The Fifth Circuit held that defendant could not meet the third prong of the plain error test – he could not demonstrate the error affected his substantial rights. The record did not contain anything to reflect what the district court would have done had it sentenced defendant under an advisory guideline regime. The court made no remarks on the record to indicate it felt constrained by the guidelines. U.S. v. Akpan, 407 F.3d 360 (5th Cir. 2005).
5th Circuit says defendant who failed to provide sentencing transcript did not establish prejudice. (120) Defendant argued that a two-level obstruction of justice increase was error under Booker because the jury was never presented with the question of whether he obstructed justice. The Fifth Circuit agreed that imposing this enhancement under a mandatory guideline regime was error under the Sixth Amendment. To meet the plain error test, the defendant was required to show a reasonable probability that, but for the error, the result of the proceeding would have been different. Although defendant claimed the court made certain statements at sentencing supporting this claim, he failed to include, in the record on appeal, the transcript of that hearing. As a result, even if the alleged quoted statement constituted a sufficient basis for defendant to demonstrate prejudice, it was not in the record on appeal and thus could not form the basis for a finding of prejudice. Therefore, the Fifth Circuit ruled that defendant failed to carry his burden as to the plain error test. U.S. v. Holmes, 406 F.3d 337 (5th Cir. 2005).
5th Circuit rules defendant failed to show Booker error affected his substantial rights. (120) Defendant argued that it was plain error for the district court to enhance his sentence using facts not found by a jury in violation of his Sixth Amendment rights. Since the error was the district court’s use of extra verdict enhancements to reach a sentence under guidelines that the judge believed to be mandatory, the question was whether defendant demonstrated that the sentencing judge would have reached a different result had it sentenced defendant under an advisory scheme rather than a mandatory one. The Fifth Circuit ruled that defendant did not meet this burden. He pointed to nothing in the record indicating that the sentencing judge would have reached a different conclusion under an advisory scheme. Defendant’s mere assertion that the result would likely have been different had the judge been sentencing under the post-Booker advisory regime was insufficient. U.S. v. Bringier, 405 F.3d 310 (5th Cir. 2005).
5th Circuit rules that defendant must show Booker error affected sentence to meet plain error test. (120) In its first sentencing decision since the Supreme Court decided U.S. v. Booker, 543 U.S. 220 (2005), the Fifth Circuit outlined the standard of review for unpreserved Booker claims. The first prong of the plain error test was satisfied here – under the mandatory guidelines system in place at sentencing, defendant’s sentence was enhanced based on judicial findings that went beyond the facts admitted by the defendant or found by the jury. The error was plain, since it was clear or obvious under current law. The third prong, which requires that an error affect substantial rights, is met when the defendant demonstrates that the sentencing judge would have reached a significantly different result if it had sentenced under an advisory scheme rather than a mandatory one. See U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005). The panel rejected the approach of some circuits that remand all cases for resentencing regardless of whether the Booker error was preserved in the trial court. Defendant could not meet that standard here – there was no indication in the record that suggested that the court would have reached a different conclusion under an advisory guideline system. U.S. v. Mares, 402 F.3d 511 (5th Cir. 2005).
5th Circuit upholds cross-reference to second-degree, murder, rather than involuntary manslaughter, guideline. (120) Police pursued defendant’s truck as it left a local bar. After the truck stopped in a field, shots were fired at the police car, and an officer was killed. Defendant was convicted of possessing firearms and ammunition while subject to a domestic restraining order. He argued that the district court improperly applied U.S.S.G. § 2K2.1(c)(1)(B)’s cross-reference provision when it used the guideline for second degree murder (§ 2A1.2) rather than the guideline for involuntary manslaughter (§ 2A1.4). Based on the factual findings made by the district court at sentencing (which defendant did not argue were clearly erroneous), the Fifth Circuit ruled that the district court did not err in applying the second-degree murder guideline. By intentionally firing his gun at the police officer’s cruiser, which defendant likely knew to be occupied, defendant displayed the requisite extreme recklessness and disregard for human life that constitutes malice under federal law sufficient for a finding of second-degree murder. The district court’s use of a lower standard of proof than beyond a reasonable doubt did not violate defendant’s Fifth Amendment rights. The fact that defendant was acquitted of capital murder in state court did not mean that he did not commit second-degree murder under federal law. U.S. v. Hicks, 389 F.3d 514 (5th Cir. 2004).
5th Circuit holds that § 924(c) enhancement does not require jury finding. (120) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court found that Apprendi v. New Jersey, 530 U.S. 466 (2000) barred an enhancement under § 924(c) because the jury was not asked to find that defendant had committed three previous violent felonies or serious drug crimes. The Fifth Circuit held that the armed career criminal enhancement in § 924(c) does not require a jury finding. Because §924(c)(1) does not create a separate offense, but is merely a sentence enhancement provision, neither the statute nor the Constitution requires a jury finding on the existence of the three previous felony convictions required for enhancement. U.S. v. Affleck, 861 F.2d 97 (5th Cir. 1988). Apprendi does not mandate a different approach, since it explicitly excepted enhancements based upon prior convictions. U.S. v. Stone, 306 F.3d 241 (5th Cir. 2002).
5th Circuit holds that prior felony conviction need not be charged in indictment. (120) Defendant was convicted of illegally reentering the U.S. after deportation, in violation of 8 U.S.C. § 1326(a)(b)(2). He argued that a prior felony conviction that resulted in his increased sentence was an offense element that should have been charged in the indictment. He acknowledged that his argument was foreclosed by the Supreme Court’s decision in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), but sought to preserve the issue for Supreme Court review in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court in Apprendi, while acknowledging that Almendarez-Torres may be logically inconsistent with its opinion, nonetheless chose not to overrule it. Accordingly, the Fifth Circuit found itself bound by Almendarez-Torres. U.S. v. Reyes-Maya, 305 F.3d 362 (5th Cir. 2002).
5th Circuit holds that overwhelming evidence supported sentence in excess of default statutory maximum. (120) The district court found that defendant was responsible for 10 kilograms of crack, and sentenced him to 25 years and four months in prison. In U.S. v. Randle, 259 F.3d 319 (5th Cir. 2001), the Fifth Circuit ordered that defendant be resentenced, following circuit precedent holding that, under plain error review, resentencing is required where the government had failed to allege drug quantity in the indictment or submit the issue to the jury. However, after the Supreme Court decided U.S. v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002), the Fifth Circuit reconsidered the case. Because there was overwhelming and incontrovertible evidence that defendant was responsible for much more than five grams of crack (the amount necessary to support a 40-year sentence), the Fifth Circuit found that it was unnecessary to correct the Apprendi error. Defendant was part of a large drug-trafficking conspiracy. Co-conspirators testified that defendant was one of the main suppliers of crack in town, and that he provided crack to the mid-level members, who, in turn, supplied crack for individual street-level dealers. The conspiracy spanned more than seven years. Considering the overwhelming evidence of drug quantity, the failure of the indictment and jury charge to include quantity did not seriously affect the integrity, fairness, or public reputation of the proceedings. U.S. v. Randle, 304 F.3d 373 (5th Cir. 2002).
5th Circuit holds that Apprendi applies to issue of death or bodily injury from drug offense. (120) Under 21 U.S.C. § 841(b)(1)(C), the statutory maximum for an offense involving an unspecified amount of drugs is 20 years in prison. However, § 841(b)(1)(C) provides that “if death or serious bodily injury results from the use of such substance [the defendant] shall be sentenced to a term of imprisonment of not less than twenty years or more than life.” The Fifth Circuit concluded that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), whether death or bodily injury has resulted from a drug offense is a fact that must be proved beyond a reasonable doubt to the finder of fact. Here, the government argued that the absence of cause of death from the indictment was the result of defendants’ own motion to strike and so any such violation of Apprendi was invited error. The Fifth Circuit agreed. The cause of death facts were alleged in the indictment under several counts, but the defendants successfully moved to have these allegations stricken from the indictment and kept out of evidence on the grounds that they were merely sentencing factors and not properly included in the indictment or the jury charge. Defendants clearly induced the erroneous omission. No manifest injustice would flow from the refusal to correct the invited Apprendi error. U.S. v. Solis, 299 F.3d 420 (5th Cir. 2002).
5th Circuit, en banc, finds correction of Apprendi error unnecessary where sufficient evidence linked defendants to drugs. (120) In U.S. v. Longoria, 259 F.3d 363 (5th Cir. 2001), and U.S. v. Gonzalez, 259 F.3d 355 (5th Cir. 2001), Fifth Circuit panels determined that the imposition of sentences exceeding the statutory maximum for offenses involving unspecified drug quantities was a “jurisdictional” error. Both panels further held, without considering the evidence of drug quantity, that it was proper to remand for resentencing despite the defendants’ failures to object in the district court. After the Fifth Circuit granted rehearing en banc and consolidated both cases, the Supreme Court decided U.S. v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002), which rejected the notion that an Apprendi error stemming from the absence of drug quantity in an indictment is “jurisdictional.” Cotton also made clear that it is proper to assess the evidence of drug quantity in such cases for the purpose of determining whether the error seriously affects the integrity, fairness, or public reputation of judicial proceedings. On rehearing en banc of Longoria and Gonzalez, the Fifth Circuit applied the plain error analysis as outlined in Cotton, and found sufficient evidence linking defendants to the 232.69 kilograms of marijuana seized by police to support defendants’ sentences under § 841(b)(1)(B). Thus, no remand for correction of their sentences was necessary. U.S. v. Longoria, 298 F.3d 367 (5th Cir. 2002) (en banc).
5th Circuit reaffirms that discharge of weapon is sentencing factor, not element of offense. (120) Defendant was convicted of possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (A). The district court enhanced defendant’s sentence because he discharged the weapon. Defendant contended that discharging the firearm was a separate offense from using and carrying a firearm, and should have been submitted to the jury. However, in U.S. v. Barton, 257 F.3d 433 (5th Cir. 2001), the Fifth Circuit rejected this argument. The court held that “[i]n light of the language, structure, context, and legislative history of § 924(c)(1)(A), we join the vast majority of circuits that have reviewed this or a similar issue to conclude that subsection (i), (ii) and (iii) set forth sentencing factors, not separate elements of different offenses.” Therefore, there was no error here. U.S. v. Smith, 296 F.3d 344 (5th Cir. 2002).
5th Circuit finds Apprendi error harmless where jury necessarily found over fifty grams of crack. (120) Although the instruction on the conspiracy charge did not explicitly inform the jury that they had to determine a specific amount, it did require them to find that each defendant agreed to possess “with intent to distribute cocaine base, ‘crack,’ as charged in the indictment.” The indictment stated that each defendant possessed with intent to distribute “over fifty (50) grams of cocaine base or ‘crack. ‘“ The Fifth Circuit held that because of the reference to the indictment, the jury necessarily found the defendants guilty of conspiring to possess with intent to distribute “over fifty (50) grams of cocaine base.” This satisfied the requirement of Apprendi v. New Jersey, 530 U.S. 466 (2000) for the jury to find the facts underlying the increased sentence. U.S. v. Green, 293 F.3d 886 (5th Cir. 2002).
5th Circuit finds no Apprendi error where sentence was less than statutory maximum. (120) Because drug quantity was not alleged in the indictment or decided by the jury, defendant could not be sentenced to more than the 20-year maximum provided by § 841(b)(1)(C). Apprendi v. New Jersey, 530 U.S. 466 (2000). He argued that the drug quantities provided by the Drug Table in USSG § 2D1.1(c) correspond to the drug quantities provided by 21 U.S.C. § 841(b)(1)(A)-(C). Thus, he contended that the district court only had the discretion to determine his base offense level within the range allowed by § 2D1.1(c)(8)-(14), and the highest base offense level he could have received was 24, which, with his criminal history category, provided a sentencing range of 100-125 months, much less than the actual sentence imposed. However, in U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000), the Fifth Circuit held that Apprendi only applies when the defendant is sentenced above the statutory maximum, and has no effect on the district court’s determination of drug quantity under § 2D1.1(c). Based on Doggett, the Fifth Circuit found no error in the district court’s application of § 2D1.1(c)(1) because defendant was not sentenced in excess of 20 years under § 841(b)(1)(C). U.S. v. McWaine, 290 F.3d 269 (5th Cir. 2002).
5th Circuit holds that Apprendi does not bar consecutive sentences. (120) Defendant argued that the district court’s use of USSG § 5G1.2(d) violated Apprendi because running defendant’s sentences consecutively, rather than concurrently, effectively increased the penalty to which he was subject based solely on facts determined by the judge and not charged to the jury. The Fifth Circuit disagreed. There is no constitutional right to concurrent, rather than consecutive sentences. The vice in Apprendi was the imposition of a sentence on a single count in excess of the statutory maximum for that count. See U.S. v. White, 240 F.3d 127 (2d Cir. 2001). U.S. v. McWaine, 290 F.3d 269 (5th Cir. 2002).
5th Circuit rules jury verdict did not become ambiguous when court rejected one drug quantity finding. (120) Although the jury specifically attributed more than one kilogram of heroin and more than five kilograms of cocaine to each defendant, the district court explicitly refused to consider the jury’s finding on cocaine in determining defendants’ sentences. Defendants argued that the district court effectively granted a motion for judgment of acquittal with respect to the cocaine component of the conspiracy and thus rendered the jury’s verdict on the alleged multi-drug conspiracy “ambiguous.” Under this theory, the court would have been required to sentence defendants within the statutory maximum for the drug carrying the least severe penalty, in this case cocaine. The Fifth Circuit found that jury verdict was not ambiguous and did not become ambiguous when the court disregarded the jury’s finding on the quantity of cocaine attributable to the conspiracy. The jury verdict left no doubt that it found a conspiracy with respect to both cocaine and heroin. Although the court may have implicitly concluded that the jury’s findings on the amount of cocaine were not supported by the evidence, such a conclusion did not render ambiguous the jury’s findings on the amount of heroin attributable to the conspiracy. The court properly sentenced the defendants based on the jury’s finding that the conspiracy involved at least one kilogram of heroin. U.S. v. Carbajal, 290 F.3d 277 (5th Cir. 2002).
5th Circuit finds no Apprendi violation where judicial finding did not increase sentence beyond statutory maximum. (120) Defendant received a life sentence for operating a continuing criminal enterprise (CCE) following a judicial determination that 122,081 kilograms of marijuana were attributable to him. He argued that his indictment failed to sufficiently allege drug quantity under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Fifth Circuit found no Apprendi violation because the district court’s drug quantity findings did not increase defendant’s sentence of imprisonment beyond the statutory maximum. A fact used in sentencing that does not increase a penalty beyond the statutory maximum need not be alleged in the indictment. The CCE statute authorizes imprisonment for life. See 21 U.S.C. § 848(a). U.S. v. Moreno, 289 F.3d 371 (5th Cir. 2002).
5th Circuit holds that failure to instruct jury to make drug quantity finding was harmless error. (120) The indictment stated the amount of crack cocaine involved in each count, but the jury instructions did not include any information on drug quantity. Because defendant did not object to the court’s failure to instruct the jury on drug quantity, the Fifth Circuit reviewed for plain error. A jury instruction that omits an element of the offense is subject to harmless error analysis. To determine harmlessness, the court must decide whether the record contained evidence that could rationally lead to a contrary finding with respect to the omitted evidence., i.e. the amount of crack attributed to defendant. The record contained undisputed evidence that defendant was responsible for the sale of at least 50 grams of crack cocaine. One dealer testified that during the conspiracy he sold 52 grams of crack that he had obtained from defendant. Another testified that he sold defendant $800 worth of crack and saw defendant purchase about 127 grams of crack. The Fifth Circuit concluded that the court’s failure to instruct the jury that it must find a specific drug quantity beyond a reasonable doubt was harmless error. U.S. v. Peters, 283 F.3d 300 (5th Cir. 2002).
5th Circuit upholds indictment that specified “more than 50 kilograms” but no upper range. (120) Although the failure to cite any quantity of drugs in an indictment subjects a defendant only to the default penalty of 21 U.S.C. § 841(b)(1)(D) under Apprendi, the Fifth Circuit has held that Apprendi is satisfied when an indictment alleges a range of drug quantity rather than a specific amount. See U.S. v. DeLeon, 247 F.3d 593 (5th Cir. 2001). In this case, the government charged defendant with possessing or conspiring to possess “more than 50 kilograms” of a marijuana mixture, and identified § 841(b)(1)(C) as the statute governing the permissible range of penalties. The Fifth Circuit held that the indictment was sufficient to sentence defendant under § 841(b)(1)(C), rejecting defendant’s claim that the five-year maximum default penalty in § 841(b)(1)(D) applied. The indictment’s statement that “more than 50 kilograms” was involved made it clear that § 841(b)(1)(D), which applies only to less than 50 kilograms of marijuana, was not applicable. Section 841(b)(1)(C) governs amounts of marijuana except those specified in subsections (A) (over 1000 kilograms), (B) (over 100 kilograms) and (D) less than 50 kilograms. It was difficult to image how a defendant could construe the indictment as meaning other than he had been indicted for possession with intent to distribute more than 50 kilograms but less than 100 kilograms. The district court properly sentenced defendant to 70 months in prison, which was within the maximum 20 years’ imprisonment allowed under § 841(b)(1)(C). U.S. v. Moreci, 283 F.3d 293 (5th Cir. 2002).
5th Circuit says due process limit on sentence does not affect term of supervised release after revocation. (120) In U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000), the Fifth Circuit held that defendants charged with unspecified drug quantities could only be sentenced using 21 U.S.C. § 841(b)(1)(C). Because that section authorizes no more than three years’ supervised release, defendant argued that it was improper for the district court to sentence her to a four-year term after her original supervised release term was revoked. The Fifth Circuit found this argument unavailing, because Doggett was not the law when defendant was convicted and sentenced and she never challenged the language of her indictment or the drug quantity used in calculating her original sentence. “She may not now use her new term of supervised release as a vehicle to do so.” The plain language of 18 U.S.C. § 3583(h) directs courts to look to the “statute for the offense that resulted in the original term of supervised release.” Because defendant was sentenced under § 841(b)(1)(B), the maximum term of supervised release the court could have imposed was five years less the nine months of incarceration imposed on revocation, so the four year term of supervised release was proper. U.S. v. Moody, 277 F.3d 719 (5th Cir. 2001).
5th Circuit suggests Apprendi requires jurisdictional elements to be proved beyond a reasonable doubt. (120) In a footnote, the Fifth Circuit noted that U.S. v. Bell, 993 F.2d 427 (5th Cir. 1993) held that a preponderance of the evidence standard applies to the jurisdictional elements in two statutes, the Assimilative Crimes Act, 18 U.S.C. § 13, and the federal aggravated sexual abuse statute, 18 U.S.C. § 2241(c). Both statutes, like the assault statute in the present case, 18 U.S.C. § 113(a), require that the offenses occur “within the special maritime and territorial jurisdiction of the United States.” The panel in this case questioned Bell’s holding, stating that it was doubtful, after Apprendi v. New Jersey, 530 U.S. 466 (2000), that a “mere preponderance of the evidence on this element could suffice to support a guilty verdict.” U.S. v. Perrien, 274 F.3d 936 (5th Cir. 2001).
5th Circuit holds that failure to submit drug quantity to jury was not plain error. (120) Although the indictment charged defendant with conspiring to possess one kilogram or more of methamphetamine, the court did not instruct the jury on drug quantity. Defendants argued their 420-month sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Given the overwhelming evidence of drug quantity, the Fifth Circuit ruled that defendants failed to meet their plain error burden. Defendants did not dispute the extensive drug quantity evidence at trial, and the record convincingly showed that each defendant was involved in a conspiracy related to at least the amount of drugs specifically charged in the indictment. The jury had with it during deliberations a copy of the indictment setting forth the specific drug quantities that would support the sentences imposed. Moreover, the court instructed the jury that it must find each defendant agreed to commit the crime of distribution of the named drugs “as charged” in the indictment. There was no evidence that could rationally lead a jury to a conclusion that the quantity of drugs stated in the indictment was incorrect. U.S. v. Virgen-Moreno, 265 F.3d 276 (5th Cir. 2001).
5th Circuit says Almendarez-Torres still good law after Apprendi. (120) Section 1326(a) of Title 8 provides for a maximum sentence of two years’ imprisonment for illegally reentering the country after deportation. Section 1326(b)(2) increases the maximum punishment to 20 years if the defendant was deported after conviction for an aggravated felony. Defendant argued that § 1326(b) creates a separate offense and that an element of the separate offense is a prior aggravated felony. In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court rejected this argument. Defendant argued that the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) “cast serious doubt” on Almendarez-Torres’s validity. The Fifth Circuit agreed that Apprendi cast doubt on Almendarez-Torres, but found that because Apprendi did not overrule that decision, Almendarez-Torres still controlled. Therefore, defendant’s argument was foreclosed. U.S. v. Rodriguez-Montelongo, 263 F.3d 429 (5th Cir. 2001).
5th Circuit holds that Apprendi error was not harmless. (120) Based on its finding that defendant was responsible for ten kilograms of cocaine and possessed a dangerous weapon in connection with his drug offense, the district court sentenced defendant to more than 25 years, which exceeded the 240-month statutory maximum under § 841(b)(1)(C) for offenses involving an unspecified drug quantity. The Fifth Circuit affirmed, but the Supreme Court remanded for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Fifth Circuit ruled that the Apprendi error was not harmless, notwithstanding its belief that no reasonable jury could have found defendant responsible for less than 1.5 kilos of crack, the minimum amount necessary to support defendant’s sentence. The jury was not asked to make such a finding. Confronted with similar situations following Apprendi, this court has reversed the sentences and remanded for resentencing. See, e.g. U.S. v. Burton, 237 F.3d 490 (5th Cir. 2000); U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001); U.S. v. Thomas, 246 F.3d 438 (5th Cir. 2001).
5th Circuit upholds sentence based on judicial finding that death resulted from drug distribution. (120) Defendant’s friend, Taylor, had an adverse reaction to heroin defendant provided, and died. The cause of death was an “acute mixed drug reaction.” Taylor had used large amounts of cocaine as well as the heroin she took with defendant, and the combination killed her. A jury convicted defendant of possession with intent to distribute, but could not reach a verdict on whether death resulted from defendant’s distribution of heroin to Taylor. However, at sentencing, the district court found under § 2D1.1(a) that death had resulted from the use of heroin, which resulted in a base offense level of 43 and a life sentence. Because the jury was unable to find that Taylor’s death was a result of defendant’s distribution of heroin, he argued that the court’s sentence violated his right to a jury. The Fifth Circuit found this argument foreclosed by U.S. v. Watts, 519 U.S. 148 (1997), which held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as the conduct has been proved by a preponderance of the evidence.” The panel also rejected defendant’s claim that his 80-year sentence constituted cruel and unusual punishment. The Supreme Court has upheld a statute mandating a life sentence for possessing more than 650 grams of cocaine. U.S. v. Cathey, 259 F.3d 365 (5th Cir. 2001).
5th Circuit holds that bodily injury need not be alleged in indictment to support guideline increase. (120) Defendant received a § 2B3.1(b) (3)(A) increase for bodily injuries suffered by his car-jacking victim. Defendant argued that there was no evidence that the victim received any bodily injury and alternatively, that the enhancement was not applicable because the indictment did not allege any bodily injury. However, the PSR indicated that the car-jacking victim received an injury to her head described as a “knot,” in addition to cuts, scrapes and bruises. Furthermore, “a fact used in sentencing that does not increase a penalty beyond the statutory maximum need not be alleged in the indictment and prove[n] to a jury beyond a reasonable doubt.” U.S. v. Keith, 230 F.3d 784 (5th Cir. 2000). Here, bodily injury (as opposed to serious bodily injury) is not an element of the crime of carjacking under 18 U.S.C. § 2119, but rather a fact used in determining the appropriate sentence. Defendant’s 168-month sentence was below the 180-month statutory maximum applicable to 18 U.S.C. § 2119. Accordingly, the Fifth Circuit affirmed the enhancement. U.S. v. Jefferson, 258 F.3d 405 (5th Cir. 2001).
5th Circuit holds that failure to instruct jury on drug quantity was harmless error. (120) On remand from the Supreme Court, the Fifth Circuit considered whether defendant’s sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). There was no defect in the indictment. The indictment charged conspiracy to distribute 50 grams or more of crack. Under 21 U.S.C. § 841(b)(1)(A)(iii), the sentencing range for 50 grams or more of cocaine base is ten years to life. Defendant was sentenced to only 292 months. The government conceded that there was error as to the jury instructions, because the jury was not expressly directed to find beyond a reasonable doubt that the conspiracy involved 50 grams or more of crack. However, the error was harmless. The evidence presented at trial was sufficient to tie defendant individually to the conspiracy found by the jury. The quantities involved in the various transactions alleged to be part of the conspiracy, and found beyond a reasonable doubt by the jury, far exceeded the 50-gram threshold for application of § 841(b)(1)(A)(iii). There was no evidence at trial that would support excluding sufficient quantities to bring the quantity involved to less than 50 grams. In fact, defendants stipulated that the government seized more than 200 grams of crack. U.S. v. Clinton, 256 F.3d 311 (5th Cir. 2001).
5th Circuit holds that Apprendi error from failure to instruct jury on drug quantity was harmless. (120) Defendant’s 365-month sentences exceeded statutory maximum penalty for a marijuana offense under 21 U.S.C. § 841(b)(1)(C) and (D). While the indictment charged the amount of marijuana involved in the offense, the jury instructions failed to include the issue of quantity. Nonetheless, the Fifth Circuit found the Apprendi error was harmless, since the record contained no evidence that could rationally lead the jury to a conclusion contrary to the quantities of drugs stated in the indictment. Moreover, the jury had with it during deliberations a copy of the indictment setting forth the drug quantities that could support the sentences imposed by the district court. U.S. v. Delgado, 256 F.3d 264 (5th Cir. 2001).
5th Circuit says Apprendi error not harmless even though court could have imposed consecutive terms. (120) Because defendant’s five-year term of supervised release represented an enhanced penalty under § 841(b)(1)(B), but a quantity of drugs was not stated in the indictment or submitted to a jury for a finding beyond a reasonable doubt, the Fifth Circuit found plain error in defendant’s sentence. In addition, defendant’s 65-month sentence was erroneous under Apprendi v. New Jersey, 530 U.S. 466 (2000), even though defendant did not raise this issue on appeal. Because the government failed to state a quantity of drugs in the indictment and prove it beyond a reasonable doubt, defendant could not be sentenced to more than 60 months on each count pursuant to 21 U.S.C. § 841(b)(1)(D). Although the government argued that the error was harmless because the district court could have imposed consecutive rather than concurrent terms, the district court found concurrent terms of 65 months incarceration for both counts appropriate punishment. Because the district court has discretion to fashion a penalty that combines terms of imprisonment with periods of supervised release, the Fifth Circuit remanded for sentencing. U.S. v. Vasquez-Zamora, 253 F.3d 211 (5th Cir. 2001).
5th Circuit holds that Apprendi error did not meet fourth prong of plain error test. (120) Defendants’ sentences were imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The error was plain, even though the district court’s procedure comported with clear, controlling precedent at the time it ruled on defendants’ objection to the drug quantity calculation. The error affected defendants’ substantial rights, because they were sentenced to serve between 20-30 years of incarceration, considerably longer than the maximum sentences available pursuant to the jury determination under the federal drug statute as interpreted by Apprendi and its progeny. However, the Fifth Circuit elected not to correct the error, because it did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” The amount of drugs attributed to each defendant in the PSR had ample support in the trial record. It was highly unlikely that a jury on retrial, properly instructed post-Apprendi, considering the evidence available to the government, would find drug quantities attributable to each defendant to be different from the amounts attributed to each defendant in the PSRs. U.S. v. Miranda, 248 F.3d 434 (5th Cir. 2001).
5th Circuit exercises discretion to consider Apprendi issue even though not raised in appellate brief. (120) An appellant’s brief must contain the “appellant’s contentions and the reason for them, with citations to the authorities and parts of the record on which the appellant relies[.]” Fed. R. App. P. 28(a)(9)(A). Failure to satisfy the requirements of Rule 28 as to a particular issue ordinarily constitutes abandonment of the issue. However, this rule is a “prudential construct that requires the exercise of discretion.” In this case, the Fifth Circuit exercised its Rule 28 discretion to consider whether defendants’ sentences, imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), constituted plain error. First, Apprendi was decided after briefing and one of the defendants referred to the new decision in his post-argument brief. Thus, it was not completely accurate to characterize the issue as waived or abandoned. Second, defendants protested at trial and on appeal that their due process rights had been infringed by the district court’s procedure for determining drug quantity. The appellate court could not in good faith ignore Apprendi in a discussion of what process is due a criminal defendant who challenges a drug quantity determination. Finally, it was clear from the record that defendants were sentenced in violation of constitutional due process as interpreted by the Supreme Court in Apprendi. U.S. v. Miranda, 248 F.3d 434 (5th Cir. 2001).
5th Circuit says that indictment’s allegation of a drug-quantity range satisfied Apprendi. (120) Defendant argued for the first time on appeal that he was sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), since the indictment did not allege, and the jury did not make a finding, as to a specific drug quantity. Both counts of defendant’s indictment listed a relevant range of “more than 100 kilograms, but less than 1000 kilograms of marijuana,” as well as a cite to § 841(b)(1(B). The Fifth Circuit held that an indictment’s allegation of a drug-quantity range, as opposed to a precise drug quantity, is sufficient to satisfy Apprendi. Although the jury charge did not list the quantity of marijuana as an element of the offense, such an omission cannot be plain error where, as here, the defendant stipulated at trial that the substance seized was 469.47 kilograms of marijuana. U.S. v. DeLeon, 247 F.3d 593 (5th Cir. 2001).
5th Circuit holds that failure to instruct jury on drug quantity was harmless error. (120) Defendant argued that his sentence must be vacated in light of Apprendi v. New Jersey, 530 U.S. 466 (2000) because the jury’s verdict could not be construed as a finding that he conspired to distribute the quantity of drugs that would support his 25-year sentence. The Fifth Circuit agreed that the court’s failure to instruct the jury on drug quantity was error. See U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000); U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001). However, the error was harmless. The jury had with it during deliberations a copy of the indictment setting forth the specific quantities of drugs that would support the district court’s sentence. The district court explicitly instructed as part of the first conspiracy element that the jury must find that defendant agreed to commit the crime of distribution of the named drugs “as charged in the indictment.” Thus, implicit in the jury’s finding on the first element was a finding on the specific quantities charged in the indictment. There was no evidence that could rationally lead the jury to a conclusion that the quantity of drugs stated in the indictment was incorrect. U.S. v. Green, 246 F.3d 433 (5th Cir. 2001).
5th Circuit holds that failure to submit drug quantity to jury was harmless error. (120) Defendant argued that his convictions and sentences were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). Relying on its three opinions to date interpreting Apprendi, the Fifth Circuit disagreed. See U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001); U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000); U.S. v. Keith, 230 F.3d 784 (5th Cir. 2000). First, each of the counts on which defendant was convicted contained an express allegation of the type and quantity of controlled substance involved. There was no question that the type and quantity of drug substance was sufficiently stated in the indictment. The jury’s finding that defendant was guilty of a conspiracy to distribute and possess 50 grams or more of crack cocaine necessarily included a finding as to the quantity and type of drug involved in the conspiracy. However, the other counts submitted to the jury did not state the specific quantity of cocaine base involved. This was error. However, the error was harmless because the jury had the counts of indictments in the jury room during deliberations and there was no evidence that could rationally lead the jury to a conclusion that the quantity of drugs stated in the indictment was incorrect. U.S. v. Slaughter, 238 F.3d 580 (5th Cir. 2000).
5th Circuit holds that Apprendi did not render federal drug statutes unconstitutional on their face. (120) Defendant argued that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt) rendered the federal drug statutes under which he was convicted unconstitutional on their face. The Fifth Circuit disagreed. The statutory provisions at issue in Apprendi were statutes of the State of New Jersey and nothing in the majority opinion nor even in the concurring and dissenting opinions made reference in any way to the federal drug statutes under which defendant was convicted. U.S. v. Slaughter, 238 F.3d 580 (5th Cir. 2000).
5th Circuit reaffirms that aggravated felony not an element of the offense. (120) Defendant pled guilty to illegally reentering the country after deportation, in violation of 8 U.S.C. § 1326. He received an enhanced sentence because the deportation followed his conviction for an aggravated felony. See USSG § 2L1.2(b)(1)(A). At his guilty plea hearing, he was not informed that the “aggravated felony” provision of 8 U.S.C. § 1326(b)(2) was an essential element of his offense. Although this was consistent with the Supreme Court holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998), defendant wished to preserve the issue for further review based on a good-faith belief that the decision would soon be overturned. The Fifth Circuit found this argument without merit, given that in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the Supreme Court declined to overrule Almendarez-Torres. Since the Supreme Court has unequivocally spoken on this issue, there was no error in failing to inform defendant that the aggravated felony provision was an essential element of his sentencing. U.S. v. Dabeit, 231 F.3d 979 (5th Cir. 2000), abrogated on other grounds, U.S. v. Reyna, 358 F.3d 344 (5th Cir. 2004).
5th Circuit holds that Apprendi applies to drug quantity under § 841(b)(1). (120) In Apprendi v. New Jersey, 530, U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the Supreme Court held that any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. The sentencing provisions in 21 U.S.C. § 841 clearly call for a factual determination regarding the quantity of the controlled substance, and that factual determination significantly increases the maximum penalty from 20 years under § 841(b)(1)(C) to life imprisonment under § 841(b)(1)(A). Therefore, the Fifth Circuit held that if the government seeks enhanced penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt. Because no specified amount of drugs were charged in the indictment or submitted to the jury, the present defendants could only be sentenced using the statutory maximum in § 841(b)(1)(C) for the manufacture of any quantity of methamphetamine. Since the first defendant’s 235-month sentence fell short of this 20-year maximum, his claim failed. Apprendi does not prohibit the trial court from determining the amount of drugs for relevant conduct purposes under the Sentencing Guidelines. Because of a prior felony conviction, the second defendant’s statutory maximum under § 841(b)(1)(C) was 30 years. Since his two concurrent life sentences exceeded this limit, the panel remanded. U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000).
5th Circuit says mandatory minimum sentence may be based on non-jury drug finding. (120) In U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000) [see summary below], the Fifth Circuit held that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), overruled circuit precedent that treated drug quantity as a sentencing factor rather than as an element of the offense under § 841. However, Apprendi only applies to cases in which a sentence exceeds the statutory maximum that would apply without reference to drug quantity under § 841(b) (1)(C). Defendant received a mandatory minimum sentence of 20 years under § 841(a)(1)(A) based on the district court’s finding, by a preponderance of the evidence, that the offense involved more than 50 grams of cocaine base. Because 20 years does not exceed the statutory maximum sentence of 30 years under § 841(b)(1)(C), Apprendi did not appear to invalidate defendant’s sentence. However, defendant argued that because § 841(b)(1) (C) applies in the absence of an allegation and jury finding of drug quantity, the district court could not impose the mandatory minimum sentence of 20 years under § 841(b)(1)(A) based on a non-jury finding of drug quantity. The Fifth Circuit disagreed, ruling that defendant’s mandatory minimum sentence of 20 years under § 841(b)(1)(A) was proper because it did not exceed the 30-year maximum under § 841(b) (1)(C). U.S. v. Keith, 230 F.3d 784 (5th Cir. 2000).
5th Circuit reduces supervised release term in light of Apprendi. (120) Defendants argued for the first time on appeal that their terms of supervised release violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), which held that any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Three of the defendant received multiple concurrent terms of supervised release. The Fifth Circuit ruled that it would only find plain error in these concurrent terms only if the error actually resulted in a longer term of supervised release; i.e., it would only reduce overlong terms of supervised release down to what would be the longest term had supervised release been calculated in accordance with Apprendi. Defendants Thomas and Parker received five-year terms of supervised release for their respective crack convictions. The Fifth Circuit reduced these terms to the maximum term allowable by statute for crack offenses that do not require a drug quantity showing. For both defendants, this was three years. See 18 U.S.C. § 3583(b)(2); 21 U.S.C. § 841(b)(1)(C). Defendants Hodge and Meshack both received ten year terms of supervised release. In both cases, the maximum term of supervised release irrespective of drug amount—based on their prior offenses—was six years. See 21 U.S.C. § 841(b)(1)(C). U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001).
5th Circuit declines to correct possible Apprendi error where unchallenged concurrent sentence was longer. (120) Defendant argued that his ten-year sentence for marijuana possession violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). However, he did not challenge his concurrent 324-month sentence for conspiracy to possess crack cocaine. To show plain error, defendant had to show that the marijuana sentence affected his “substantial rights.” In light of his lengthier concurrent conspiracy sentence, the Fifth Circuit found that any Apprendi error did not affect defendant’s substantial rights. Moreover, even if defendant’s substantial rights were violated, an appellate court will correct plain error only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” That was not the case here, since defendant could show no meaningful benefit he would receive from vacating his sentence. However, the panel vacated a second defendant’s concurrent terms of life imprisonment because these sentences were longer than his unchallenged concurrent sentence of 360 months for a different count. U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001).
5th Circuit says Apprendi does not apply where drug quantity increases sentence within statutory range. (120) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Fifth Circuit ruled that defendant’s 168-month sentence for possession of crack cocaine did not violate Apprendi. The jury found beyond a reasonable doubt that defendant possessed crack cocaine in violation of 21 U.S.C. § 841(a)(1). The minimum statutory range for this offense was zero to 20 years. Since his 168-month sentence was within this range, defendant’s sentence was not enhanced beyond the statutory range based on a fact not contained in the indictment or presented to the jury. Apprendi does not apply to an enhancement that increases a sentence within the statutory range. “[T]he more limited reading of Apprendi is a more plausible reading of the case, and given the profound effect a broader rule would have on existing Supreme Court and Fifth Circuit precedent, we believe the limited reading of Apprendi is the more desirable one.” U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001).
5th Circuit assumes, based on government concession, that Apprendi applies to § 841. (120) Defendants appealed their convictions and sentences for a variety of drug charges under 21 U.S.C. § 841. After briefing was complete, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Fifth Circuit noted that this broad rule of constitutional law “calls into question our prior rule that drug amount is not an element of a § 841 case.” However, the panel found it unnecessary to reconcile “this apparent conflict” because the government conceded that Apprendi applied to 21 U.S.C. § 841. Thus, the panel would only address whether Apprendi mandated correction of defendants’ sentences. U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001).
5th Circuit upholds constitutionality of federal three-strikes law. (120) Defendant was convicted of various charges stemming from an armed bank robbery. The district court imposed a mandatory life sentence under 18 U.S.C. § 3559(c), commonly known as the “three strikes and you’re out” law. The Fifth Circuit rejected defendant’s constitutional challenges to the statute. The mandatory life sentence did not violate separation of powers by removing sentencing discretion from the court and vesting it with the prosecution. The power to fix sentences rests ultimately with the legislative, not the judicial branch of the government. Thus the mandatory nature of the punishment in § 3559 does not violate the doctrine of separation of powers. The statute also does not violate the ex post facto clause. The Supreme Court has held that recidivist statutes not unlike that at issue here do not violate the ex post facto clause. U.S. v. Rasco, 123 F.3d 222 (5th Cir. 1997).
5th Circuit reaffirms unconstitutionality of federal death penalty under 18 U.S.C. section 1111. (120) In U.S. v. Kaiser, 545 F.2d 467 (5th Cir. 1977), the 5th Circuit held that 18 U.S.C. section 1111 could not support a death sentence under Furman v. Georgia, 408 U.S. 238 (1972). Here, the 5th Circuit reaffirmed that the federal capital sentencing provision in section 1111 was unconstitutional. The court rejected the government’s contention that sections 1111 and 1114 in combination narrow the class of defendants eligible for the death penalty in a way that justifies the imposition of a more severe sentence, as required by Furman. Section 1114 was not enacted to narrow the range of crimes punishable by death but to make the murder of a federal officer a federal crime. Moreover, section 1111 does not supply many important requisites of a sentencing hearing in a capital case, such as standard of proof, rules of evidence and the accused’s privileges. These choices are for Congress to make, not federal judges acting ad hoc across the country. U.S. v. Woolard, 981 F.2d 756 (5th Cir. 1993).
5th Circuit upholds sentence based upon revised presentence report prepared after trial. (120) Defendant contended that he was penalized for having exercised his right to a trial based upon differences between the presentence report prepared at the time of his plea agreement, which was rejected by the district court, and the presentence report prepared after his trial. The initial presentence report characterized him as a minor participant and deducted points for acceptance of responsibility. The post-trial report characterized him as an average participant, recommended no reduction for acceptance of responsibility and added two points for obstruction of justice. The 5th Circuit rejected defendant’s argument as frivolous. Each of the changes in the presentence report was proper because it reflected testimony and evidence adduced at trial. The trial judge was familiar with defendant’s case, and his findings were not clearly erroneous. U.S. v. Walker, 960 F.2d 409 (5th Cir. 1992).
5th Circuit rejects due process and equal protection challenges to career offender guideline. (120) Defendant argued that the district court’s use of his 1965 conviction to classify him as a career offender violated due process and equal protection. The use of this conviction was required by guideline section 4A1.2(e)(1) because defendant was incarcerated for the 1965 offense during the 15-year period prior to the instant conviction. The 5th Circuit rejected both of these constitutional challenges. There was no due process violation because the Constitution does not require individualized sentencing. The district court’s consideration of past offenses occurring within 15 years of instant offense was rationally related to the goal of having dangerous criminals serve longer sentences. U.S. v. Guajardo, 950 F.2d 203 (5th Cir. 1991).
5th Circuit remands because court failed to apply rule of lenity to overlapping penalties. (120) Defendants contended that the 1988 version of 21 U.S.C. section 841(b)(1) was unconstitutionally vague because it provided two different penalties for the same offense. Subsection (A)(viii) provided for 10 years to life if the offense involved at least 100 grams of a mixture containing methamphetamine, while subsection (B)(viii) provided for imprisonment of only 5 to 40 years if the offense involved at least 100 grams of a mixture containing methamphetamine. The 5th Circuit ruled that the inconsistent penalties did not invalidate the section, but that the district court erred in failing to apply the rule of lenity. This directly affected one defendant’s sentence, raising his offense level as a career offender from 34 to 37. It also may have influenced the decision to sentence the other defendant at the top of his guideline range. On remand the court was also instructed to allow the government to point to evidence in the record that the 269 grams of methamphetamine seized was at least 37 percent pure. If so, there was at least 100 grams of pure methamphetamine, and the stricter penalty scheme would be triggered. U.S. v. Kinder, 946 F.2d 362 (5th Cir. 1991).
5th Circuit upholds constitutionality of guidelines. (120) Noting that the argument has been consistently rejected, the 5th Circuit rejected defendant’s “tired argument” that the guidelines are unconstitutional because they permit the district court to resolve factual disputes without a jury. U.S. v. Harris, 932 F.2d 1529 (5th Cir. 1991).
5th Circuit finds that guidelines § 1B1.2 does not deprive a defendant of right to effective assistance of counsel. (120) Defendant pled guilty to bank larceny, but the district court determined defendant’s base offense level by applying the section for Burglary of Other Structure, which has a higher base offense level than the section for Larceny, Embezzlement and Other Theft. Defendant argued that guidelines § 1B1.2 violated his 6th Amendment right to effective assistance of counsel, because it prevented defense counsel from predicting which specific guidelines section a judge will apply. Therefore, § 1B1.2 rendered defense counsel’s advice regarding possible sentences meaningless. The 5th Circuit rejected this argument, finding that the Constitution only requires that a defendant understand the maximum possible prison term and fine for the offense charged. The Constitution does not require that defense counsel be able to predict the sentence that a judge will impose. The 5th Circuit also rejected defendant’s argument that the district court violated Rule 11, Fed. R. Crim. P., by failing to ascertain that he understood that he could be sentenced under the guidelines for a greater offense than the one to which he pled guilty. U.S. v. White, 912 F.2d 754 (5th Cir. 1990).
5th Circuit finds that guidelines do not violate presentment clause. (120) The 5th Circuit rejected defendant’s argument that the guidelines violate the presentment clause, since the enabling legislation for the guidelines was presented to and signed by the president. U.S. v. Zapata-Alvarez, 911 F.2d 1025 (5th Cir. 1990).
5th Circuit holds that investigative role of probation officer does not violate separation of powers. (120) Defendant contended that the role of the probation officer in investigating convicted defendants and making recommendations regarding sentencing violated separation of powers principles. Defendant argued that the probation office is an arm of the courts, yet in recommending a sentence the probation officer takes on a prosecutorial function, particularly in defendant’s case, where the probation officer recommended that the court disregard a stipulation and base defendant’s sentence upon a larger quantity of drugs. The 5th Circuit rejected this argument finding that the fact that the probation officer recommended a higher quantity of drugs “demonstrates the probation officer’s independence of the prosecution and his obligation to recommend what he believes to be a correct sentence to the court.” U.S. v. Woods, 907 F.2d 1540 (5th Cir. 1990).
5th Circuit holds that guidelines did not impair 6th Amendment right to effective assistance of counsel. (120) Defendant argued that the guidelines unconstitutionally deprived him of his Sixth Amendment right to counsel because they did not permit him to make an accurate estimate of the sentence he would receive if he pled guilty. The 5th Circuit disagreed, holding that the guidelines make no changes in substantive law or prevent counsel from advising defendant what the law provides. The guidelines do not provide for a “mandatory minimum” but instead provide a structure to minimize disparate sentencing on like facts. Inability of counsel to accurately predict a sentence does not constitute ineffective assistance of counsel, and no provision of the guidelines prevented defendant’s counsel from investigating and determining defendant’s sentence exposures. U.S. v. Rivera, 898 F.2d 442 (5th Cir. 1990).
5th Circuit holds that drug guidelines do not violate equal protection. (120) The 5th Circuit held that because the drug guidelines do not invidiously discriminate, only a rational relation standard of review is warranted. It found that the drug guidelines which classify by quantity are reasonably related to the legitimate government interest of more severely punishing large volume drug dealers. U.S. v. Baker, 883 F.2d 13 (5th Cir. 1989).
6th Circuit says Begay is new substantive rule that applies retroactively. (120) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e). He later brought a motion under 18 U.S.C. § 2255, arguing that under Begay v. U.S., 553 U.S. 137 (2008), his Kentucky conviction for reckless homicide was not a violent felony. Begay held that the “otherwise” clause in the ACCA includes only convictions resembling the enumerated offenses, i.e., only convictions involving purposeful, violent and aggressive conduct. The Sixth Circuit agreed that defendant was entitled to relief, holding that Begay announced a new substantive rule that applied retroactively. Under Kentucky law, reckless homicide occurs when a person causes the death of another “with recklessness.” But a mens rea of recklessness does not qualify under the “use of physical force” subsection of the ACCA. Nor did defendant’s conviction qualify under the second subsection of §924(e)(2)(B) in light of Begay, because it involved only reckless conduct. Jones v. U.S., 689 F.3d 621 (6th Cir. 2012).
6th Circuit upholds Commission’s refusal to make amendment retroactive. (120) In 2001, defendant was sentenced as a career offender. In 2007, the Sentencing Commission changed the method for counting prior convictions in Amendment 709, but declined to make the Amendment retroactive. Had Amendment 709 been in effect when defendant was sentenced, he would not have been a career offender. Defendant moved for a sentence reduction under 18 U.S.C. § 3582(c) (2), requesting that the district court retroactively apply Amendment 709. The district court granted the reduction, finding that the Commission’s retroactivity decision was not binding. The Sixth Circuit ruled that the district court lacked the authority to resentence defendant. On remand, the district court again applied Amendment 709 retroactively. The district court found that the Commission’s retroactivity decision was arbitrary and capricious, that the Sentencing Reform Act (SRA) did not authorize the issuance of binding policy statements, and that the issuance of binding policy statements violated the doctrine of separation of powers. The Sixth Circuit again reversed, rejecting all of the court’s reasoning. The Sentencing Commission’s refusal to make the Amendment retroactive was statutorily and constitutionally valid. Moreover, the binding policy statements did not violate separation of powers principles. U.S. v. Horn, 679 F.3d 397 (6th Cir. 2012).
6th Circuit rejects constitutional challenge to violent felony enhancement under ACCA. (120) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Based on three prior violent felony convictions, the district court sentenced him under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Defendant argued that violating the ACCA is “a separate criminal offense,” and therefore, under the due process clause, the predicate felony convictions must be included in the indictment and proven beyond a reasonable double. The Sixth Circuit disagreed. It is well-established that the ACCA is a sentencing enhancement rather than a separate offense. See, e.g. Custis v. U.S., 511 U.S. 485 (1994). The Supreme Court, in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), held that when a statute constitutes a penalty provision, rather than a separate crime, the government need not include the provision in the indictment. The Supreme Court has uniformly excepted “the fact of a prior conviction” from its general rule that sentence-enhancing facts must be found by a jury and proved beyond a reasonable doubt. U.S. v. McMurray, 653 F.3d 367 (6th Cir. 2011).
6th Circuit upholds judicial fact-finding where resulting sentence was within statutory range. (120) Defendant was convicted of four counts arising from an armed bank robbery. During the robbery, defendant fired his shotgun at the assistant manager, hitting her in the head. The district court found that defendant’s actions constituted attempted first-degree murder, and departed upward to reach a sentence under the guideline for assault with intent to commit murder. See Note 5 to § 2B3.1. The Sixth Circuit rejected defendant’s claim that the district court’s fact-finding violated his Fifth Amendment due process rights and his Sixth Amendment right to a jury trial. Judges may find facts by a preponderance of the evidence so long as the resulting sentence does not increase the penalty for a crime beyond the prescribed statutory maximum allowed by the jury’s verdict. If the sentence imposed is within the statutorily prescribed range justified by the jury’s verdict, the possibility that the judicially found facts might also constitute another separate offense is not per se a basis for objection. U.S. v. Stewart, 628 F.3d 246 (6th Cir. 2010).
6th Circuit says defendant cannot appeal denial of retroactivity motion for “reasonableness.” (120) The district court refused to reduce defendant’s sentence based on his motion to apply a retroactive guideline amendment under 18 U.S.C. § 3582(c)(2) or the government’s Rule 35(b) motion. Defendant argued that the denial of the reduction was “unreasonable.” The 6th Circuit ruled that defendant could not appeal the denial of a sentence reduction based on Booker unreasonableness. See U.S. v. Parker, 543 F.3d 790 (6th Cir. 2008) (allegations of unreasonableness do not confer appellate jurisdiction over Rule 35(b) determinations). The Supreme Court’s decision in Dillon v. U.S., 130 S.Ct. 2683 (2010) that the Booker remedial opinion has no force in § 3582(c)(2) proceedings compels the conclusion that Booker’s other specific “remedial amendment” – its promulgation of unreasonableness review – does not apply to proceedings under § 3582(c)(2). U.S. v. Bowers, 615 F.3d 715 (6th Cir. 2010).
6th Circuit holds that “cocaine base” in § 841 means crack cocaine. (120) Defendant was convicted of possession with intent to distribute cocaine base and related charges. Defendant argued that because the jury found that his crime involved cocaine base, but did not find that it involved crack cocaine, the district court committed error under Apprendi v. New Jersey, 530 U.S. 466 (2000) when it imposed an enhanced penalty under 21 U.S.C. § 841(B) (1)(a)(iii). There is a circuit split on whether the definition of “cocaine base” in § 841 includes all forms of cocaine base, or whether it means “crack cocaine.” The Sixth Circuit agreed with the courts that have held that § 841 is ambiguous and that the phrase “cocaine base” in § 841 means crack cocaine. Accordingly, under Apprendi, before the enhanced penalties of § 841 can apply, the indictment must charge and the jury must find beyond a reasonable doubt that the defendant committed a crime involving crack cocaine. Nevertheless, there was no Apprendi violation here because the indictment clearly defined “cocaine base” as “crack cocaine,” and the verdict form referenced the indictment. Thus, the jury did find beyond a reasonable doubt that defendant possessed crack cocaine. U.S. v. Higgins, 557 F.3d 381 (6th Cir. 2009).
6th Circuit holds Booker was a “new rule”; not retroactive to sentences after Blakely. (120) Defendant was sentenced in 2002 to 188 months, the lowest available sentence under the Guidelines. In 2005, his 18 U.S.C. §2255 motion to vacate his sentence was denied, but the court granted a certificate of appealability on whether he was entitled to be resentenced in the wake of Booker. The Sixth Circuit held that Booker was a “new rule” that did not apply retroactively on collateral review to sentences imposed after Blakely v. Washington, 542 U.S. 296 (2004). The circuit had previously held that Booker was not retroactive back to Apprendi v. New Jersey, 530 U.S. 466 (2000). Although the argument that Blakely dictated Booker was considerably stronger, the panel still found that Booker was a new rule. The court noted that the Seventh Circuit in McReynolds v. U.S., 397 F.3d 479 (7th Cir. 2005) had also held that Booker was not retroactive back to Blakely, and declined to create a circuit split. U.S. v. Duncan, 552 F.3d 442 (6th Cir. 2009).
6th Circuit upholds sentence based on judge’s findings by preponderance of the evidence. (120) In 2002, defendants were convicted of drug conspiracy charges and sentenced to lengthy prison terms. After the Supreme Court’s decision in Booker, the case was remanded for resentencing. On remand, the district court reimposed identical sentences. Defendants argued that the district court violated their Sixth Amendment and due process rights by making factual findings, by a preponderance of the evidence, to determine their sentencing ranges. The Sixth Circuit noted that it has squarely rejected defendants’ contention that Booker or Blakely required all factual findings affecting a sentence’s severity to be made by a jury beyond a reasonable doubt. Defendants’ sentences did not exceed the maximum statutory penalty that could be imposed for this offense. The maximum statutory penalty that the court could impose was determined by the statute of conviction, rather than by a Guidelines range calculating using only jury findings. U.S. v. Sexton, 512 F.3d 326 (5th Cir. 2008).
6th Circuit reviews calculation of guideline range as part of review of procedural reasonableness of sentence. (120) In its first post-Gall case, the Sixth Circuit found that on appeal it still must ensure that the district court properly calculated the advisory guidelines range as part of its overall consideration of the § 3553(a) factors. In evaluating the district court’s calculation of the advisory guidelines range, the appellate court reviews the court’s factual findings for clear error and its legal conclusion de novo. Because the district court must properly calculate the advisory guidelines sentencing range as well as consider the § 3553(a) factors, appellate review of the district court’s guidelines range calculation is most properly viewed as part of the review of the procedural reasonableness of the sentence. A court cannot properly consider the § 3553(a) factors if it miscalculated the advisory guidelines range that it must consider together with the § 3553(a) factors. U.S. v. Lalonde, 509 F.3d 750 (6th Cir. 2007).
6th Circuit permits judge to find that child porn involved minors under 12 and sadistic conduct. (120) Defendant pled guilty to possession of child pornography. He argued that the district court erred when it found, by a preponderance of the evidence, that the child pornography possessed by defendant not only depicted minors under the age of 12 but also depicted sadistic or masochistic conduct. Defendant did not admit to either of these facts when he pled guilty to possession of child pornography. The Sixth Circuit found no error. Post-Booker, judicial fact-finding at sentencing is constitutional so long as the court appreciates that the guidelines are advisory, not binding. The findings were not clearly erroneous. The court viewed a representative sample of the images, including video images, before making its findings. In addition, the court had the benefit of the PSR prepared by a probation officer who also viewed a sample of the still and video images from defendant’s computer before recommending these enhancements. U.S. v. Geerken, 506 F.3d 461 (6th Cir. 2007).
6th Circuit reverses because court did not adequately state reasons for sentence. (120) Defendant was originally sentenced to the statutory maximum of 240 months in prison, which was within the then-mandatory guideline range of 210-262 months. The case was later remanded for resentencing in light of Booker. Defendant filed a sentencing memo discussing relevant § 3553(a) factors that he believed warranted a sentence below the guideline range. The judge, however, stated that the 240-month sentence was appropriate, and the fact that it coincided with the statutory maximum was “essentially happenstance.” The judge further found that the 240-month sentence was fair, “considering the additional factors contained within 18 U.S.C. § 3553(a).” The Sixth Circuit recognized that this statement of reasons was similar to the statement of reasons sanctioned by the Supreme Court in Rita, but nonetheless found the sentence was procedurally unreasonable. In Rita, the district court considered and rejected the defendant’s arguments for a lower sentence. Here, the court’s only mention of defendant’s arguments was the statement, “I certainly have received [the sentencing memo], read it and understand its presentations.” This conclusory statement left unclear whether the court adequately considered and rejected defendant’s arguments regarding proper application of the § 3553(a) factors. U.S. v. Thomas, 498 F.3d 336 (6th Cir. 2007).
6th Circuit reverses where district court presumed that defendant should be sentenced within guideline range. (120) In rejecting defendant’s request for a below-guideline sentence, the district court stated that the guidelines were “presumptively reasonable” under Sixth Circuit law, and found that the other factors were not sufficient to overcome this presumption. The Sixth Circuit reversed, holding that the court erred in applying the rebuttable presumption. Like many other circuits, the Sixth Circuit has chosen, for appellate review purposes, to credit a within-guideline sentence with a rebuttable presumption of substantive reasonableness. In Rita v. U.S., 127 S.Ct. 2456 (2007), the Supreme Court permitted the courts of appeals to apply a presumption of reasonableness to a within-guidelines sentence. However, it relied on the fact that by the time an appeals court is considering a within-guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. The appellate “reasonableness presumption” does not have an independent legal effect. If a sentencing judge presumes that the defendant should be sentenced within the applicable guideline range, it renders meaningless the fact that both the judge and the Sentencing Commission reached the same conclusion. U.S. v. Wilms, 495 F.3d 277 (6th Cir., 2007).
6th Circuit upholds use of juvenile adjudication as predicate violent felony under ACCA. (120) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 9224(e), based in part on its finding that his prior juvenile adjudication for aggravated robbery was a “violent felony.” The Sixth Circuit held that the use of the juvenile adjudication as a predicate offense under the ACCA did not violate due process or Apprendi. Congress has the power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant received all process that was due when convicted – for adults that includes the right to a jury trial; for juveniles, it does not. There was no indication that defendant was not given proper due process in his juvenile adjudication. U.S. v. Crowell, 493 F.3d 744 (6th Cir. 2007).
6th Circuit affirms where record showed court considered defendant’s sentencing argument. (120) Defendant attempted to bribe an IRS agent who was auditing his company’s income tax return. The district court rejected defendant’s request for a downward departure based on aberrant behavior, and his request for a sentence of home confinement. The court concluded that the most important § 3553(a) factors were the need for the sentence to reflect the seriousness of the offense, and to deter others. Thus, the court sentenced defendant to 12 months and one day. The Sixth Circuit ruled that the sentencing court made a sufficient record of its consideration of defendant’s sentencing arguments, and the guideline sentence was not unreasonable. As to procedural reasonableness, the court offered clear reasons for its sentence, articulated the various § 3553(a) factors, and then identified the two factors it found most relevant. The record showed that the judge understood defendant’s family and business obligations, but did not believe they outweighed other § 3553(a) factors. After Rita, it would be for the sentencing court to explain why it rejected each of the defendant’s non-frivolous arguments for a below-guideline sentence. But the 12-month sentence, which fell within the applicable guideline range, was substantively reasonable. U.S. v. Liou, 491 F.3d 334 (6th Cir. 2007).
6th Circuit reviews impact of Rita. (120) After defendant appealed his sentence, the Supreme Court issued its decision in Rita v. U.S., 127 S.Ct. 2456 (2007). The Sixth Circuit outlined the effect of Rita on its post-Booker jurisprudence. Booker transformed the Sentencing Guidelines from a mandatory scheme to an advisory resource, and directed appellate courts to review sentences for reasonableness. The Sixth Circuit has applied a rebuttable presumption of reasonableness to sentences falling within the applicable guideline range. Rita clarified that appellate reasonableness review merely asks whether the trial court abused its discretion. Second, Rita reinforced the conclusion that reasonableness review requires the appellate court to inquire into both the length of the sentence, the factors evaluated and the procedure employed by the district court. Third, Rita demands that any “presumption” of substantive reasonableness is not a “presumption” as generally defined. The presumption is not binding, but merely reflects that by the time an appeals court is considering a within-guideline sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. Thus, today, as before Rita, regardless of whether the sentence falls within the guideline range, the appellate court will review the sentencing transcript to ensure (1) that the sentencing judge adequately considered the relevant § 3553(a) factors and clearly stated his reasons for imposing the chosen sentence, and (2) that the sentence is substantively reasonable. U.S. v. Liou, 491 F.3d 334 (6th Cir. 2007).
6th Circuit holds that cocaine sentence did not violate Apprendi. (120) Defendant challenged his sentence for possession with intent to distribute cocaine, noting that the jury did not determine the type and quantity of drugs he was found to possess. Although the indictment charged him with possessing nine kilograms of cocaine, the verdict form only required the jury to check off guilty or not guilty. Defendant argued that his sentence violated Apprendi, but the Sixth Circuit noted that Apprendi does not bar sentences in excess of a particular guidelines range. Rather, so long as a sentence does not exceed the maximum penalty authorized by statute, there is no Apprendi violation. Because defendant was sentenced below the 20-year maximum authorized under 21 U.S.C. § 841(b)(1)(C), there was no Apprendi violation. U.S. v. Franco, 484 F.3d 347 (6th Cir. 2007).
6th Circuit says defendant’s version of prior offense did not warrant below-guidelines sentence. (120) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court found that defendant’s prior conviction for sexual abuse involving a minor was a “crime of violence” under § 2L1.2(b)(1)(A)(ii) and added 16 levels to his offense level. Defendant introduced evidence that the sexual conduct that led to his prior conviction was consensual, and he argued that the court should impose a sentence below the guideline range for that reason. The district court rejected that argument and instead imposed a sentence at the low end of the guideline range. Applying a presumption of reasonableness to sentences within the guideline range, the Sixth Circuit upheld the sentence, finding that the district court was under no obligation to accept defendant’s version of events or, if it did believe defendant, to impose a sentence below the guidelines range. U.S. v. Trejo-Martinez, 481 F.3d 409 (6th Cir. 2007).
6th Circuit holds that raising sentencing issue on direct appeal did not permit application of Booker to conviction that was final before Booker. (120) Defendant was convicted in 1992 of drug conspiracy charges. In 2000, the district court vacated defendant’s conviction and ordered that he be resentenced. He was resentenced in June 2001. He later moved for relief under § 2255 arguing that his June 2001 sentence was unconstitutional because of the holdings of Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005). The district court denied the motion, holding that Booker was not retroactive and thus did not apply to defendant because his resentencing became final before Blakely was decided. Defendant argued that Booker applied retroactively to his case because of the Supreme Court’s holding in Davis v. U.S., 417 U.S. 333 (1974). The Sixth Circuit disagreed. Other cases have suggested that Davis only permits a petitioner moving under § 2255 to relitigate substantive changes in the law. This court has never relied on Davis to hold that a petitioner with a procedural claim, who raised that claim on direct appeal, and had the claim determined against him, was entitled to relief on a § 2255 motion after his direct appeal had become final because a change in the law vindicated the procedural claim. Lang v. U.S., 474 F.3d 348 (6th Cir. 2007).
6th Circuit holds that the right to be sentenced, post-Booker, under the advisory guideline regime is waivable. (120) Defendant explicitly agreed, in both his plea agreement and the plea colloquy, to have his sentence governed solely by the U.S. Sentencing Guidelines, notwithstanding Booker. Despite this agreement, he now claimed that his sentence was unreasonable because the district court failed to adequately consider the sentencing factors listed in 18 U.S.C. § 3553(a). The Sixth Circuit held that the right to be sentenced, post-Booker, under the advisory guideline regime, can be waived by a defendant. Defendants may well have strategic reasons for waiving their right to be sentenced under an advisory guideline scheme. The guidelines afford defendants a degree of predictability that the Booker discretionary scheme cannot. The waiver must be made “knowingly, intelligently, and with sufficient awareness of the relevant circumstances and likely consequences.” The proper focus remains on the terms of the plea agreement and the words exchanged during the plea colloquy. U.S. v. Magouirk, 468 F.3d 943 (6th Cir. 2006).
6th Circuit holds that the court’s failure to consider statutory sentencing factors was not reasonable. (120) The PSR recommended an advisory sentencing range of 27-33 months. At sentencing, defense counsel informed the court that the Probation Department was likely to recommend an additional two criminal history points, which would result in a sentencing range of 30-37 months. The court found that a 30-month sentence was appropriate, since defendant was at the top of the criminal history scored under the previous calculation and in the middle of the criminal history score under the current calculation. The Sixth Circuit held that the sentencing procedure used by the district court was not procedurally reasonable because the court failed to consider the statutory sentencing factors of 18 U.S.C. § 3553(a). Courts are required to consider the applicable guidelines sentencing range when arriving at a defendant’s sentence, but as only one factor of several laid out in § 3553(a). A sentence within the guidelines carries with it no implication that the court considered the § 3553(a) factors if it is not clear from the record. A district court’s failure to sufficiently consider those factors cannot be harmless. Judge Griffin dissented. U.S. v. Johnson, 467 F.3d 559 (6th Cir. 2006).
6th Circuit holds that court’s statement that sentence it was imposing was “reasonable” was not reversible error. (120) Defendant was convicted of domestic violence and kidnapping. He challenged his 108-month sentence on the ground that the district court described its objective as issuing a sentence that was “reasonable.” Courts have noted that a district court’s job is not to impose a “reasonable sentence,” but “to impose a sentence sufficient, but not greater than necessary to comply with the purposes of section 3553(a)(2). “Reasonableness” represents the standard of appellate review. Nonetheless, the Sixth Circuit held that a district judge does not necessarily commit reversible error merely by saying that the sentence he wishes to impose is “reasonable.” Here, the district judge correctly calculated the guidelines’ sentencing range, thoroughly considered the § 3553(a) factors, and exercised his independent judgment in sentencing defendant. The judge’s use of the word “‘reasonable” in describing the sentence he wished to impose “did not eclipse his thorough application of the §3553(a) factors and his exercise of independent judgment.” Resentencing was not required. U.S. v. Cruz, 461 F.3d 752 (6th Cir. 2006).
6th Circuit upholds use of preponderance of the evidence standard at sentencing. (120) Defendant argued that the district court erred when it engaged in judicial fact-finding using a preponderance of the evidence standard during his sentencing. The Sixth Circuit held that the district court committed no Fifth or Sixth Amendment violation when it used a preponderance of the evidence standard. Prior to Booker, the Sentencing Guidelines called for the use of a preponderance standard at sentencing to meet due process requirements and policy concerns. Following Booker, in U.S. v. Milan, 398 F.3d 445 (6th Cir. 2005), the court rejected a defendant’s Sixth Amendment challenge to his sentence. The rationale underpinning the holding was equally applicable to defendant’s Fifth Amendment challenge. U.S. v. Gates, 461 F.3d 703 (6th Cir. 2006).
6th Circuit holds that retroactive application of Booker did not violate due process. (120) Defendant pled guilty to bank robbery charges after the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004), and was sentenced after the Supreme Court decided U.S. v. Booker, 543 U.S. 220 (2005). The Sixth Circuit held that the retroactive application of Booker to defendant did not violate the ex post facto or due process clause. Contrary to defendant’s argument, the Supreme Court’s substitution of discretionary guidelines for mandatory ones was not “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Although the precise effect Blakely would have on the guidelines was not known, Blakely was decided before defendant committed the robberies here. It would not have been “a leap of logic to expect the Supreme Court to apply Blakely to the guidelines in some manner.” The remedy was not “indefensible.” A court’s failure to cite case law in support of its crafted remedy was a far cry from showing that its remedy was indefensible under prior precedent. Booker made the guidelines advisory. These recommendations did not raise the same constitutional infirmities as binding judicial interpretations. While the court is required to consider the guideline range, after they are consulted, the critical inquiry is whether a sentence is “sufficient, but not greater than necessary” to comply with the purposes set forth in 18 U.S.C. § 3553(a). Since there is no guarantee that the calculated guideline range would have a critical effect on defendant’s sentence, “it [was] difficult to see” how the protection against due process was violated. U.S. v. Barton, 455 F.3d 649 (6th Cir. 2006).
6th Circuit holds that disparities between sentences in fast-track and non-fast-track jurisdictions did not make sentences unreasonable. (120) Defendant pled guilty to being in the country illegally after deportation. He argued that fast-track sentencing procedures that exist in certain districts for illegal reentry cases, which could have resulted in him receiving a four-level downward departure, should be applied in his case. He also claimed that under an advisory guidelines regime, he should be sentenced below the guidelines range in order to avoid a sentencing disparity. The Sixth Circuit disagreed. The sentencing disparity is but one factor district courts must consider in determining an appropriate sentence. Further the Attorney General and the U.S. Attorney for the districts with fast-track have determined that the departure is necessary for a particular district court to function effectively. Such a disparity does not run counter to § 3553(a)’s instruction to avoid unnecessary sentencing disparities. U.S. v. Hernandez-Fierros, 453 F.3d 309 (6th Cir. 2006).
6th Circuit holds that section of sentencing statute mandating use of guidelines for child sex crimes should be excised. (120) Defendant pled guilty to distributing child pornography charges. Because he was convicted of a child sex crime, 18 U.S.C. § 3553(b)(2) specifies that the application of the Sentencing Guidelines is mandatory. In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the mandatory application of the Sentencing Guidelines in 18 U.S.C. § 3553(b)(1) was unconstitutional. The Sixth Circuit, agreeing with the Seventh and Tenth Circuits, held that the rationale of Booker applies equally to sentences imposed pursuant to 18 U.S.C. § 3553(b)(1) or § 3553(b)(2). Under the Booker rationale, subsection 3553(b)(2) must be considered to be excised. Both § 3553(b)(1) and (b)(2) require use of the applicable guideline range subject to slightly different departure provisions, and it was the required use of the guidelines that encountered constitutional objections. U.S. v. Shepherd, 453 F.3d 702 (6th Cir. 2006).
6th Circuit holds that mandatory application of guidelines was harmless error where court also made substantial upward departure. (120) Defendant was convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) and for being an Armed Career Criminal under § 924(e). The district court, believing that the guidelines were mandatory, sentenced defendant to 280 months’ imprisonment. The Sixth Circuit held that any error in the district court’s following of applicable law in effect at the time of sentencing was harmless. The panel was ‘“certain” the error did not affect the district court’s selection of the sentence imposed. Any possible harm from the error was nullified when the court exercised its discretion to grant a substantial upward departure that increased the sentence considerably above the guideline recommended range. The departure itself did not raise Booker problems, since it was based on defendant’s criminal history and, in any event, was a discretionary decision by the district court. U.S. v. Brown, 444 F.3d 519 (6th Cir. 2006).
6th Circuit holds that defendant waived right to challenge mandatory application of guidelines. (120) Defendant argued that his case should be remanded for resentencing because the district court sentenced him by applying the Sentencing Guidelines as mandatory rather than advisory. The Sixth Circuit ruled that because defendant waived his right to appeal his sentence, he could not seek a remand under Booker. In his plea agreement, defendant expressly waived all of his appellate and habeas rights except the right to appeal the denial of his motion to suppress and the right to appeal his sentence if it was inconsistent with the terms of the plea agreement. A voluntary waiver of appeal in a plea agreement precludes Booker review of the sentence. U.S. v. Bradley, 400 F.3d 459 (6th Cir. 2005). The fact that defendant did not, as the defendant did in Bradley, expressly agree to be sentencing under the guidelines was not important. U.S. v. Dillard, 438 F.3d 675 (6th Cir. 2006).
6th Circuit holds that career offender sentence was reasonable. (120) Defendant pled guilty to bank robbery. Considering the Sentencing Guidelines as advisory, the district court classified defendant as a career offender under §4B1.1 because he had two prior convictions for crimes of violence, and sentenced him to 180 months. The Sixth Circuit rejected defendant’s claim that the sentence was unreasonable under Booker. The district court articulated and explained its reasons for sentencing defendant to a term at the high end of the guidelines range. It explicitly considered many § 3553(a) factors. The court explained that it chose a sentence at the high end of the guidelines range because of defendant’s history of violent behavior, including three felony convictions by the time he was 19, continued problems with violence since being incarcerated, and pending charges for kidnapping, carjacking and armed robbery. The court also considered defendant’s needs under § 3553(a)(2) (D), stating that it would recommend him for a residential drug treatment problem. U.S. v. Richardson, 437 F.3d 550 (6th Cir. 2006).
6th Circuit holds that mandatory application of the guidelines was harmless error where court imposed statutory maximum and rejected request for leniency. (120) The district court erred by treating the Sentencing Guidelines as mandatory, and defendant preserved his claim of Booker error. Therefore, the Sixth Circuit reviewed for harmless error. In previous cases where the court sentenced a defendant as if the guidelines were mandatory, the only instances where the Sixth Circuit had found harmless error was where the court imposed an alternative, identical sentence. Defendant was not given an alternative sentence, but the panel still found the error harmless. The district court sentenced defendant to the statutory maximum of 120 months in prison, which was at the top of the 110-120 month guideline range. In so doing, the court ignored defendant’s presentation of mitigating factors, such as family status, and his pleas for lenience. The court’s dialog with defendant showed that it wanted to send a message to defendant with a tough sentence, the statutory maximum of 120 months. U.S. v. Alford, 436 F.3d 677 (6th Cir. 2006).
6th Circuit holds that defendant admitted possession of firearm for Booker purposes. (120) Defendant argued that the court engaged in impermissible judicial fact-finding when it increased his sentencing range four levels for possession of a weapon in connection with another felony offense. The Sixth Circuit ruled this determination was clearly supported by the facts to which defendant admitted, and therefore there was no Booker violation. In the plea agreement, defendant stipulated that he pointed his gun at the victim and fired it at him. Based on these facts, a determination that defendant’s conduct toward the victim constituted an aggravated assault was not clearly erroneous. U.S. v. Alford, 436 F.3d 677 (6th Cir. 2006).
6th Circuit holds that judge’s determination of whether prior convictions were crimes of violence or related did not violate Booker. (120) Defendant argued that the district court engaged in impermissible fact-finding in violation of Booker to determine that his prior convictions were crimes of violence. However, Booker only applies to “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.” Certain aspects of the character of prior convictions “are so basic as to be implicit in the fact of a prior conviction.” U.S. v. Hollingsworth, 414 F.3d 621 (6th Cir. 2005). Included among these “certain aspects” of prior convictions is the determination as to whether the prior conviction was for a crime of violence. The determination regarding whether defendant’s crimes of violence were related was substantially similar to the determination of whether a conviction constitutes a crime of violence, and thus, the district court did not err by making this inquiry. U.S. v. Alford, 436 F.3d 677 (6th Cir. 2006).
6th Circuit clarifies that court need not explicitly address each § 3553(a) factor. (120) Defendant was sentenced during the period between the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (6th Cir. 2005). It imposed a 120-month sentence under the mandatory guideline system. Anticipating the Supreme Court’s decision in Booker, the district court also imposed an identical alternative sentence. The Sixth Circuit noted that it will not remand for Booker resentencing where the court below has expressly contemplated an advisory-only guidelines regime and imposed an identical alternative sentence. The panel further clarified that when imposing identical alternative sentence, the district court is not required to explicitly consider the § 3553(a) sentencing factors. The judge must offer “some measure of reasoning when sentencing under the advisory-only guidelines. However, we decline to require a special incantation that includes the phrase “§ 3553(a) factors.” U.S. v. Till, 434 F.3d 880 (6th Cir. 2006).
6th Circuit affirms alternative sentence imposed in anticipation of Booker. (120) Defendant was convicted of presenting a false claim to the IRS and related charges. On appeal, the Sixth Circuit reversed one conviction and vacated defendant’s sentence so that the district court could consider whether a downward departure was warranted because the loss calculation overstated the severity of the offense. At resentencing, the district court chose not to depart, and announced two identical sentences: one under the guidelines, and the other that treated the guidelines as advisory. The Sixth Circuit held that any Booker error was harmless since the court announced an identical alternative sentence. The alternative sentence was reasonable. The district court declined to revise its original sentence because it found that a downward departure would understate defendant’s criminal history, and because defendant had recently made clear to the court that he intended to “disrupt the proper functioning of the government by whatever means he may employ.” These considerations outweighed the need to depart downward. In addition, the court specifically set forth its treatment of substantially all the factors in § 3553(a) in sentencing defendant. U.S. v. McBride, 434 F.3d 470 (6th Cir. 2006).
6th Circuit clarifies reviewability of refusal to grant downward departures. (120) In U.S. v. Puckett, 422 F.3d 340 (6th Cir. 2005), the Sixth Circuit held that the principle that “refusals to grant a downward departure are unreviewable” survived Booker, and that a district court’s decision not to depart downward would not be reviewed unless the record reflected that the court was not aware of or did not understand its discretion to make such a departure. Here, the Sixth Circuit noted that this opinion has caused some confusion, and decided to clarify some ambiguities. Despite its broad language, Puckett addresses only the appellate review of the guidelines calculation, which under Booker is both advisory and merely one factor to be considered under 18 U.S.C. § 3553(A). It does not govern or alter a court’s ability to review the overall reasonableness of the sentence. Puckett stands only for the proposition that the appellate court cannot review a district court’s decision to deny a Chapter 5 guideline departure in calculating the guideline sentence. The court must still review for reasonableness in the context of the other § 3553(a) factors. U.S. v. McBride, 434 F.3d 470 (6th Cir. 2006).
6th Circuit directs resentencing based on least serious of predicate RICO acts where jury returned general verdict. (120) Defendant was convicted by a general guilty verdict of violating RICO and of conspiring to violate RICO. The jury did not specify which of four predicate acts they found that defendant had committed. However, the district court stated that it found by a preponderance of the evidence that defendant had a committed all four predicate acts and that the murder guideline, the most serious of the predicate offenses, was therefore appropriate. The Sixth Circuit held that by finding that defendant had committed all four predicate acts, the district court violated defendant’s Sixth Amendment right to trial by jury. There was no way of knowing whether defendant’s jury found beyond a reasonable doubt that he had committed only two of the predicate acts required for a RICO conviction, or three, or even all four. Rather than granting defendant a new trial, the panel remanded for resentencing based on the least serious of the predicate acts, arson and mail fraud, resulting in a guidelines base offense level of 24. U.S. v. Johnson, 440 F.3d 832 (6th Cir. 2005).
6th Circuit finds no Sixth Amendment violation where defendant did not object to drug quantity in PSR. (120) Defendant argued that his Sixth Amendment rights were violated because he was sentenced based in part on factors that he neither admitted nor were found by a jury. The Sixth Circuit found no constitutional violation. Defendant did not object to the PSR’s assertion that he possessed 9.59 grams of methamphetamine, a fact necessary to support defendant’s ten-year mandatory minimum sentence. Defendant failed to object to the PSR, and therefore, was deemed to have the admitted the facts in the report, including drug quantity. U.S. v. Adkins, 429 F.3d 631 (6th Cir. 2005).
6th Circuit remands where defendant sentenced under mandatory guidelines. (120) Defendant pled guilty to illegally reentering the U.S. after having been deported following a felony conviction. He received a 16-level enhancement because he had previously been convicted of attempted burglary, which is a crime of violence under § 2L1.2(b)(1)(A)(ii). Defendant argued that the enhancement significantly overstated the severity of his attempted burglary conviction, but the district court ruled that it did not have the discretion to depart downward. After defendant was sentenced, the Supreme Court decided U.S. v. Booker, 543 U.S. 220 (2005). The Sixth Circuit held that defendant’s sentence should be remanded to the district court for reevaluation in light of Booker and U.S. v. Barnett, 398 F.3d 516 (6th Cir. 2005). The government acknowledged that the district court erred in sentencing defendant under what everyone properly assumed at the time were mandatory Sentencing Guidelines. U.S. v. Ibarra-Hernandez, 427 F.3d 332 (6th Cir. 2005).
6th Circuit holds that consent to be sentenced under Sentencing Guidelines did not bar Booker claim. (120) In his plea agreement, defendant expressly consented to sentencing under the Sentencing Guidelines. Previously, in U.S. v. Bradley, 400 F.3d 459 (6th Cir. 2005), the Sixth Circuit held that a voluntary waiver of appeal in a plea agreement precludes Booker review of the sentence. The Sixth Circuit found Bradley inapplicable in light of it recent decision in U.S. v. Amiker, 414 F.3d 606 (6th Cir. 2005). As in Amiker, defendant did not expressly waive his right to appeal in the plea agreement, and thus the current situation fell outside the reach of Bradley. The mere fact that defendant agreed to be, and was, sentenced under the Sentencing Guidelines, did not preclude him from raising on appeal an alleged Booker error regarding his sentence. U.S. v. Puckett, 422 F.3d 340 (6th Cir. 2005).
6th Circuit finds no evidence to rebut presumption of prejudice from Booker error. (120) Defendant pled guilty to being a previously deported alien found in the U.S. The district court applied a 16-level enhancement under § 2L1.1 based on defendant’s three prior felony drug convictions. The enhancement increased defendant’s sentencing range from 4-10 months to a range of 57-71 months. The court hinted that it might have imposed a shorter sentence if such a sentence were allowed under the guidelines, noting that defendants who will be deported get a harsher sentence “because they are not eligible for halfway house placement.” The Sixth Circuit remanded for resentencing under the now advisory Sentencing Guidelines. Even absent a Sixth Amendment violation, a defendant sentenced under the mandatory guideline regime is entitled to a remand under the advisory guidelines unless there is evidence in the record to rebut the presumption of prejudice. U.S. v. Alva, 405 F.3d 383 (6th Cir. 2005). There was no evidence in the present case to rebut this presumption, and there was affirmative evidence in the record that suggested that the court might well have shortened defendant’s sentence it if had had the discretion to do so. U.S. v. Navarro-Diaz, 420 F.3d 581 (6th Cir. 2005).
6th Circuit holds that 37-month sentence for felon in possession charge was reasonable. (120) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The guideline calculations resulted in a sentencing range of 37-46 months, and the district court imposed a 37-month sentence. The Sixth Circuit found no Booker error, because in addition to determining defendant’s sentence under the guidelines, the district court also treated the guidelines as advisory and sentenced defendant pursuant to the sentencing factors outlined in 18 U.S.C. § 3553(a). The court found that the sentence it imposed would afford adequate deterrence and just punishment. In addition, the sentence would give defendant the opportunity to get a GED and pick up a trade so that upon the end of his sentence he could become a productive member of society. The 37-month sentence was reasonable, in light of the guidelines recommended sentencing range and the reasons expressed by the court. U.S. v. Chandler, 419 F.3d 484 (6th Cir. 2005).
6th Circuit says Booker error was harmless where alternate sentence was identical to guideline sentence. (120) The district court issued two alternative sentences: one in the event that the guidelines remained binding in the aftermath of Blakely v. Washington, 542 U.S. 296 (2004), and the other in the event that the guidelines were invalidated. The two sentences were identical. The Sixth Circuit ruled that any Booker error in defendant’s sentencing was harmless, because the district court adequately conveyed that it would impose the same sentence in the absence of mandatory sentencing enhancements. U.S. v. Christopher, 415 F.3d 590 (6th Cir. 2005).
6th Circuit says government did not rebut presumption that pre-Booker sentence affected substantial rights. (120) Defendant argued for the first time during oral argument that his sentence violated the Sixth Amendment. He did not raise the issue in his appellate briefs or in any supplemental briefing under Rule 28(j). Because there was plain error in sentencing defendant under the pre-Booker guidelines framework, the Sixth Circuit exercised its discretion to consider the Booker issue despite defendant’s failure to raise it in supplemental briefing before the appellate court. Because defendant was sentenced under the now-erroneous assumption that the guidelines were mandatory, he satisfied the first two requirements of the plain-error test. The third prong required the defendant to demonstrate that the plain error affected substantial rights. A presumption of prejudice is proper where a defendant is sentenced under the pre-Booker mandatory guideline regime and the court could have imposed a lower sentence in the post-Booker world. U.S. v. Barnett, 398 F.3d 516 (6th Cir. 2005). The government did not rebut this presumption. Defendant was sentenced at the very bottom of the guideline range, which suggested that the court might have sentenced defendant to a lower sentence if it had known the guidelines were advisory. The last prong requires the error to have seriously affected the fairness, integrity or public reputation of judicial proceedings. A sentence imposed under the pre-Booker regime satisfies this requirement, even in the absence of a Sixth Amendment violation. U.S. v. Trammel, 404 F.3d 397 (6th Cir. 2005).
6th Circuit finds “clear and specific evidence” that court would not have imposed lesser sentence under advisory guidelines. (120) Defendant was convicted of possession of a machine gun, in violation of 18 U.S.C. 922(o), and received a two-level enhancement under § 2K2.1(b)(4) because the gun was stolen. The Sixth Circuit rejected defendant’s Booker challenge to the enhancement. Defendant admitted in the plea agreement that the machine gun qualified as a destructive device and that it was stolen. The court’s error in treating the guidelines as mandatory did not constitute plain error. The presumption of prejudice can be rebutted in those rare cases where the record contains “clear and specific evidence” that the district court would not have sentenced defendant to a lower sentence under an advisory guideline scheme. The record here contained such “clear and specific” evidence. First, the court imposed the enhancements based not only on the guidelines, but on the terms of defendant’s plea agreement. Second, at sentencing, based on defendant’s criminal history, the court actually considered an upward departure and referred to defendant as a “menace”. The court ended up ended up sentencing him to the maximum possible guideline sentence. Thus, the court would have imposed the same or lengthier sentence had it not believed it was bound by the guidelines. U.S. v. Webb, 403 F.3d 373 (6th Cir. 2005).
6th Circuit rejects Sixth Amendment challenge but nonetheless remands. (120) Defendant argued for the first time on appeal that the district court violated his Sixth Amendment jury trial right by enhancing his sentence for his firearm possession under U.S.S.G. § 2D1.1(b)(1). The Sixth Circuit found no Sixth Amendment violation since the fact that defendant possessed the weapon was established by his plea of guilty to a firearms charge. Defendant was not entitled to have a jury second-guess his guilty plea. Nonetheless, the panel found it “prudent” to remand for the district court to “take another look at the sentence in light of the new dispensation,” and treat the guidelines as advisory rather than mandatory. U.S. v. McCraven, 401 F.3d 693 (6th Cir. 2005).
6th Circuit holds that § 1B1.8 remains binding on courts after Booker. (120) Defendants argued that the district court violated § 1B1.8 in determining the amount of cocaine base attributable to them. Section 1B1.8 prohibits use of the defendant’s proffer statements in determining his sentencing range. In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court rendered the Sentencing Guidelines non-mandatory, but held that they must be considered by the sentencing courts. Booker did not address § 1B1.8. However, the Sixth Circuit declined to interpret Booker to mean that district courts are now permitted to consider at sentencing defendant’s own proffer statement, which are explicitly protected under § 1B1.8. Instead, just as before Booker, § 1B1.8 permits a court to consider the proffer statements of co-defendants in determining a defendant’s sentence, but prohibits the court from considered the defendant’s own proffer statements. U.S. v. Milan, 398 F.3d 445 (6th Cir. 2005).
6th Circuit disagrees with 11th and 2nd Circuit’s plain error approach. (120) Defendant raised a Blakely/Booker challenge to his sentence for the first time on appeal. The Sixth Circuit, following its decision in U.S. v. Oliver, 397 F.3d 369 (6th Cir. 2005), ruled that the district court committed plain error when it sentenced defendant based on drug amounts found by the district court at sentencing. The court rejected the Eleventh Circuit’s approach in U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), in which the appealing defendant must be able to demonstrate a reasonable probability that he was prejudiced by the Booker error, and the Second Circuit’s approach in U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005), which would remand for the district court to conduct a plain or harmless error inquiry. These cases miss “a critical aspect of Booker” – namely, that the Supreme Court remanded Booker’s case for resentencing. A remand for resentencing of Booker “must rest on a decision that the error in his case was reversible, i.e. was not harmless and affected Booker’s substantial rights.” In the ordinary case, a Booker-type Sixth Amendment violation affects substantial rights. U.S. v. Milan, 398 F.3d 445 (6th Cir. 2005).
6th Circuit finds no Sixth Amendment violation where sentence was based on facts admitted by defendant. (120) The district court found that the amount of loss was $132,000 based primarily on evidence that defendant wrote a check for that amount to the IRS on a closed account. Defendant argued that the district court’s decision violated his rights under Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005) because the amount of loss was not submitted to a jury for determination beyond a reasonable doubt. The Sixth Circuit ruled that defendant’s sentence did not pose a problem under Blakely or Booker because the sentence imposed was authorized “solely on the basis of facts … admitted by the defendant.” Defendant’s plea agreement included an admission that the IRS levy was $132,000, and that he caused the forged release to be sent with the intent to defraud the IRS of the amount it could collect under the levy. Because facts sufficient to support the sentence were admitted by defendant, his Sixth Amendment rights were not violated. The court noted that this opinion did not foreclose a defendant from arguing that a remand was necessary on the ground that the district court regarded the guidelines as mandatory at the time of sentencing. However, defendant did not make such an argument. U.S. v. Murdock, 398 F.3d 491 (6th Cir. 2005).
6th Circuit finds plain error where defendants received sentence in excess of that authorized by jury verdict. (120) Defendants argued for the first time on appeal that their sentencing violated Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005). The Sixth Circuit agreed that defendant’s Sixth Amendment rights were violated during the sentencing process because the court relied on judge-found facts to impose sentencing enhancements that could not have been imposed based solely on facts found by the jury beyond a reasonable doubt. The error was plain, even though it may not have been clear or obvious at the time they were sentenced. The error affected their substantial rights, since their sentences were longer than they could have received based on the jury verdict alone. Finally, the panel exercised its discretion to correct the error, since such an error “would diminish the integrity and public reputation of the judicial system and would also diminish the fairness of the criminal sentencing system.” U.S. v. McDaniel, 398 F.3d 540 (6th Cir. 2005).
6th Circuit says prejudice could be presumed from court’s failure to treat guidelines as advisory. (120) Defendant argued for the first time on appeal that the court should vacate his sentence and remand in light of the fact that the district court sentenced defendant as if the guidelines were mandatory. The first two prongs of the plain error test were met: there was error, and the error was plain, since defendant was sentenced under a mandatory guidelines regime that has now become advisory. The third prong requires the defendant to demonstrate that the plain error affected substantial rights. The Sixth Circuit held that it could presume prejudice from the district court’s failure to treat the guidelines as advisory. A presumption of prejudice is appropriate in cases where the inherent nature of the error makes it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court proceeding would have been different had the error not occurred. See U.S. v. Olano, 507 U.S. 725 (1993). Here, had the district court not been bound by the guideline, defendant may have received a lower sentence. It would be “exceedingly difficult” for defendant to show that his sentence would have been different if the court had sentenced him under the advisory, rather than the mandatory, guideline framework. In some cases, evidence in the record will be sufficient to rebut the presumption of prejudice, but the evidence here was insufficient. U.S. v. Barnett, 398 F.3d 516 (6th Cir. 2005).
6th Circuit holds that Armed Career Criminal sentencing did not violate Sixth Amendment. (120) Defendant argued that the application of the Armed Career Criminal Act, 18 U.S.C. § 924(e), violated the Sixth Amendment principles established in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and U.S. v. Booker, 543 U.S. 220 (2005) because the trial judge, rather than the jury, determined the nature of defendant’s previous convictions. The Sixth Circuit disagreed. Apprendi does not require the nature or character of prior conviction to be determined by a jury. Moreover, there is no language in Booker suggesting that the Supreme Court, as part of its remedial scheme adopted in that case, intended to alter the exception to Apprendi allowing district courts to consider the fact and nature of prior convictions without submitting those issues to the jury. U.S. v. Barnett, 398 F.3d 516 (6th Cir. 2005).
6th Circuit holds that defendant waived right to appeal sentence. (120) Defendant’s Addendum to the Plea Petition provided that defendant waived his “right to appeal any sentence within the maximum provided in the offense level as determined by the court or the manner in which that sentence was determined on the grounds set forth in 18 U.S.C. § 3742….” The Sixth Circuit held that defendant waived the right to challenge an obstruction of justice enhancement, even on grounds that the enhancement violated Blakely v. Washington, 542 U.S. 296 (2004). U.S. v. Yoon, 398 F.3d 802 (6th Cir. 2005).
6th Circuit holds that loss calculated by judge met plain error standards. (120) In the wake of Blakely v. Washington, 542 U.S. 296 (2004), defendant argued for the first time on appeal that the district court’s loss calculation violated the Sixth Amendment. Following U.S. v. Oliver, 397 F.3d 369 (6th Cir. 2005), the Sixth Circuit found that the plain error test had been met. The district court rejected both defendant’s and the government’s loss calculations and made it own loss assessment based on its independent review of the evidence. By making this determination, the district court did exactly what the Supreme Court found to be a violation of the Sixth Amendment in U.S. v. Booker, 543 U.S. 220 (2005). The sentence plainly violated the Sixth Amendment, and the panel agreed with Oliver that allowing it to stand would “diminish the integrity and public reputation of the judicial system and would diminish the fairness of the criminal sentencing system.” Judge Cook concurred to note that Booker does not forbid all judicial fact-finding. Post-Booker, “judges may enhance sentences based upon facts not found by the jury, provided they do not consider themselves required to do so.” U.S. v. Davis, 397 F.3d 340 (6th Cir. 2005).
6th Circuit holds that type of firearm must be charged in indictment and proved beyond reasonable doubt. (120) Section 924(c)(1) provides for mandatory additional sentences for using or possessing any firearm during a crime of violence. If the firearm involved is a certain type of firearm, § 924(c)(1)(B) increases the mandatory minimum to 10 or 30 years, depending on the type of firearm involved. The Sixth Circuit held that the mandatory minimum in the firearm-type provision in § 924 is not binding on a sentencing court unless the type of firearm involved is charged in the indictment and proved to a jury beyond a reasonable doubt. The firearm types set out in § 924 are elements of separate crimes, rather than sentencing factors. Therefore, Booker requires § 924 firearm enhancements be charged in the indictment and proved to a jury beyond a reasonable doubt. The panel did not address the general constitutionality of mandatory minimum sentences imposed through judicial fact-finding, a practice explicitly approved by the Supreme Court prior to Booker, when traditional sentencing factors, rather than elements, are involved. U.S. v. Harris, 397 F.3d 404 (6th Cir. 2005).
6th Circuit holds that Booker error constituted plain error. (120) Defendant argued for the first time on appeal that the district court’s application of an obstruction of justice increase under 3C1.1 violated the mandates of U.S. v. Booker, 543 U.S. 220 (2005). The Sixth Circuit held that the district court plainly erred by applying the federal guidelines as mandatory rather than advisory, “thereby sentencing [defendant] beyond the sentencing range which the jury verdict and [defendant’s] criminal history supported.” First there was error. The facts established by the jury verdict only supported a maximum sentence of 168 months’ imprisonment. The district court imposed a sentence 12 months longer than the guideline maximum, based upon judge-found facts and the mandates of the Federal Sentencing Guidelines. The error was plain. An error need not always be obvious at the time of the district court’s determination in order to be considered plain – it is enough that the error be plain at the time of appellate consideration. Finally, because defendant received a sentence that was longer than his sentence would have been absent a Sixth Amendment violation, the sentencing error affected defendant’s substantial rights. Finally, the panel concluded that a sentencing error that leads to a Sixth Amendment violation “would diminish the integrity and public reputation of the judicial system,” and therefore remanded for resentencing. U.S. v. Oliver, 397 F.3d 369 (6th Cir. 2005).
6th Circuit says Blakely did not entitle defendant to have jury decide what happened at state-court proceeding. (120) The district court used defendant’s prior state-court continuance without a finding proceeding to enhance both his criminal history and offense level. He argued for the first time on appeal that under Blakely v. Washington, 124 S.Ct. 2531 (2004), he was entitled to have a jury decide, beyond a reasonable doubt, what happened at the state-court proceedings that resulted in a continuance without a finding. He also argued that Blakely required the jury to decide how many firearms were involved in his offense. The Sixth Circuit found no plain error. First, in the absence of a Supreme Court pronouncement that Blakely applies to the Federal Sentencing Guidelines, federal sentencing decisions following pre-Blakely precedents are not plainly erroneous. In addition, under Apprendi, even after Blakely, the fact of a conviction need not be proved to a jury beyond a reasonable doubt. Finally, defendant did not contest in the district court the facts that he now argued should have been submitted to a jury. Therefore, there was no basis for arguing that the failure to submit those facts to a jury seriously affected the fairness, integrity, or public reputation of judicial proceedings. U.S. v. Fraser, 388 F.3d 371 (1st Cir. 2004).
6th Circuit says whether crimes were committed “on occasions different from one another” is part of prior convictions exception. (120) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that “[o]ther than the fact of a prior criminal conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Defendant argued that the requirement in the Armed Career Criminal Act, 18 U.S.C. § 924(e), that a defendant have three prior convictions “committed on occasions different from one another” constituted a fact subject to the protections outlined in Apprendi. The Sixth Circuit, however, ruled that the “committed on occasions different from one another” issue was so interrelated to the finding of whether such prior convictions existed that the issue fell within the exception in Apprendi for a prior conviction. Thus, this issue need not be pled in an indictment, submitted to a jury, and proved beyond a reasonable doubt. The “different occasions” language involves the issue of recidivism, and cannot be significantly distinguished from “the fact of a prior conviction.” U.S. v. Burgin, 388 F.3d 177 (6th Cir. 2004).
6th Circuit holds that use of cross-reference did not violate Apprendi. (120) At sentencing, the district court used the cross-reference in § 2K2.1(c)(1)(A) to sentence defendant under the attempted murder guideline. Defendant challenged the use of the cross-reference based on U.S. v. Stubbs, 279 F.3d 402 (6th Cir. 2002). In Stubbs, the Sixth Circuit reversed a mandatory 60-month sentence, resulting from a cross-reference under § 2K2.1(c)(1)(A), finding that the increase in the minimum sentence was “more fundamental” than sentencing in excess of the statutory maximum, and was prohibited by Apprendi. The Sixth Circuit rejected defendant’s challenge, noting that Stubbs is no longer good law. Neither Stubbs nor the precedent on which it relied survived a recent Supreme Court case Harris v. U.S., 536 U.S. 545 (2002), which held that the constitutional mandates of Apprendi do not apply to the Sentencing Guidelines when the defendant’s sentence remains below the maximum sentence authorized by statute. Thus, “a fact that merely activates or increases a statutorily mandated minimum sentence may, at the legislature’s discretion, be submitted to a judge and proved only by a preponderance of the evidence.” U.S. v. Chapman, 305 F.3d 530 (6th Cir. 2002). Since defendant’s sentence fell well within statutory limits, the use of the cross-reference was not improper. U.S. v. Helton, 349 F.3d 295 (6th Cir. 2003).
6th Circuit holds that hearsay evidence cannot be used at sentencing to prove drug quantity beyond a reasonable doubt. (120) The district court imposed an 88-month sentence after finding that defendant’s conspiracy involved 236 kilograms of marijuana. The Supreme Court later decided Apprendi v. New Jersey, 530 U.S. 466 (2000). The case was remanded for resentencing in light of Apprendi. The district court declined to consider the parties’ sentencing stipulation and determined that the evidence that the conspiracy involved 236 kilograms of marijuana was established beyond a reasonable doubt. The Sixth Circuit held that the normal rules of evidence should apply when Apprendi requires the district court to find drug quantity beyond a reasonable doubt. Therefore, it was not permissible to use hearsay evidence to reach the 50-kilogram quantity needed to sentence defendant under 18 U.S.C. § 841(b)(1)(C). Thus, the court improperly relied on Rush’s testimony that his nephews told him how many pounds of marijuana they bagged a night. The testimony of Dodge restating the testimony of grand jury witnesses also constituted impermissible hearsay. The remaining evidence was insufficient to establish the 50-kilogram figure. Therefore, defendant’s sentence of 88 months was improper because it subjected him to a sentence in excess of the statutory maximum, in violation of his right under Apprendi to have each element of the offense proved beyond a reasonable doubt. U.S. v. Darwich, 337 F.3d 645 (6th Cir. 2003).
6th Circuit says defendant could not show prejudice where she admitted involvement with 500 pounds of marijuana. (120) In a § 2255 motion, defendant argued that because her indictment failed to allege a specific quantity of marijuana, the district court could not sentence her beyond the default statutory maximum under Apprendi v. New Jersey, 530 U.S. 466 (2000). However, in Goode v. U.S., 305 F.3d 378 (6th Cir. 2002), the Sixth Circuit held that Apprendi is not retroactively applicable to initial § 2255 motions, because it did not create a new “watershed rule” that improved the accuracy of determining the guilt or innocence of a defendant. Moreover, even if defendant were entitled to bring her Apprendi claim, she would still need to show cause and prejudice as to why she did not pursue this claim in the district court or on direct appeal. Even if she could show cause, the Sixth Circuit found the prejudice hurdle “insurmountable,” since defendant admitted her involvement with nearly 500 pounds of marijuana. Regalado v. U.S., 334 F.3d 520 (6th Cir. 2003).
6th Circuit says Apprendi did not require indictment to reference specific penalty provisions of § 841(b). (120) Defendant argued that his indictment was in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), because it did not specifically reference the penalty provisions of 21 U.S.C. § 841(b). The Sixth Circuit disagreed. There is no support in Apprendi for requiring an indictment to reference the penalty provisions of § 841(b) where the indictment properly sets forth specific drug quantities and puts the defendant on notice of all the elements of the offense that would increase the penalty for the crime beyond the statutory maximum. There was no Apprendi error. U.S. v. Brown, 332 F.3d 363 (6th Cir. 2003).
6th Circuit holds that nine-level increase did not result in cruel and unusual punishment. (120) At the time of the offense, U.S.S.G. § 2D1.1(b)(6)(A) provided for a three-level enhancement if the offense involved the manufacture of methamphetamine and created a substantial risk of harm to human life or the environment. If the resulting offense level is less than level 27, the court is instructed to increase the offense level to 27. Defendants argued that the application of § 2D1.1(b)(6)(A), which resulted in nine-level increases to each of their offense levels, had an extremely disparate impact on their sentences, because a more culpable defendant with a higher offense level would have received a smaller enhancement. The Sixth Circuit affirmed the enhancement. Even if a higher burden of proof were required, the district court, in an abundance of caution, applied the higher clear and convincing evidence standard. The increase did not result in a sentence that constituted cruel and unusual punishment. The Supreme Court has concluded that comparative proportionality is not mandated by the Constitution. See Pulley v. Harris, 465 U.S. 37 (1984). U.S. v. Layne, 324 F.3d 464 (6th Cir. 2003).
6th Circuit rejects Apprendi claims where other count carried maximum life sentence. (120) Count One charged defendant with conspiring to possess with intent to distribute more than a kilogram of methamphetamine. Count Two charged him with attempting to possess about a pound of meth. The district court imposed a 292-month sentence, which exceeded the 20-year default statutory maximum for a drug offense involving an indeterminate amount of methamphetamine. Nonetheless, the Sixth Circuit rejected defendant’s challenge under Apprendi v. New Jersey, 530 U.S. 466 (2000), because his sentence was supported by the Count One charges. The one-kilogram amount in Count One triggered an enhanced 10-years to life statutory sentencing range. Moreover, the jury made a separate finding that defendant conspired to possess with intent to distribute 1 kilogram or more of a mixture or substance containing methamphetamine. Although the court instructed the jury that drug quantity was not an element of the offense, defendant suffered no adverse consequences, since the jury still made the drug quantity finding beyond a reasonable doubt. The judge did err in altering the drug quantity from that charged in Count Two of the indictment (the indictment stated that the offense involved “approximately 1 pound” of meth, while the jury was instructed to determine whether the offense involved “100 grams or more” of meth). However, the error was harmless and played no role in the jury’s verdict. U.S. v. Zidell, 323 F.3d 412 (6th Cir. 2003).
6th Circuit holds guideline increase for resulting death applies only if proven beyond reasonable doubt. (120) The federal drug trafficking statute, 21 U.S.C. § 841(b)(1)(C), provides for a mandatory minimum sentence of 20 years “if death or serious bodily injury result[ed]” from the use of a schedule I controlled substance. In U.S. v. Rebmann, 226 F.3d 521 (6th Cir. 2000), the Sixth Circuit held that the “if death results” provision of § 841(b)(1)(C) is not a mere sentencing factor, but an element of a separate crime (distribution resulting in death) that must be proved beyond a reasonable doubt. Because defendant had been sentenced beyond the 20-year maximum permitted without the “if death results” enhancement, the case was remanded. On remand, the government argued that the district court could apply the “if death results” increase in U.S.S.G. § 2D1.1(a)(2) based on its previous finding under the preponderance of the evidence standard. The Sixth Circuit disagreed, concluding that the guidelines’ “if death results” enhancement is not based on relevant conduct, but is tied expressly to the substantive offense of conviction under the statute. As a result, the guidelines’ “if death results” enhancement applies only when the elemental facts supporting the “offense of conviction” establish beyond a reasonable doubt that death resulted from the use of the controlled substance. U.S. v. Rebmann, 321 F.3d 540 (6th Cir. 2003).
6th Circuit holds that Apprendi error was harmless where overwhelming evidence of drug quantity. (120) Defendant’s sentence of life imprisonment was well in excess of the range authorized by § 841(b)(1)(C), and, because drug quantity was not alleged in the indictment or determined by the jury, was “a quintessential Apprendi violation.” Nonetheless, the Sixth Circuit held that the error was harmless. At trial, the government introduced overwhelming uncon-troverted evidence that defendant conspired to distribute at least five grams of crack. In additional to introducing a number of drug tabulation notebooks reflecting the sale of dozens of ounces of powder and crack, the government also introduced the testimony of Gardner, who testified that he purchased four and a half ounces – over 120 grams – of crack from defendant on a single occasion. Moreover, Williams testified that he and defendant were involved in the sales of “hundreds” of ounces of drugs, about 80 percent of which was crack. Because there was no doubt that a jury would find defendant responsible for at least five grams of crack, the government established that the Apprendi error was harmless. U.S. v. Copeland, 321 F.3d 582 (6th Cir. 2002).
6th Circuit finds no Apprendi violation despite use of higher statutory range where sentence imposed did not exceed default statutory maximum. (120) The district court sentenced defendant to a 30-year term pursuant to § 841(b)(1)(B). Defendant insisted that he should have been sentenced under § 841(b)(1)(C), because drug quantity was not determined by the jury beyond a reasonable doubt. The Sixth Circuit held that because defendant’s sentence was within the statutory maximum of § 841(b)(1)(C), his sentence did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). It was clear that the district court did not intend to sentence defendant pursuant to the statutory range of § 841(b)(1)(C). Nevertheless, the sentence imposed fell within § 841(b)(1)(C). Under Harris v. U.S., 122 S.Ct. 2406 (2002), because defendant was not sentenced beyond the statutory range of § 841(b)(1)(C), the fact that the court sentenced defendant based in part on findings not proved beyond a reasonable doubt did not rise to a constitutional violation under Apprendi. U.S. v. Copeland, 321 F.3d 582 (6th Cir. 2002).
6th Circuit holds that Apprendi does not apply to drug quantities that trigger mandatory minimum. (120) Defendant argued on appeal that the district court erred by imposing a mandatory minimum five-year sentence for his drug offense when no drug quantity was alleged in the indictment or found beyond a reasonable doubt. The Sixth Circuit found defendant’s argument foreclosed by Harris v. U.S., 536 U.S. 545 (2002), which held that, unlike factors increasing a sentence beyond the statutory maximum, factors increasing the mandatory minimum sentence need not be determined by a jury. Thus, in U.S. v. Leachman, 309 F.3d 377 (6th Cir. 2002), the court held that Harris, which involved a conviction for carrying a firearm while committing a drug trafficking offense, applied to convictions for conspiracy to distribute under § 841. Harris and Leachman make clear that drug quantities that trigger a mandatory sentence need not be found beyond a reasonable doubt. Further, as in Leachman, defendant’s plea agreement specifically identified the quantity for which he would be held responsible. U.S. v. Wade, 318 F.3d 698 (6th Cir. 2003).
6th Circuit holds that § 841(b)(1)(D) carries statutory maximum for indeterminate amount of marijuana. (120) The maximum penalty under 21 U.S.C. § 841(b)(1)(D) for cases dealing with “less than 50 kilograms of marihuana” is five years. On the other hand, under 21 U.S.C. § 841(b)(4), “any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration” is subject to a maximum sentence of one year of imprisonment. Because the jury did not determine drug quantity or remuneration, defendants argued that the district court violated Apprendi v. New Jersey, 530 U.S. 466 (2000) by sentencing them under § 841(b)(1)(D) rather than § 841(b)(4). The Sixth Circuit found no Apprendi violation, ruling that § 841(b)(1)(D) carries the statutory maximum penalty for offenses involving an indeterminate amount of marijuana. Section 841(b)(4) is a mitigating exception to the previous sections of the drug trafficking statute, rather than the “first rung of the penalty ladder for the offense of distribution of marijuana.” U.S. v. Outen, 286 F.3d 622 (6th Cir. 2002). U.S. v. Campbell, 317 F.3d 597 (6th Cir. 2003).
6th Circuit upholds sentences in excess of statutory maximum in light of “overwhelming” drug quantity evidence. (120) Four defendants were convicted of drug charges, and argued on appeal that their sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Because the court limited the first two defendants’ sentences to 20 years, and the statutory maximum penalty for an unspecified quantity of any form of cocaine is 20 years, 21 U.S.C. § 841(b)(1)(C), the Sixth Circuit found that Apprendi was not triggered. Defendant’s argument to expand Apprendi to cover the imposition of a mandatory minimum sentences was meritless in light of Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406 (2002). The other two defendants forfeited their Apprendi claims below, and therefore their sentences would only be reviewed for plain error. An Apprendi error does not seriously affect that fairness, integrity, or public reputation of judicial proceedings, and thus does not meet the plain error test, where the evidence of drug quantity is “overwhelming” and “essentially uncontroverted.” U.S. v. Cotton, 535 U.S. 625 (2002). Here, there was an overwhelming amount of evidence to justify the court’s drug quantity findings. Trial testimony indicated that one defendant was buying two to five kilograms of crack a week from his source as early as 1993. The other defendant was the first defendant’s right hand man. Each of the other cooperating conspirators had personally purchased more than a kilogram of crack from defendants and other members of the gang. U.S. v. Stines, 313 F.3d 912 (6th Cir. 2002).
6th Circuit holds that § 841(b)(1)(D) provides statutory maximum for marijuana offense. (120) Defendant was convicted of conspiracy to distribute marijuana. The jury made no drug quantity finding, and therefore under Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant could not be sentenced for a term that exceeded the statutory maximum for a marijuana conspiracy involving an undetermined amount of the drug. Defendant argued that 21 U.S.C. § 841(b)(4), which provides for a one-year maximum for a defendant who distributes a small amount of marijuana for no remuneration, was the applicable statutory maximum. However, because Apprendi is concerned with facts that a jury must decide, the proper baseline is not the provision with the lowest penalty, but the one which states a complete crime upon the fewest facts. Section 841(b)(4) cannot be the default provision for marijuana violations where drug quantity is undetermined, because it requires proof of an additional fact – the absence of remuneration. The Sixth Circuit concluded that § 841(b)(1)(D), which carries a five-year maximum, is the statute that prescribes the maximum for possessing or conspiring to distribute an undetermined amount of marijuana. Defendant’s 60-month sentence therefore was proper. U.S. v. Bartholomew, 310 F.3d 912 (6th Cir. 2002).
6th Circuit holds that prior convictions under ACCA are sentencing factors. (120) Defendant was sentenced as an armed career offender under the ACCA, 18 U.S.C. § 924(c)(1), based on three prior violent felony convictions. He argued that the prior convictions constituted elements of the offense that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), must be alleged and proven in an indictment. The Sixth Circuit rejected this argument because prior convictions are sentencing factors and need not be alleged in an indictment or proven beyond a reasonable doubt. Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which held that prior convictions are sentencing factors, is still good law unless and until the Supreme Court chooses to overrule it. U.S. v. Carnes, 309 F.3d 950 (6th Cir. 2002).
6th Circuit holds that Apprendi errors were harmless where court could have imposed consecutive sentences. (120) Based in part on its finding that defendant was responsible for more than 150 kilograms of cocaine, the district court sentenced him to 360 months’ imprisonment on Counts 1 and 2 to be served concurrently. Without a jury’s drug quantity finding, defendant should have been sentenced under 21 U.S.C. § 841(b)(1)(C), which sets for a 20-year statutory maximum. The Sixth Circuit ruled that the Apprendi violation was harmless error. If defendant were resentenced properly in light of Apprendi, the sentences for each count, both of which carried a statutory maximum of 20 years, would run consecutively until reaching 360 months. Therefore, defendant was not prejudiced by the Apprendi error. U.S. v. Lopez, 309 F.3d 966 (6th Cir. 2002).
6th Circuit reviews for plain error where defendants challenged drug quantity but did not raise Apprendi claim. (120) The government contended that defendants’ Apprendi challenges must be reviewed for plain error, because they did not request an instruction requiring the jury to determine whether the offense involved a specific quantity of drugs. Although defendants did not request such an instruction, they filed written objections to the drug quantity recommended by their PSRs. This would have been sufficient to preserve the challenge under U.S. v. Strayhorn, 250 F.3d 462 (6th Cir. 2001). However, in U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002), the 6th Circuit held that an Apprendi challenge will be reviewed for plain error where the defendants objected in the district court to the quantity of drugs attributed to them for sentencing, but failed to raise challenges based on Apprendi or Jones v. U.S., 526 U.S. 227 (1999). Therefore, defendants’ Apprendi claims were forfeited, the Sixth Circuit reviewed the claims only for plain error. U.S. v. Lopez, 309 F.3d 966 (6th Cir. 2002).
6th Circuit says Apprendi does not apply to increases in minimum sentence. (120) A jury found defendant guilty of violating 21 U.S.C. § 841(a)(1), but because the jury did not determine the amount of drugs involved in the offense, under Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant had to be sentenced at or below the 20-yeart statutory maximum prescribed in § 841(b)(1)(C). This requirement was satisfied, since defendant received a sentence of 188 months’ imprisonment. Nonetheless, defendant argued that an Apprendi violation occurred because the court’s determination established his minimum sentence under the guidelines at 188 months. The Sixth Circuit found this argument foreclosed by Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406 (2002), which held that Apprendi is about statutory maximums, and does not apply to changes in the statutory minimum. U.S. v. Lawrence, 308 F.3d 623 (6th Cir. 2002).
6th Circuit holds that application of mandatory minimum did not violate Apprendi. (120) The district court found defendant accountable for seven kilograms of cocaine, resulting in a guideline range of 97-121 months. Relying on the mandatory minimum sentence for offenses involve kilograms or more of cocaine set forth in 21 U.S.C. § 841(b)(1)(A), the district court sentenced him to 120 months. In U.S. v. Ramirez, 242 F.3d 348 (6th Cir. 2001), the Sixth Circuit interpreted Apprendi v. New Jersey, 530 U.S. 466 (2000) as applying to mandatory minimum sentences. However, in Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406 (2002), the Supreme Court abrogated Ramirez, hold that a judge may impose a mandatory minimum sentence without violating Apprendi, if the sentence imposed is within the otherwise applicable statutory maximum. Defendant’s 120-month sentence was less than the 240-month statutory maximum, and did not violate Apprendi. U.S. v. Samuels, 308 F.3d 662 (6th Cir. 2002).
6th Circuit upholds sentence increases below statutory maximum by preponderance of evidence. (120) Defendant challenged the constitutionality of the guidelines, contending that a jury should decide beyond a reasonable doubt all facts that are used to increase a defendant’s guideline sentencing range. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Harris v. U.S., 122 S.Ct. 2406 (2002), five members of the Court agreed that facts increasing the range of punishment below the statutory maximum may be determined by the judge, and need not be bound beyond a reasonable doubt by a jury. Defendant was sentenced to 18 months, well below the statutory maximum for violating 26 U.S.C. 7206(1). Because no factual determinations made at defendant’s sentencing increased his penalty beyond the statutory maximum, the Sixth Circuit found no constitutional violations. U.S. v. Tarwater, 308 F.3d 494 (6th Cir. 2002).
6th Circuit holds that alleged Apprendi errors did not warrant reversal under plain error standard. (120) Defendants argued for the first time on appeal that they were sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). In each case, while the court’s drug quantity finding increased the statutory maximum to which they might be subject, the actual sentence imposed did not exceed the default statutory maximum under 21 U.S.C. § 841(b)(1) (C). The Sixth Circuit found it unnecessary to determine whether Apprendi was implicated. Even if there was error, the error was plain, and it affected substantial rights, “an appellate court may … exercise its discretion to notice a forfeited error, … only if … the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings. Given that these defendants failed to raise their Apprendi argument before the district court, the “real” threat to the judicial proceedings would be to allow them “to receive a sentence prescribed for those committing less substantial drug offenses.” “[T]he overwhelming and largely uncontroverted evidence regarding drug quantity in this vast drug conspiracy to which each of these Defendants pleaded guilty” showed that affirming these sentences “would not seriously affect the fairness, integrity, or public confidence of the judicial proceedings.” U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002).
6th Circuit holds that constitutional challenge to drug quantity calculation preserved Apprendi issue. (120) Six members of a drug trafficking conspiracy argued that the district court violated Apprendi v. New Jersey, 530 U.S. 466 (2000) by sentencing them to terms of imprisonment and supervised release based upon the court’s finding of drug quantities by a preponderance of the evidence. The government contended that their claims should be reviewed only for plain error because they did not object to the drug amounts until after the jury returned its verdict. However, two defendants argued that Jones v. U.S., 526 U.S. 227 (1999) required that the drug amounts be charged in their indictments or be otherwise presented to a jury. The Sixth Circuit held that those defendants that raised constitutional challenges to their sentences based on Jones clearly preserved their Apprendi challenges for review. However, the remaining other defendants challenged certain drug quantities attributed to them, but did not raise constitutional arguments or otherwise challenge the propriety of the evidentiary standard used by the district court in determining drug quantity. All were sentenced after Jones was decided and could have relied on that case to challenge their sentences on constitutional ground. Therefore, the Sixth Circuit reviewed their Apprendi claims only for plain error. U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002).
6th Circuit holds that failure to include drug quantity in indictment or jury instructions was harmless error. (120) Defendants were sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Sixth Circuit held that harmless error analysis is proper where drug quantity is neither charged in the indictment nor submitted to the trier of fact for proof beyond a reasonable doubt. Here, the first defendant not only failed to challenge the amount of drugs attributed to him, but also the uncontroverted evidence presented at trial showed that defendant trafficked in quantities far above the 50 grams of crack or five kilograms of powder required to support his sentence. The panel had “no doubt” that a jury would have found beyond a reasonable doubt that the first defendant was involved with quantities of drugs well above the requisite amount. The panel split as to the second defendant, with a majority of the panel affirming her 365-month sentence, and one judge finding little evidence in the record to support it. U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002).
6th Circuit holds that sentence below statutory maximum is valid under Apprendi. (120) Defendant argued that the district court erred in determining that he was responsible for 1336 grams of cocaine base, without requiring that the government prove the amount beyond a reasonable doubt. The Sixth Circuit found Apprendi inapplicable, because defendant sentence was “comfortably above the statutory minimum and below the statutory maximum.” U.S. v. Chapman, 305 F.3d 530 (6th Cir. 2002).
6th Circuit holds that money laundering enhancement did not violate Apprendi. (120) Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant argued that the district court erred in holding her responsible for an amount of laundered money that was not set forth in the indictment. Because defendant’s sentence did not exceed the statutory maximum for the offenses that she was found guilty of committing, the Sixth Circuit found Apprendi inapplicable, and the amount of laundered money for which defendant was held responsible did not need to be set forth in the indictment, presented to the jury, and proven beyond a reasonable doubt. U.S. v. Orlando, 281 F.3d 586 (6th Cir. 2002).
6th Circuit holds that prior aggravated felonies need not be proven beyond a reasonable doubt. (120) Defendant was convicted of unlawfully reentering the U.S. after deportation. He received an enhanced sentence under 8 U.S.C. § 1326 based on his prior convictions for aggravated felonies. Except for prior convictions, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466 (2000). The Sixth Circuit held that under Almendarez-Torres v. U.S., 523 U.S. 224 (1995), the aggravated felonies were sentencing factors not requiring this heightened burden of proof. Apprendi did not overrule Almendarez-Torres, but established an exception for prior convictions. U.S. v. Aparco-Centeno, 280 F.3d 1084 (6th Cir. 2002).
6th Circuit finds Apprendi inapplicable. (120) Defendants argued that their life sentence for intentionally killing in the course of a drug conspiracy, in violation of 21 U.S.C. § 848(e) (10)(A), violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Sixth Circuit ruled that Apprendi was inapplicable. First, the jury was instructed to return a guilty verdict if the conspiracy involved at least 1000 kilograms of marijuana. Therefore, the jury had already found that defendant was responsible for the requisite amount of drugs beyond a reasonable doubt. Second, the statutory penalties available for a violation of 21 U.S.C. § 848(e)(1)(A) include imprisonment for life. Therefore, defendant’s sentence did not exceed the statutory maximum contemplated by law. U.S. v. Alvarez, 266 F.3d 587 (6th Cir. 2001).
6th Circuit holds Apprendi did not require type of methamphetamine be submitted to jury. (120) The district court found that with the precursor chemicals they possessed, defendants could have produced 616 grams of methamphetamine. The court also included in its drug quantity calculation 58.2 grams of pure meth in liquid form that were seized from defendants during a traffic stop. Defendants’ sentence were calculated under the 1993 guidelines, which distinguished between D-methamphetamine and L-methamphetamine. Defendants did not dispute that the 58.2 grams of liquid meth seized was D-meth, but contended that there was no evidence that D-meth would have been created from the hydriodic acid they possessed. Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), they also contended that their 5th and 6th Amendment rights were violated because the jury did not determine whether they intended to create D- or L-methamphetamine. The Sixth Circuit found no error. First, defendants’ sentences did not trigger Apprendi because the type of methamphetamine attributed to them did not increase their sentences beyond the statutory maximum. Second, there is no market for L-methamphetamine because it has only 1/10 of the potency of D-methamphetamine, and its main ingredient is difficult to obtain. See U.S. v. Owusu, 199 F.3d 329 (6th Cir. 2000). U.S. v. Laster, 258 F.3d 525 (6th Cir. 2001).
6th Circuit exercises discretion to correct sentences that exceeded statutory maximum. (120) The statutory maximum for trafficking in an undetermined amount of marijuana is five years. See 21 U.S.C. § 841(b)(1)(D). Defendants’ 210-month and 240 month sentences, based in part of the court’s finding of a drug quantity by a preponderance of the evidence, exceeded the five-year statutory maximum and thus violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendants did not raise timely objections on the Apprendi issue, and therefore the Sixth Circuit reviewed the sentences for plain error. The four prongs of plain error review are: (1) there must be an error; (2) the error must be plain; (3) the error must affect the defendant’ substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. It was clear that defendant’s sentences constituted plain error. Defendants also needed to demonstrate that the error affected their substantial rights and undermined the fairness of the proceedings. In U.S. v. Page, 232 F.3d 536 (6th Cir. 2000), the court found this standard met where the defendant’s sentence exceeded the statutory maximum by ten years. Here, one defendant’s sentence exceeded the statutory maximum by 12 1/2 years and the other’s sentence exceeded the maximum by 15 years. Because the Apprendi error clearly affect the outcome of the case, the Sixth Circuit exercised its discretion to notice the plain sentencing error and remanded for resentencing. U.S. v. Martinez, 253 F.3d 251 (6th Cir. 2001).
6th Circuit affirms despite exposure to higher mandatory minimum where sentence imposed was not at bottom of higher range. (120) Although defendant’s indictment did not allege a specific quantity of drugs, he admitted being responsible for 625 kilograms of marijuana. Under 21 U.S.C. § 841(b)(1)(B), the maximum penalty for trafficking in 400-700 kilograms of marijuana is 40 years. The district court found that defendant had participated in transporting 2499 kilograms of marijuana, and imposed a sentence of 135 months. Because defendant’s sentence did not exceed the 40-year statutory maximum for the quantity of marijuana to which he expressly admitted, the Sixth Circuit held that defendant’s sentence did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant’s sentence also did not violate U.S. v. Ramirez, 242 F.3d 348 (6th Cir. 2001), even though the court’s findings brought defendant within a sentencing range (ten years to life under § 841(b)(1)(A)) with a higher mandatory minimum than he explicitly admitted to at his allocution (five to 40 years under § 841(b)(1)(B)). The sentence imposed here was not at the bottom of the higher statutory range, as it was in Ramirez; thus, nothing indicated that the court thought itself constrained by a specific statute to impose the sentence it did. U.S. v. Garcia, 252 F.3d 838 (6th Cir. 2001).
6th Circuit rejects Apprendi challenge where defendant stipulated to drug quantity. (120) Defendant stipulated in the factual basis accompanying his plea that he was responsible for 1108 pounds, or about 500 kilograms, of marijuana. He argued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because the district court should have made a factual finding that he was responsible for 500 kilograms of marijuana beyond a reasonable doubt. The Sixth Circuit found no Apprendi error. Defendant stipulated that he was responsible for slightly more than 500 kilograms of marijuana. He also pled guilty to a count which, due to his prior felony drug conviction, carried a mandatory minimum sentence of ten years and a maximum sentence of life imprisonment. See 21 U.S.C. § 841(b). Defendant’s sentence of 168 months was, therefore, not in excess of the statutory maximum. The Apprendi argument might have merit if the indictment had failed to charge defendant with a conspiracy to distribute a specific quantity of drugs, if he pled guilty without stipulating to a specific drug quantity, and if the district court had determined drug quantity at sentencing by a preponderance of the evidence. However, defendant stipulated to the amount of drugs for which he was held responsible, and the district court did not rely on any fact outside the plea agreement to determine the drug quantity at sentencing. U.S. v. Harper, 246 F.3d 520 (6th Cir. 2001), overruled by U.S. v. Leachman, 309 F.3d 377 (6th Cir. 2002).
6th Circuit uses higher statutory maximum where single marijuana and cocaine conspiracy charged. (120) Defendant argued that his 360-month sentence for conspiring to distribute cocaine and marijuana violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Because defendant had a prior felony drug conviction, the statutory maximum under 21 U.S.C. § 841(b)(1)(C) for an offense involving an unspecified quantity of cocaine is 30 years. However, defendant argued that because of the general jury verdict, under U.S. v. Dale, 178 F.3d 429 (6th Cir. 1999), his sentence could not exceed the five-year statutory maximum for a conspiracy involving an unspecified quantity of marijuana. See 21 U.S.C. § 841(b)(1)(D). The Sixth Circuit found Dale distinguishable because the Dale court’s “enhanced unanimity” instruction required the jury “to unanimously agree as to which controlled substance, or both,” the defendants conspired to distribute. The general guilty verdict did not disclose the specific ground for conviction, i.e., crack, marijuana or both. In contrast, the indictment here charged defendants with conspiring to distribute both marijuana and cocaine, and the jury was repeatedly and consistently instructed in accordance with this charge. Dale governs where it cannot be determined from the verdict which drug or drugs the jury found was involved in a multiple-drug conspiracy. There was no such ambiguity here. Thus, defendant was subject to the 30-year maximum for a cocaine offense, and his sentence did not violate Apprendi. U.S. v. Neuhausser, 241 F.3d 460 (6th Cir. 2001).
6th Circuit rules court improperly treated use of short-barreled gun as sentencing factor rather than element. (120) Under 18 U.S.C. § 924(c), if a defendant uses or carries a firearm, the punishment is increased by five years. The district court found by a preponderance of the evidence that defendant used a short-barreled shotgun in the robbery, which triggered a ten-year mandatory minimum sentence under § 924(c)(1) (B)(i). The Sixth Circuit held that this violated Castillo v. U.S., 530 U.S. 120 (2000), which held that the particular type of weapon involved in a § 924(c) offense is an element of the crime that must be proven beyond a reasonable doubt before the trier of fact. The district court improperly treated the use of the short-barreled shotgun as a sentencing factor rather than an element of the offense. U.S. v. Bandy, 239 F.3d 802 (6th Cir. 2001).
6th Circuit says Apprendi not applicable where drug finding did not increase sentence beyond maximum. (120) Defendant pled guilty to distributing cocaine. He received a 121-month sentence, based in part on the judge’s determination that defendant conspired to distribute methamphetamine in addition to cocaine. The Sixth Circuit noted that defendant’s sentence was invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) only if the district court’s finding that defendant conspired to distribute meth resulted in him receiving a sentence in excess of the statutory maximum for conspiracy to distribute cocaine. Defendant’s sentence did not exceed this maximum. For defendant’s cocaine conspiracy alone, the statute authorized a sentence of 20 years. U.S. v. Munoz, 233 F.3d 410 (6th Cir. 2000).
6th Circuit holds that sentencing in excess of Apprendi did not constitute plain error. (120) Based on the district court’s drug quantity findings, each defendant received a sentence that exceeded the 20-year maximum in 21 U.S.C. § 841(b)(1)(C) for offenses involving an undetermined drug quantity. Since drug quantity was not mentioned in the indictment nor submitted to the jury, the sentences violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000). Defendants, however, failed to object to the district judge making the drug quantity findings, and therefore the review was for plain error. The Sixth Circuit ruled that the sentences in excess of the maximum permitted under § 841(b)(1)(C) did not constitute plain error for those defendants convicted of both conspiracy and additional substantive drug counts. In these cases, the total statutory maximum was dramatically increased depending on the number of counts of conviction. Absent the error, the court would be required to impose the same sentence on these defendants—guideline § 5G1.2(d) would require that the sentence imposed on one or more of the substantive counts run consecutive to the sentence on the conspiracy count, to the extent necessary to produce a combined sentence equal to the total punishment. However, the error was prejudicial as to defendant Page, who was convicted of only the conspiracy count and received a 30-year sentence. U.S. v. Page, 232 F.3d 536 (6th Cir. 2000).
6th Circuit holds that prior convictions under “three strikes” law are not elements of the offense. (120) Defendant argued on appeal that his sentence under the federal three strikes statute, 18 U.S.C. § 3559(c)(1)(A)(i), was unconstitutional because it was increased by facts (his prior convictions) that were not set forth in the indictment or proven beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000). In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court rejected the argument that recidivism that increases the maximum penalty is an element of the crime that must be charged in the indictment and proven beyond a reasonable doubt. Based on Almendarez-Torres, the Sixth Circuit held that defendant’s prior convictions under the federal three strikes statute were not equivalent to elements of the offense that must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. Although the Supreme Court’s decision in Apprendi arguably cast doubt on the correctness of the holding in Almendarez-Torres, the latter case remains the law. U.S. v. Gatewood, 230 F.3d 186 (6th Cir. 2000) (en banc).
6th Circuit holds that death or serious bodily injury is element of § 841 offense. (120) Defendant pled guilty under a plea agreement to the distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). The agreement provided that her maximum term of imprisonment was 20 years, but that if the court found that death resulted from the distribution, she would be sentenced to a term of 20 years to life. Relying on Jones v. United States, 526 U.S. 227 (1999) (holding that bodily injury is element, rather than sentencing factor, of federal carjacking statute), Castillo v. United States, 530 U.S. 120 (2000) (holding that type of firearm is an element of § 924(c) offense), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”), the Sixth Circuit held that whether the drug caused death or serious bodily injury is an element of the § 841 offense that must be proven beyond a reasonable doubt. Such a factual determination significantly impacts the sentence imposed by the court, increasing the maximum penalty from 20 years to one of life imprisonment. In her plea agreement, defendant waived her right to a jury trial on the issue of whether her distribution of heroin caused her husband’s death. However, she did not waive the right to have a court decide any elements beyond a reasonable doubt, as opposed to making those determinations by a mere preponderance of the evidence. U.S. v. Rebmann, 226 F.3d 521 (6th Cir. 2000).
6th Circuit rejects equal protection challenge to assault weapon enhancement. (120) Defendant illegally possessed a firearm while subject to a domestic violence protection order, in violation of 18 U.S.C. § 922(g)(8). Section 2K2.1(a)(4)(B) provides for an offense level increase if the defendant possessed the type of gun described in 18 U.S.C. § 921(a)(30). The SKS assault rifle defendant possessed fell within this description. The Sixth Circuit held that the assault weapon enhancement did not violate the equal protection clause. Because the challenged provision did not affect a fundamental right or a suspect class, the provision only needed to have a rational relationship to a legitimate government interest. Congress’s decision to deal more harshly with offenders who possess assault weapons rather than ordinary guns has a rational relationship to the government’s interest in reducing domestic violence. Individuals with a history of domestic violence may pose a greater threat to their intimate partners and children when armed with an assault rifle as opposed to a firearm less capable of immediate destruction. U.S. v. Baker, 197 F.3d 211 (6th Cir. 1999).
6th Circuit upholds constitutionality of guidelines. (120) Defendant argued that the guidelines’ policy of uniformity violates the Sixth and 14th Amendment by creating disparity and disproportionate sentences. The Sixth Circuit upheld the constitutionality of the guidelines. Most of defendant’s arguments were rejected by the Supreme Court in Mistretta v. U.S., 488 U.S. 361 (1989). The remainder were meritless. U.S. v. Thomas, 49 F.3d 253 (6th Cir. 1995).
7th Circuit says jury is not required to determine criminal history. (120) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on three prior convictions for “violent felonies.” Defendant argued that that only a jury can determine whether a person’s criminal history justifies an enhanced penalty. The Seventh Circuit noted that the Supreme Court rejected that contention in Almendarez–Torres v. U.S., 523 U.S. 224 (1998). Nor was defendant’s 1997 conviction for resisting law enforcement too old to count under the ACCA. Passage of time matters for some purposes, such as criminal history under the guidelines. See § 4A1.2(e)(1) (limit after 15 years). However, the ACCA contains no parallel provision disregarding older convictions. The district court also properly ruled that defendant’s prior Indiana conviction for domestic battery in the presence of a child was a violent felony. U.S. v. Johnson, 743 F.3d 1110 (7th Cir. 2014).
7th Circuit says definition of “crime of violence” did not exceed Sentencing Commission’s authority. (120) Defendant argued for the first time on appeal that the Sentencing Commission exceeded its authority when it defined “crime of violence” in U.S.S.G. § 4B1.2(a) differently from the definition supplied by Congress. The Seventh Circuit disagreed. In U.S. v. Rutherford, 54 F.3d 370, 374 n. 11 (7th Cir. 1995), abrogated on other grounds by Begay v. U.S., 553 U.S. 137 (2008), the court held that the Sentencing Commission had the authority to adopt the current definition of “crime of violence” in § 4B1.2. The Commission was directed by 28 U.S.C. § 994(i) to ensure that the guidelines specify a sentence for a substantial term of imprisonment for defendants with a history of two or more felony convictions. The legislative history of 28 U.S.C. § 994(h), the statute directing the Sentencing Commission to create the career offender guideline, was “not necessarily intended to be an exhaustive list of the types of cases in which the guidelines should specify a substantial term of imprisonment, nor of types of cases in which terms at or close to authorized maxima should be specified.” U.S. v. Tichenor, 683 F.3d 358 (7th Cir. 2012).
7th Circuit upholds career offender guidelines against vagueness challenge. (120) Defendant argued on appeal that the career offender guidelines were unconstitutionally vague, and that the U.S. Sentencing Commission exceeded its authority in enacting the current definition of “crime of violence” in § 4B1.2(a). Although defendant likely waived these claims by withdrawing his objection to the application of the career offender guideline at sentencing, the Seventh Circuit addressed his claims because the government waived the waiver argument, arguing instead that defendant forfeited the claims. The panel then rejected defendant’s argument that the career offender sentencing guideline was unconstitutionally vague. Defendant’s vagueness challenge was not directed at a criminal statute, but at a sentencing guideline. This distinction was crucial because the circuit has categorically held that “the Guidelines are not susceptible to attack under the vagueness doctrine.” U.S. v. Brierton, 165 F.3d 1133(7th Cir.1999). The guidelines do not establish the illegality of any conduct, but are directives to judges for their guidance in sentencing convicted criminals. U.S. v. Tichenor, 683 F.3d 358 (7th Cir. 2012).
7th Circuit rejects constitutional challenges to mandatory minimum sentence for sex offender. (120) Defendant pled guilty to one count of attempting to entice a minor to engage in sexual activity, and attempting to transfer obscene material to a minor. He was sentenced to the statutory mandatory minimum sentence of 120 months. See 18 U.S.C. § 2422(B). Absent the statutory minimum, his guideline range would have been 70-87 months. The Seventh Circuit rejected defendant’s constitutional challenges to the 120-month mandatory minimum. The Supreme Court’s decision in Booker did not give the court discretion to sentence defendant below the mandatory minimum. The mandatory minimum also did not violate the equal protection clause, or the Eighth Amendment’s prohibition against cruel and unusual punishment. U.S. v. Brucker, 646 F.3d 1012 (7th Cir. 2011).
7th Circuit remands where court may have presumed Guidelines sentence was reasonable. (120) Defendant was convicted of crack cocaine offenses, and sentenced to life in prison. The Seventh Circuit remanded to allow the district court to take into account the Supreme Court’s decision in Kimbrough v. U.S., 552 U.S. 85 (2007). On remand, the court again imposed a life sentence, and the Seventh Circuit again remanded, finding that the district court failed to make clear that it did not presume that a Guidelines sentence was reasonable. The court mentioned the § 3553(a) factors and acknowledged that it could disregard the Guidelines range reflecting the powder and crack cocaine disparity. However, when it said that adhering to Congress’s judgment would be “prudent,” the court did not say whether such adherence was based on the individual circumstances of defendant’s case. The court’s statement that it was “likely [defendant] will have relief” once Congress reduced the crack-to-powder ratio strongly suggested that the district court believed that an unconstrained application of the § 3553(a) factors would have yielded a lesser sentence. U.S. v. Johnson, 635 F.3d 983 (7th Cir. 2011).
7th Circuit rules 20 years was only possible sentence where death resulted from drug offense. (120) Defendant gave her friend a fentanyl skin patch, and the friend died after ingesting it. The maximum penalty for distributing fentanyl, with no resulting death, was 20 years, with no minimum. 21 U.S.C. § 841(B)(1) (c). However, where death results, the sentence increases to a minimum of 20 years, and a maximum of life in prison. The district court here found that the government had proven by a preponderance of the evidence (but not beyond a reasonable doubt) that death resulted from defendant’s distribution of fentanyl. Nevertheless, the court imposed a 20-year sentence. The Seventh Circuit affirmed, ruling that the 20-year sentence was not only proper, but was the only sentence the district court could impose. A fact that increases the minimum penalty need only be proven by a preponderance of the evidence, so the court’s finding that death resulted from the distribution triggered the mandatory minimum 20-year sentence. However, because the government did not prove this fact beyond a reasonable doubt, the statutory maximum remained at 20 years. U.S. v. Krieger, 628 F.3d 857 (7th Cir. 2010).
7th Circuit holds Booker does not allow § 3582(c)(2) reduction below amended Guideline range. (120) Defendants pled guilty to conspiring to distribute crack and were sentenced at the low end of the advisory Sentencing Guideline range. In July 2008, defendants filed § 3582(c)(2) motions to reduce their sentences based on the retroactive amendments to the crack cocaine Guidelines. Based on the change in the crack quantities and corresponding offense levels, each of the defendants’ base offense levels were reduced by two levels. Defendants asserted that the district court had the authority to consider granting them further sentence reductions, resulting in sentences below their amended Guideline ranges. The Seventh Circuit disagreed, siding with the majority of courts to decide this issue, holding that district courts, in reducing a defendant’s sentence under 18 U.S.C. § 3582(c), cannot reduce a defendant’s sentence below the minimum amended guideline range. U.S. v. Cunningham, 554 F.3d 703 (7th Cir. 2009).
7th Circuit presumes that gun found in trailer where drugs were sold was connected to drug offense. (120) Defendant operated a used-car business. In 2003 and 2004, he sold heroin to a confidential informant in the office trailer of the business. In 2005, police conducted a search of the office trailer and found 409.3 grams of heroin in a safe. During the search, police also found a revolver, but the record did not show where in the office the revolver was found. The Seventh Circuit upheld a § 2D1.1(b)(1) increase for possession of a weapon. Because the government showed possession, the burden shifted to defendant to establish that it was “clearly improbable” that the gun was connected with the drug offense. The fact that employees of the used-car business had access to the trailer and it was not unusual for such employees to carry a gun for their self-protection did not show that that it was clearly improbable that defendant possessed the gun in connection with his drug business. The clearly improbable standard is not unconstitutionally vague. The vagueness doctrine does not apply to the Guidelines, since they do not establish the illegality of any conduct. U.S. v. Idowu, 520 F.3d 790 (7th Cir. 2008).
7th Circuit says prior § 924(c)(1)(C) conviction need not be alleged in indictment or proven at trial. (120) Defendant was convicted of bank robbery and carrying a firearm during the robbery (18 U.S.C. § 924(c)). The district court imposed a mandatory minimum sentence of 25 years under § 924(c)(1)(C) based on a prior § 924(c)(1) conviction. Defendant argued that this was improper because his previous conviction was neither alleged in the indictment nor proven at trial. The Seventh Circuit rejected the argument because the Supreme Court has held that a judge may find that a defendant has a prior conviction to trigger a mandatory minimum sentence, and these facts need not be charged in the indictment or proven to a jury beyond a reasonable doubt. Harris v. U.S., 536 U.S. 545 (2002). Thus, the district court could properly conclude that defendant had been previously convicted under § 924(c)(1) and therefore deserved a 25-year mandatory minimum sentence under that section. U.S. v. Price, 516 F.3d 597 (7th Cir. 2008).
7th Circuit remands so that court can address defendant’s arguments about his mental illness. (120) Defendant pled guilty to one count of bank robbery. He had a history of severe mental illness, and at sentencing, he presented considerable evidence of diminished capacity. He also presented evidence in support of an argument that his criminal history category was overstated, and argued for a below-guideline sentence based on several factors listed in 18 U.S.C. § 3553(a). The district court did not directly address these non-frivolous arguments and sentenced defendant to 50 months of imprisonment, a sentence greater than the government requested. The Seventh Circuit found that remand was required so that the district court could address defendant’s principal, non-frivolous arguments in favor of a lower sentence. The evidence was uncontested that defendant was suffering from delusions and audiory hallucinations at the time he committed the crime. Guideline § 5K2.13 recognizes diminished capacity as a ground for a downward departure. While departures are obsolete in post-Booker sentencing, the district court may apply those departure guidelines by way of analogy in analyzing the § 3553(a) factors. There also was some suggestion in the record that the court considered whether defendant met the legal standard for insanity at the time of the crime. U.S. v. Miranda, 505 F.3d 785 (7th Cir. 2007).
7th Circuit holds that court gave inappropriate weight to guidelines. (120) Defendant pled guilty to one count of possession of child pornography, resulting in a guideline range of 63-78 months. The court imposed a sentence of 63 months. The Seventh Circuit agreed with defendant that, in imposing a guideline sentence, the district court gave too much weight to the guidelines in child pornography cases. The judge emphasized that Congress, by passing the PROTECT Act in 2003, showed an intent to prevent judges from departing from the guidelines in child sex offense cases. The court said that because “Congress has spoken” in this area, favorable evidence offered on defendant’s behalf did not permit the judge to impose a below-guidelines sentence. However, in light of Rita, this approach gave too much weight to the guidelines. The remarks suggested that the judge felt outside constraint on his discretion that he was not free to set aside. U.S. v. Schmitt, 495 F.3d 860 (7th Cir. 2007).
7th Circuit holds that judge’s error in determining drug type and quantity was harmless. (120) In finding defendant guilty of crack conspiracy charges, the jury made no factual findings about either drug type or quantity, because the trial took place before the Supreme Court decided Apprendi. The court initially imposed a 320-month sentence, but on remand the court imposed a harsher sentence of 360 months. Defendant complained that the sentence was invalid because there was neither a jury finding nor an admission on his part about either the drug type or quantity – both necessary to establish the statutory maximum. Without specific findings, he argued that he was entitled to be sentenced to no more than 10 years, the lowest maximum sentence specified in § 841(b) for someone with his criminal history. Because there was ample evidence that defendant could have foreseen the sale of more than 50 grams of cocaine base by members of the conspiracy, the Seventh Circuit ruled that the error was harmless. Failure to prove drug type and quantity to a jury is not the kind of structural error that justifies automatic reversal. U.S. v. Williams, 493 F.3d 763 (7th Cir. 2007).
7th Circuit rejects challenge to sentence for supervised release violation based on alleged Apprendi violation in original sentence. (120) The maximum sentence for a defendant who violates the terms of his supervised release depends on the permissible maximum sentence for the offense for which supervised release was imposed. In 1994, defendant pleaded guilty to drug trafficking, in violation of 21 U.S.C. § 841(b)(1)(A) and was sentenced to 15 years’ imprisonment. The maximum penalty is determined by the quantity of drugs involved in the offense. After violating the terms of his supervised release on his 1994 conviction, defendant argued that drug quantity was not submitted to a jury when he was convicted in 1994 and therefore under Apprendi he actually faced a maximum sentence of five years. On that basis, defendant argued that the maximum sentence for his supervised release violation was one year. The Seventh Circuit held that defendant’s Apprendi rights were not violated in 1994 because he stipulated to the drug quantity involved in his offense and that even if an Apprendi violation occurred, defendant could not raise it in challenging the sentence imposed on his supervised release violation. U.S. v. Flagg, 481 F.3d 946 (7th Cir. 2007).
7th Circuit finds Apprendi error at drug-trafficking trial harmless. (120) Defendant was tried for drug-trafficking offenses prior to the Supreme Court’s decision in Apprendi. At trial, the jury was not asked to determine the drug quantity involved in defendant’s offense. At sentencing, defendant objected that he could not be sentenced under 21 U.S.C. § 841(b) based on drug quantity findings made by the district court, but the court rejected that argument and made drug quantity findings. In defendant’s first appeal, the Seventh Circuit held that the district court’s Apprendi error in sentencing defendant based on its own drug quantity findings did not rise to the level of plain error, but it remanded to allow the district court to correct other sentencing errors. In his appeal from the resentencing, defendant argued that he had preserved the Apprendi error by objecting at sentencing. Without resolving the question whether defendant’s objection preserved his claim of Apprendi error, the Seventh Circuit held that the failure to require the jury to make drug quantity findings was harmless error because the evidence of drug quantity at trial was overwhelming. U.S. v. Mansoori, 480 F.3d 514 (7th Cir. 2007).
7th Circuit holds that mandatory add-on sentence did not justify reduction in sentence for underlying offense. (120) Defendant pled guilty to bank robbery and using a firearm in a crime of violence. Eighty-four months was the minimum sentence for the firearm offense if the gun was “brandished,” § 924(c)(1)(A)(ii), and a section § 924(c)(1) sentence cannot be made to run concurrently with any other sentence. § 924(c)(1)(D). The minimum guideline sentence for a bank robbery that did not involve the use of a gun was 46 months, and when the consecutive 84-month sentence required by § 924(c)(1) was tacked on, the total was 130 months. The district court found a 130-month sentence was “unreasonable” and contrary to § 3553(a). Because the court had no authority to alter the 84-month sentence, it sentenced defendant to one month for the bank robbery and the statutorily required consecutive 84 months on the weapons charge. The Seventh Circuit reversed the sentence, holding that the mandatory add-on sentence for using a firearm during a crime of violence or drug crime could not be used to justify a reduction of sentence for the underlying crime. Booker does not give judges authority to disregard statutes. The judge also was not permitted to second-guess the government’s decision to charge a violation of § 924(c)(1). The judge should have picked a sentence for the bank robbery without regard for the fact that a gun had been used in it, and then tacked on 84 months. U.S. v. Roberson, 474 F.3d 432 (7th Cir. 2007).
7th Circuit holds that judge understood discretion to impose non-guideline sentence. (120) Defendant argued that the district court did not understand the advisory nature of the guidelines, and improperly disregarded defendant’s appeal for judicial clemency on behalf of his son. He noted that the judge imposed a sentence at the bottom end of the guideline range. The Seventh Circuit found no error. The court followed the procedures outlined in U.S. v. Rodriguez-Alvarez, 425 F.3d 1041 (7th Cir. 2005) for imposing a sentence post-Booker. Defendant’s relationship with his son was discussed extensively at the hearing. The judge considered defendant’s relationship with his son in calculating his sentence and imposed a sentence at the low end of the guideline range. In response to defendant’s claim that his sentence should be even shorter, the judge indicated that even if she reduced his sentence, she would not be sending defendant home to his son. This indicated that the judge understood that she had the authority to impose a sentence lower than the minimum guideline sentence. The panel had no doubt that the judge understood her discretion to take the full range of § 3553(a) factors into account. U.S. v. Stitman, 472 F.3d 983 (7th Cir. 2007).
7th Circuit remands because judge appeared to misunderstand his post-Booker discretion. (120) Defendant was convicted of being a felon in possession of a firearm. At sentencing, defendant argued for a sentence below the 41-51 month guideline range, arguing that his previous convictions had occurred 14 years earlier, he had not engaged in any criminal conduct since, and under the government’s theory of the case, he possessed the gun for protection, not for any criminal purpose. In imposing a 41-month sentence, the judge said that he was “imposing the lowest sentence I can and I would impose a lower one if I could.” The judge further commented that he could not depart on the basis of an overstated criminal, explaining that “[t]his is a case where I don’t have the authority.” The Seventh Circuit found it unclear whether the judge properly took its post-Booker discretion into account, and remanded for resentencing. Defendant’s sentencing hearing took place relatively soon after Booker, and it appeared that the court believed its discretion was still cabined by pre-Booker departure jurisprudence. U.S. v. Mancari, 463 F.3d 590 (7th Cir. 2006).
7th Circuit holds that court cannot base sentence on rejection of guidelines’ crack/ powder cocaine ratio. (120) Defendant pled guilty to distribution of and possession with intent to distribute cocaine base. See 21 U.S.C. § 841(a)(1). The court expressed concern with the 100:1 sentencing ratio of crack to powder cocaine in the guidelines. Concluding that the rationale for the 100:1 ratio was based on assumptions that no longer were accepted, the district court used a 20:1 ratio, noting that this was the ratio recommended by the Sentencing Commission. The Seventh Circuit held that the district court erred as a matter of law when it sentenced defendant based on a crack-to-powder range other than 100:1. The court did not articulate why this ratio was more appropriate than any other ratio for defendant. Instead, it simply disagreed with the legislative facts upon which Congress had based its judgment. A court cannot simply substitute its own ratio for the 100:1 ratio. U.S. v. Jointer, 457 F.3d 682 (7th Cir. 2006), cert. granted, judgment vacated by Jointer v. U.S., 552 U.S. 1090, 128 S.Ct. 855 (2008).
7th Circuit holds that court cannot base sentence on rejection of guidelines’ crack/ powder cocaine ratio. (120) Defendant pled guilty to distribution of and possession with intent to distribute cocaine base. See 21 U.S.C. § 841(a)(1). The court expressed concern with the 100:1 sentencing ratio of crack to powder cocaine in the guidelines. Concluding that the rationale for the 100:1 ratio was based on assumptions that no longer were accepted, the district court used a 20:1 ratio, noting that this was the ratio recommended by the Sentencing Commission. The Seventh Circuit held that the district court erred as a matter of law when it sentenced defendant based on a crack-to-powder range other than 100:1. The court did not articulate why this ratio was more appropriate than any other ratio for defendant. Instead, it simply disagreed with the legislative facts upon which Congress had based its judgment. A court cannot simply substitute its own ratio for the 100:1 ratio. U.S. v. Jointer, 457 F.3d 682 (7th Cir. 2006), cert. granted, judgment vacated by Jointer v. U.S., 552 U.S. 1090, 128 S.Ct. 855 (2008).
7th Circuit affirms guideline sentences after Paladino remand. (120) Following a limited remand under U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2006), the sentencing judge indicated that he would have imposed the same sentences had he known the guidelines were advisory. The Seventh Circuit affirmed the sentences because it was unpersuaded by the defendants’ arguments that the judge failed to exercise his discretion, and the sentences were reasonable. A fair reading of the judge’s response made clear that he reviewed each defendant’s sentence again “in light of all of the § 3553(a) factors,” and he explained for each individual defendant why he believed the guidelines’ sentence was appropriate. The sentences, which fell within the properly calculated guideline range, were presumptively reasonable. None of the defendants rebutted this presumption by demonstrating that their sentence were unreasonable when measured against the factors set forth in § 3553(a). U.S. v. Spano, 447 F.3d 517 (7th Cir. 2006).
7th Circuit rejects downward variance intended to reconcile sentence with that received by more culpable co-conspirator. (120) Defendant was involved with Wilkerson in a conspiracy to travel across state lines with the intent to engage in sexual conduct with a minor. Wilkerson was the one who made contact with the minors. The guideline range for defendant was 108-135 months, but the district court found that a sentence of 60 months was appropriate. The court expressed concern that defendant’s sentence be reconciled with the 68-month sentence provided to Wilkerson, who was the primary actor in the offense. However, Wilkerson pled guilty to the offenses and cooperated with the government in its prosecution of defendant. The Seventh Circuit remanded for resentencing. The comparison of co-defendants is not a proper application of the § 3553(a) mandate that a court minimize unwarranted disparities in sentences. Here, Wilkerson’s lower sentence was attributable to his decision to plead guilty and cooperate with the government. The corresponding reduction in his sentence as compared to a non-cooperating defendant is not an “unwarranted” disparity. Moreover, § 3553(a)’s concern with sentence disparity is not one that focuses on differences among defendants in an individual case, but is concerned with unjustified differences across judges or districts. U.S. v. Pisman, 443 F.3d 912 (7th Cir. 2006).
7th Circuit excises section of sentencing statute requiring guideline range sentence for child sex crimes. (120) Defendant pled guilty to possession of child pornography. He requested a downward departure based on a number of mental and personal problems. Although the court acknowledged that Booker and other cases “no longer technically [made] the guidelines mandatory, it found that the PROTECT Act and the Feeney Amendment “virtually prohibit judges from departing from the otherwise applicable Sentencing Guidelines” See 18 U.S.C. §3553(b)(2)(ii). The court held it was “obliged to impose the minimum sentence under the guidelines.” The Seventh Circuit, following the Second Circuit in U.S. v. Selioutsky, 409 F.3d 114 (2d Cir. 2005) and the Tenth Circuit in U.S. v. Yazzie, 407 F.3d 1139 (10th Cir. 2005), held that §3553(b)(2) violates the Sixth Amendment. The objections listed by the Supreme Court in Booker to §3553(b)(1) also apply to §3553(b)(2). U.S. v. Grigg, 442 F.3d 560 (7th Cir. 2006).
7th Circuit holds that full resentencing is required whenever original sentencing judge is not available to conduct limited remand. (120) The Seventh Circuit previously ordered a limited remand pursuant to U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2006), for the district judge to state whether it would have imposed the same sentences had it understood that the guidelines were advisory. On remand, the original sentencing judge recused himself, and the case was reassigned to a different district judge. The Seventh Circuit held that a full resentencing hearing is required whenever the original sentencing judge is not available to conduct a limited Paladino remand. The only person who can really tell the appellate court whether he would have imposed the same sentence based on the facts and evidence of a particular case is the original sentencing judge. Vacating defendants’ sentences and remanding for a new sentencing hearing allows the newly assigned judge to proceed with a clean slate. This procedure is applicable whenever the original sentencing judge is unavailable to carry out a remand from the appellate court in accordance with the terms set forth in Paladino, regardless of whether the judge is unavailable due to recusal, retirement, absence, death, sickness or other disability. U.S. v. Bonner, 440 F.3d 414 (7th Cir. 2006).
7th Circuit dismisses appeal because district court lacked subject matter jurisdiction to reduce sentence post-Booker. (120) Defendant pled guilty to drug offenses and was sentenced in November 2004, after the 7th Circuit held that the Sentencing Reform Act of 1984 violated the Sixth Amendment, U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), reversed, 125 S.Ct. 738 (2005) and prior to the Supreme Court’s decision in Booker, 543 U.S. 220 (2005). Following the 7th Circuit’s Booker opinion, the district court announced a 37-month sentence if the guidelines survived, and a 24-month sentence if they did not. The sentence actually imposed was 37 months. Defendant did not appeal, instead waiting until the Supreme Court’s opinion issued, and in February 2005, filed a motion asking the district court to substitute the 24-month term for the 37-month term. The district court denied the motion, stating that the guidelines had survived. Defendant’s current appeal was too late when measured from the date on which his 37-month sentence was imposed. Although the appeal was timely from the order denying defendant’s motion to reduce the sentence to 24 months, the Seventh Circuit held that the district court lacked subject matter jurisdiction over this motion. The district court had no authority to reduce the sentence to 24 months. U.S. v. Smith, 438 F.3d 796 (7th Cir. 2006).
7th Circuit finds no question that court would have imposed same sentence under advisory guidelines. (120) Defendant, a former priest, pled guilty to receiving and possessing child pornography that was transported in interstate commerce. The district court imposed a 240-month sentence under the mandatory guidelines. The Seventh Circuit found remand was not necessary, since there was no question that the judge would have imposed the same sentence under an advisory guideline system. The judge clearly wanted to sentence defendant to the longest possible prison term. The guidelines formula, with its multiple enhancements and upward departures, resulted in a guideline range of 360 months to life. The judge explicitly stated that he was imposing the maximum sentence of consecutive terms of 180 months and then 60 months in order “to produce a combined sentence that is as near as possible to the total punishment allowed under the statute,” i.e. 360 months to life. U.S. v. McCaffrey, 437 F.3d 684 (7th Cir. 2006).
7th Circuit says court erred in sentencing defendant as if guidelines were defunct rather than advisory. (120) At sentencing, which occurred prior to the Supreme Court’s decision in U.S. v. Booker, 543 F.3d 220 (7th Cir. 2005), the district court found that the guidelines could not be constitutionally applied to defendant, and instead sentenced him to 235 months’ imprisonment based on the statutory range. The court also entered an alternative sentence of 210 months in the event the Supreme Court upheld the guidelines. The Seventh Circuit remanded for resentencing, agreeing with defendant that because after Booker the guidelines are still advisory, the district court erred in disregarding the guidelines entirely. The error was not harmless. The situation was distinguishable from U.S. v. George, 403 F.3d 470 (7th Cir. 2005), where the guideline range dictated a higher sentence than the one imposed. Finally, the record also did not show that the court considered the guidelines as advisory when setting the 235-month sentence. While the court might have sentenced defendant to 235 months in prison had it known the guidelines were advisory, there was no basis for making this conclusion. A higher standard of proof is required for the conclusion that an error was harmless. U.S. v. Gokey, 437 F.3d 622 (7th Cir. 2006).
7th Circuit holds that on Paladino remand, district court is not required to hold hearing. (120) The Seventh Circuit originally remanded the case to the district court pursuant to U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005) to allow the court to determine whether it would reimpose the original sentence in light of U.S. v. Booker, 543 U.S. 220 (2005). The district court, after considering the position papers filed by both parties, issued a brief order indicating that it would have imposed the same sentence. The Seventh Circuit held that the district court was not required to hold a sentencing hearing or offer reasons for its decision not to hold a hearing. Through the parties’ written submissions, the court was aware of the § 3553(a) sentencing factors that the parties believed were potentially most relevant to how the court might exercise its discretion under Booker. Although some district judges have elected to hold hearings before deciding whether they would sentence a particular defendant differently in light of Booker, they are not U.S. v. Della Rose, 435 F.3d 735 (7th Cir. 2006).
7th Circuit looks at current version of § 2G2.2 to determine that upward departure was reasonable. (120) Defendant pled guilty to three child pornography charges. The district court, finding the images the most shocking he had seen in 16 years, departed upward from a range of 70 to 87 months to a sentence of 236 months. The judge (1) added the equivalent of four levels to account for defendant’s possession of 42 images of children engaged in bestiality; (5) added the equivalent of five levels for the number of images in defendant’s possession (4,638); and (3) increased defendant’s criminal history category from I to II to account for additional uncharged criminal conduct. The Seventh Circuit affirmed. “[A]fter Booker, what is at stake is the reasonableness of the sentence, not the correctness of the ‘departures’ as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory.” Although defendant’s sentence was substantially longer than the guidelines range under § 2G2.2 as it existed when he committed his crimes, § 2G2.2 has since been amended twice to increase the punishment for trafficking in child pornography. Viewing the current version of § 2G2.2 as one benchmark to gauge the reasonableness of defendant’s sentence, the 236-month sentence defendant received would fall within the advisory range instead of substantially above it, and thus would be presumptively reasonable. Given the reasons for departure, a sentence of this length was amply justified. U.S. v. Johnson, 427 F.3d 423 (7th Cir. 2005).
7th Circuit holds that 57-month guideline sentences for firearms offenses were reasonable. (120) Defendant was convicted of possessing an unregistered short-barreled rifle and possessing a firearm with an obliterated serial number. The Seventh Circuit ordered a limited remand to the district court for proceedings consistent with U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005). The district judge issued an order advising the court that he would have imposed an identical sentence had he known that the Sentencing Guidelines were advisory. The Seventh Circuit affirmed the concurrent 57-months as reasonable. The sentences fell within the properly calculated guideline range and thus were presumptively reasonable, a presumption that defendant did not attempt to rebut. Moreover, defendant’s sentences lay in the middle of the proper guideline range, and reflected the court’s consideration of a number of the factors in 18 U.S.C. § 3553(a), including defendant’s four prior convictions, the fact he was on probation at the time of the offense, and his failure to accept responsibility. U.S. v. Hite, 425 F.3d 365 (7th Cir. 2005).
7th Circuit looks to pre-Booker law by analogy to examine reasonableness of sentence well above advisory range. (120) Defendant pled guilty to being in the U.S. after deportation. The district court imposed a sentence of 48 months, well above the upper end of his advisory guideline range of 15-21 months. To evaluate the reasonableness of the sentence, the Seventh Circuit looked to pre-Booker law by analogy. If the appeal had been decided pre-Booker, the panel would have found that the 48-month sentence was not adequately tied to the structure of the guidelines. However, under post-Booker, all that is necessary to sustain a sentence above the guideline range is “an adequate statement of the judge’s reasons consistent with § 3553(a) for thinking the sentence he has selected is indeed appropriate for the particular defendant.” The district court could not meet this standard. The court mentioned only defendant’s criminal history. However, the analogy to § 4A1.3 did not fully explain the 48-month sentence. Because the sentence was more than double the high end of the guideline range, the court’s explanation was not sufficiently compelling. U.S. v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005).
7th Circuit says court under limited Paladino remand properly excluded post-sentencing factors. (120) On a limited remand in accordance with U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), defendants argued that they should be resentenced because of the extraordinary progress they had both made while incarcerated. The district judge found that if he had known at the time of sentencing that the guidelines were merely advisory, he would have imposed the same sentences because of the seriousness of the violent crimes committed by defendants. The purpose of a limited remand under Paladino is to decide whether the court committed plain error when it originally sentenced the defendants. Thus, the Seventh Circuit found that the judge correctly excluded post-sentencing events and conduct and determined that it would have imposed the same sentence. Therefore, there was no prejudice, no plain error, and the original sentence stood. The panel would only review the sentence for reasonableness. A sentence properly calculated under the guidelines is entitled to a presumption of reasonableness. U.S. v. Re, 419 F.3d 582 (7th Cir. 2005).
7th Circuit affirms that court can still consider acquitted conduct post-Booker. (120) The Seventh Circuit ordered a limited remand to the district court under U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005). The district court found for sentencing purposes that one defendant was a member of the conspiracy despite the fact that the jury acquitted him on the conspiracy charge. In U.S. v. Watts, 519 U.S. 148 (1997), the Supreme Court held that a court is permitted to consider a broad range of information for sentencing purposes, including conduct related to charges of which the defendant was acquitted. The Seventh Circuit joined all of other circuits that have confronted the issue in holding that the Supreme Court’s holding in Watts remains the law after Booker. See, e.g. U.S. v. Magallanez, 408 F.3d 672 (10th Cir. 2005). U.S. v. Price, 418 F.3d 771 (7th Cir. 2005).
7th Circuit says sentence within properly calculated guideline range has rebuttable presumption of reasonableness. (120) Defendant was convicted of drug charges, and was sentenced under the then-mandatory guidelines to 150 months in prison. The Seventh Circuit affirmed defendant’s conviction in April 2005, but ordered a limited remand under U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005) to the district court to see whether it was inclined to change the sentence now that it was clear that the Sentencing Guidelines are advisory only. The district court advised the appellate court that it would not change the sentence imposed. The Seventh Circuit ruled that the sentence was reasonable, holding that any sentence that is properly calculated under the guidelines is entitled to a rebuttable presumption of reasonableness. U.S. v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).
7th Circuit says sentencing judge is not required to expressly discuss all § 3553(a) factors. (120) Defendant was entitled to be resentenced in accordance with U.S. v. Booker, 543 U.S. 220 (2005). He argued that at resentencing, the judge was required to make an explicit, articulated analysis of all of the sentencing factors mentioned in § 3553(a), whether or not he invoked them. The Seventh Circuit disagreed. The judge can discuss the application of the statutory factors to the defendant not in checklist fashion but instead in the form of an adequate statement of the judge’s reasons, consistent with § 3553(a), for choosing a particular sentence. Judges “need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.” The farther the judge’s sentence departs from the guidelines sentence, the more compelling the justification based on § 3553(a) factors the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed. U.S. v. Dean, 414 F.3d 725 (7th Cir. 2005).
7th Circuit says Booker and Blakely do not affect imposition of statutory minimum sentence. (120) Defendant was convicted of firearms charges under 18 U.S.C. § 924(c)(1) (a). The district court found that the gun used by defendant was a machine gun, subjecting him to a 30-year mandatory minimum. See § 924(c)(1) (B)(ii). The Seventh Circuit rejected defendant’s argument that Booker and Blakely required the vacation of his sentence. Nothing in Booker or Blakely suggested that the Court reconsidered, much less overruled, Harris v. U.S., 536 U.S. 545 (2002). U.S. v. Duncan, 413 F.3d 680 (7th Cir. 2005).
7th Circuit makes limited remand for district court to determine whether it would impose same sentence under advisory guidelines. (120) Defendant argued that the district court violated his Sixth Amendment rights when it determined that the gun he possessed was stolen and enhanced his offense level under § 2K2.1(b) (4). However, the error was not in consulting the guidelines and making findings to the pertinent guidelines factors, but in applying the guidelines in a mandatory fashion. See U.S. v. Booker, 543 U.S. 220 (2005). Since defendant did not raise a Sixth Amendment issue below, the Seventh Circuit reviewed for plain error. Following its decision in U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), the panel remanded for the limited purpose of determining whether the district court would be inclined to sentence to the same or a longer term knowing that it had broader discretion after Booker. U.S. v. Williams, 410 F.3d 397 (7th Cir. 2005).
7th Circuit holds that court did not plainly err in making findings on defendant’s criminal history. (120) Defendant’s criminal history affected the calculation of his sentence range in two ways. First, the finding that his prior convictions were for crimes of violence resulted in a higher offense level under § 2K2.1(a)(2). Second, the nature and extent of his prior criminal history placed him in the highest criminal history category. Defendant argued that unless admitted by a defendant, the fact and nature of any prior convictions that expose him to a higher penalty must be determined by a jury rather than the sentencing judge. The Seventh Circuit disagreed, noting that the Supreme Court has so far excluded a defendant’s criminal history from the range of facts that must, if not admitted, be proven to a jury before the defendant is subject to increased penalties. See Almendarez-Torres v. U.S., 523 U.S. 224 (1998). The Court’s opinions in Apprendi, Blakely and Booker have left the holding of Almendarez-Torres undisturbed. The district court did not plainly err in making findings with respect to defendant’s criminal history. U.S. v. Williams, 410 F.3d 397 (7th Cir. 2005).
7th Circuit remands where court used facts not admitted by defendant or found by jury to determine drug quantity. (120) Defendant argued that the court erred by enhancing his sentence based on a factual finding made solely by the sentencing judge with respect to the purity and quantity of methamphetamine involved in his offenses. The jury found defendant guilty of offenses involving 600 grams or more of plain old “methamphetamine” – not “methamphetamine (actual) or “Ice.” The district court found by a preponderance of the evidence that the actual weight of the charged mixtures was 878.8 grams (based on uncontested results of government lab analysis) and that 91 percent of those mixtures, or 799.7 grams, constituted “methamphetamine (actual).” The Seventh Circuit agreed that the court’s use of supplemental facts not admitted by defendant or proven to the jury beyond a reasonable doubt violated the Sixth Amendment, as interpreted by U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Macedo, 406 F.3d 778 (7th Cir. 2005).
7th Circuit holds that indictment’s incorrect designation of drug schedule did not cause Apprendi violation. (120) In the indictment, the government mislabeled methamphetamine as a schedule III drug, rather than correctly labeling it a schedule II drug. The Seventh Circuit held that the incorrect labeling did not implicate Apprendi v. New Jersey, 530 U.S. 466 (2000). The indictment listed the specific drug and quantity charged and the jury found him guilty of conspiring to import, possess and attempt to possess a specific drug type and amount. The special verdict form properly tracked the relevant language of § 841(b)(1). The use of this form satisfied Apprendi in that the drug type and amount sufficient to trigger the higher statutory maximums were found by the jury beyond a reasonable doubt. U.S. v. Macedo, 406 F.3d 778 (7th Cir. 2005).
7th Circuit holds defendant is not entitled to have jury determine whether prior conviction was crime of violence. (120) A jury convicted defendant of being a felon in possession of a firearm. The district court found that his prior robbery conviction was a crime of violence, and he received an enhanced offense level under § 2K2.1(a)(4) (A). Defendant argued that under U.S. v. Booker, 543 U.S. 220 (2005), the jury should have evaluated the nature of his prior conviction. The Seventh Circuit found Booker inapplicable. First, Booker excludes any fact “other than a prior conviction.” Criminal history is governed by Almendarez-Torres v. U.S., 5234 U.S. 224 (1998). Moreover, even if the court were to overturn Almendarez-Torres and eliminate the prior conviction exception, defendant could not benefit. He waived any claim under the Sixth Amendment when he took advantage of other caselaw to prevent the jury from learning details about his prior conviction. See Old Chief v. U.S., 519 U.S. 172 (1997). A defendant cannot insist during trial that the jury be kept in ignorance yet demand after its end that he receive a lower sentence because the jury did not pass on the very issue that had been withheld at his request. U.S. v. Lewis, 405 F.3d 511 (7th Cir. 2005).
7th Circuit holds that error in sentencing defendant as career offender under mandatory guideline system was not harmless. (120) Defendant argued that the district court violated the Sixth Amendment by sentencing him as a career offender without presenting the facts underlying his prior convictions to a jury. He also contended that under U.S. v. Booker, 543 U.S. 220 (2005), the district court erred in applying the guidelines under the prior mandatory sentencing scheme. The Seventh Circuit found no Sixth Amendment violation in the court’s finding that he was a career offender. The use of defendant’s prior convictions did not violate Booker – the Almendarez-Torres exception for prior convictions still stands. Nonetheless, defendant’s argument that the court erred in applying the guidelines in a mandatory manner had merit. Defendant’s sentence must be vacated because the error was not harmless. The fact that the court made a three-level downward departure for substantial assistance did not mean the court would necessarily be unwilling to further lower defendant’s sentence. The government failed to meet its burden of showing the error did not affect defendant’s sentence. U.S. v. Schlifer, 403 F.3d 849 (7th Cir. 2005).
7th Circuit examines guideline issues before issuing limited Booker remand. (120) Before remanding defendant’s case to the district court to determine if it would have imposed the same sentence had it realized that the Sentencing Guidelines were advisory only, U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), the Seventh Circuit examined the guideline issues defendant raised to guide the district court’s deliberations. The district court applied a § 2D1.1(b) (1) weapon increase based on a gun found under the mattress in defendant’s bedroom and the gun she kept in her purse. Defendant was selling drugs out of the house, and displayed a firearm to a co-conspirator to intimidate him. The panel saw “no clear error in these factual findings, whatever their relevance may be to the ultimate sentence.” The obstruction of justice increase found the most support in the record. The district court found that defendant lied when she testified that she had no knowledge of the drug trafficking conspiracy. However, the jury verdict contradicted this assertion. The court also found that defendant lied when she said that the drug ledger did not belong to her, and when she claimed that she was not acting as a lookout for a drug sale. The jury’s findings strongly contradicted these assertions. U.S. v. Parra, 402 F.3d 752 (7th Cir. 2005).
7th Circuit makes limited Booker remand. (120) Defendant raised for the first time on appeal a claim that his sentence was unconstitutional under U.S. v. Booker, 543 U.S. 220 (2005). Following its decision in U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), the Seventh Circuit ordered a limited remand to permit the sentencing judge to determine whether he would, if required to resentence, reimpose his original sentence. If so, there was no prejudice, and defendant could not meet the plain error standard. The panel will still review the sentence for reasonableness. If the judge decided that with more discretion, the sentence would have been different, the panel will vacate and remand for resentencing. U.S. v. Melendez, 401 F.3d 851 (7th Cir. 2005).
7th Circuit remands to determine whether judge would have imposed same sentence under Booker. (120) Defendants argued for the first time on appeal that their sentences were improper under U.S. v. Booker, 543 U.S. 220 (2005). All three defendants received sentences mandated by the guidelines and increased on the basis of facts found by the judge, not the jury. Therefore, their sentences were imposed under a sentencing scheme that was unconstitutional, their sentences were imposed in error, and the error was plain. U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005). The appellate court could not determine whether defendants would have received the same sentences under the discretion given by Booker. Because the “only practical way … to determine whether the kind of plain error argued in these cases has actually occurred is to ask the district judge,” the panel followed Paladino and ordered a limited remand to permit the sentencing judge to determine whether he would reimpose the same sentence. U.S. v. Spano, 401 F.3d 837 (7th Cir. 2005).
7th Circuit orders limited remand to determine if court would have imposed same sentence under advisory scheme. (120) Defendants were convicted of conspiring to commit extortion. They contended for the first time on appeal that their sentences were imposed in violation of the Sixth Amendment as clarified by Booker, and that their sentences should be vacated. The Seventh Circuit ordered a limited remand to permit the sentencing judge to determine whether he would re-impose the original sentence. See U.S. v. Paladino, 401 F.3d 471 (7th Cir. Feb. 2005). If the court determines that it would have imposed the same sentence, there is no prejudice and thus no plain error, but the sentence will still be reviewed for reasonableness. If the sentencing judge determines that he would have imposed different sentences under the Booker standard, the panel will vacate the original sentences and remand the case for resentencing. U.S. v. Re, 401 F.3d 828 (7th Cir. 2005).
7th Circuit to perform limited Booker remands for sentencing judge to determine if he would reimpose same sentence. (120) The government conceded that various sentencing enhancements violated the Sixth Amendment as interpreted by U.S. v. Booker, 543 U.S. 220 (2005), because in all of them the judge enhanced the sentences on the basis of facts not determined by the jury. At issue was whether the errors constituted plain errors. The Seventh Circuit, agreeing with the Second Circuit’s analysis in U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005), held that in Booker cases in which it is difficult for the appellate court to determine whether the error was prejudicial, the proper remedy is to order a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence. If so, the appellate court will affirm the original sentence against a plain-error challenge provided that the sentence is reasonable. If the judge states that he would have imposed a different sentence had he known the guidelines were advisory, the appellate court will vacate the original sentence and remand for resentencing. In deciding whether or not it would adhere to the original sentence, the district judge should obtain the views of counsel, but need not require the presence of the defendant. The appellate court will retain jurisdiction throughout the limited remand. U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005).
7th Circuit says remand unnecessary where judge wanted to impose higher sentence than permitted under pre-Booker law. (120) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Although the guideline range was 168-210 months, the judge imposed a sentence of 120 months, the statutory maximum, and expressed frustration at his inability to impose a higher sentence. Defendant argued for the first time on appeal that, under U.S. v. Booker, 543 U.S. 220 (2005), the district court violated the Sixth Amendment by making findings that established the presumptive guidelines range. The Seventh Circuit ruled that defendant could not establish that any error affected his substantial rights, and therefore he could not meet the plain error test. Under U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), issued the same day, a remand is necessary only when uncertainty otherwise would make it unclear what the district judge would have done with additional discretion. Here, the judge expressed a strong preference to impose a higher sentence if he could do so. The actual sentence imposed was well below the guidelines range, and was limited by the statutory maximum. None of defendant’s substantial rights were adversely affected by the judge’s application of pre-Booker law. U.S. v. Lee, 399 F.3d 864 (7th Cir. 2005).
7th Circuit decides guideline issues in the event Supreme Court decides Blakely does not invalidate guidelines. (120) In U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), reversed, 125 S.Ct. 738 (2005), the Seventh Circuit held that the Supreme Court’s decision in Blakely v. Washington, 124 S.Ct. 2531 (2004), was applicable to the federal Sentencing Guidelines, thus calling into question the constitutional validity of the guidelines. Here, while Blakely and Booker necessitated remand because defendant was sentenced in accordance with the guidelines, the Seventh Circuit nonetheless addressed defendant’s arguments under the guidelines relating to loss calculations and upward departures. The panel did so “in the interest of judicial economy in the event the Supreme Court may subsequently decide some other fate for the federal guidelines than that indicated in Booker.” U.S. v. Schaefer, 384 F.3d 326 (7th Cir. 2004).
7th Circuit refuses to recall mandate in light of Blakely. (120) Defendant asked the appellate court to recall the mandate in his direct criminal appeal in light of Blakely v. Washington, 124 S.Ct. 2531 (2004) and U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), reversed, 125 S.Ct. 738 (2005). The Seventh Circuit ruled that defendant failed to set forth any reason to justify recalling the mandate. Following his direct appeal, defendant filed a motion pursuant to 28 U.S.C. § 2255, which the district court dismissed with prejudice. Defendant did not seek permission to take an appeal from this decision. Motions to recall the mandate in a direct criminal appeal cannot be used to avoid the successive petition restrictions of 28 U.S.C. § 2255. Thus, the mandate could only be recalled if the court would authorized a second or successive collateral attack under 28 U.S.C. § 2244(b) and § 2255. That was not the case here. Even if the Supreme Court announced a new constitutional rule in Blakely and defendant’s sentence violated that rule, defendant’s claim was premature. The Supreme Court has not made the Blakely rule applicable to cases on collateral review as required by § 2244(b)(2)(A) and § 2255. U.S. v. Ford, 383 F.3d 567 (7th Cir. 2004).
7th Circuit remands where court used jury findings from co-defendant’s trial. (120) The district court found that the $11 million investment fraud proved during the trial of co-defendants should be considered relevant conduct at defendant’s sentencing. This ruling resulted in a 15-level sentencing enhancement. The Seventh Circuit found that this ran afoul of Blakely v. Washington, 124 S.Ct. 2531 (2004) as interpreted by U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), reversed, 125 S.Ct. 738 (2005). Although the judge based his findings on the jury’s verdict from the co-defendant’s trial, which was beyond a reasonable doubt, he still had to make additional factual findings that went beyond defendant’s admitted conduct. The panel did not determine whether it is proper under Blakely to use jury findings from a co-defendant’s trial at all for sentencing purposes. The judge went beyond the verdict here and made additional findings that significantly raised defendant’s sentence. U.S. v. Loutos, 383 F.3d 615 (7th Cir. 2004).
7th Circuit holds that Blakely does not apply to forfeiture proceedings. (120) Relying on Blakely, defendant argued that the court used the wrong burden of proof for his forfeiture proceedings – a preponderance of the evidence standard as opposed to the beyond a reasonable doubt standard. The Seventh Circuit rejected this argument, concluding that Blakely, like Apprendi, does not apply to forfeiture proceedings. This circuit has previously held that Apprendi has no effect on criminal forfeiture proceedings because forfeiture provisions have no statutory maximum. U.S. v. Vera, 278 F.3d 672 (7th Cir. 2002). Apprendi’s statutory maximum is found in the statute of conviction; Blakely’s is found in the Sentencing Guidelines. However, the criminal forfeiture provisions in the guidelines do not include a statutory maximum; they are open ended in that all property representing proceeds of illegal activity is subject to forfeiture. U.S.S.G. § 5E1.4. U.S. v. Messino, 382 F.3d 704 (7th Cir. 2004).
7th Circuit continues to remand for resentencing in light of Blakely. (120) Defendant challenged several enhancements to his sentence based upon the district judge’s factual findings. In U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), reversed, 125 S.Ct. 738 (2005), the Seventh Circuit held that the federal Sentencing Guidelines violate the Sixth Amendment in light of Blakely v. Washington, 124 S.Ct. 2531 (2004). As it did in U.S. v. Singletary, 379 F.3d 425 (7th Cir. 2004) and U.S. v. Ohlinger, 377 F.3d 785 (7th Cir. 2004), the Seventh Circuit remanded for resentencing in light of Booker. U.S. v. Shearer, 379 F.3d 453 (7th Cir. 2004).
7th Circuit finds sentence violates Sixth Amendment under Blakely as interpreted by Booker. (120) Defendant argued that the court erred by imposing a sentencing enhancement for his 1983 conviction for committing a crime against a child under the age of 14, and for departing upward based on the judge’s finding that defendant’s criminal history was overstated. The Seventh Circuit noted that its decision in U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), reversed, 125 S.Ct. 738 (2005), called into doubt the constitutionality of the U.S. Sentencing Guidelines. Under Blakely, as interpreted by Booker, a defendant has the right to have a jury decide factual issues that will increase the defendant’s sentence. The district judge made several factual findings and used these findings to support sentence enhancements for distributing pornographic images with the expectation of receiving other images and engaging in a pattern of activity involving the sexual abuse of minors. The panel remanded for resentencing in light of Booker. U.S. v. Ohlinger, 377 F.3d 785 (7th Cir. 2004).
7th Circuit says Apprendi not violated where sentence did not exceed statutory maximum. (120) Courts have generally held that Apprendi v. New Jersey, 530 U.S. 466 (2000) does not affect the application of the Sentencing Guidelines as long as the sentence imposed is within the statutory maximum. See, e.g., U.S. v. Knox, 301 F.3d 616 (7th Cir. 2002). Defendant requested the Seventh Circuit to reconsider this issue in light of the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). Ring held that, under Apprendi, additional facts increasing a statutory maximum from life imprisonment to death must be submitted to the jury and proven beyond a reasonable doubt. Defendant contended that Ring’s discussion of the Sentencing Guidelines analyzed the guidelines as “laws” within the meaning of Apprendi, even though those adjustments are not expressed as elements of the criminal offense. The Seventh Circuit held that Ring did not conflict with its precedent holding that the guidelines should be treated as rules rather than statutes. Facts affecting sentencing determinations need not be determined by a jury as long as the sentence imposed does not exceed the maximum penalty set forth in the statute. U.S. v. Johnson, 335 F.3d 589 (7th Cir. 2003).
7th Circuit upholds imposition of maximum and consecutive sentences. (120) Defendant received a 110-year sentence for his convictions for mail and wire fraud, arson, and felony by fire. The district court reached this sentence by imposing the maximum sentence of five years on each of 16 counts of fraud, and made the sentences run consecutively, for a total of 80 years, and consecutively as well to the 20-year sentence for arson and a 10-year sentence for using fire in a felony. The Seventh Circuit affirmed. Section 5G1.2(d) directs the judge, when there are multiple counts of conviction, to impose maximum and consecutive sentences to the extent necessary to make the total punishment equal in severity to what the guidelines would require were it not for the statutory maximum. Because defendant’s crime spree included murder as well as attempted murder, multiple arsons, and multiple frauds, the guideline sentence would have been life. Because none of defendant’s sentences exceeded a statutory maximum, the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000) was not violated. U.S. v. Veysey, 334 F.3d 600 (7th Cir. 2003).
7th Circuit says predicate career offender crimes need not be determined by jury. (120) Defendant, convicted of being a felon in possession of a firearm, was sentenced under 18 U.S.C. § 924(c), the Armed Career Criminal Act, based on prior convictions for three unrelated violent felonies. He argued that Apprendi v. New Jersey, 530 U.S. 466 (2000) required a jury, not the district court, to determine whether the maximum statutory penalty for his offense should be increased from 10 years to life imprisonment based on his criminal history. The Seventh Circuit found this argument foreclosed by case law holding that recidivism to enhance a sentence is a traditional sentencing factor and therefore determined by the court and not by the jury. See, e.g. U.S. v. Morris, 293 F.3d 1010 (7th Cir. 2002); U.S. v. Thomas, 280 F.3d 1149 (7th Cir. 2002); U.S. v. Skidmore, 254 F.3d 635 (7th Cir. 2001). See also U.S. v. Almendarez-Torres, 523 F.3d 224 (1998). U.S. v. Hendricks, 319 F.3d 993 (7th Cir. 2003).
7th Circuit holds that federal drug statute still constitutional after Apprendi. (120) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that factors which subject a defendant to an enhanced penalty, except prior felony convictions, are elements of the crimes that must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. Defendants argued that because 21 U.S.C. § 841 neither sets forth this burden of persuasion nor allocates which issues should be decided by a jury or a judge, it is unconstitutional. The Seventh Circuit noted that it had previously rejected this argument in U.S. v. Brough, 243 F.3d 1078 (7th Cir. 2001). The panel refused to reconsider its previous decision. Although a Ninth Circuit panel held that § 841 was unconstitutional, U.S. v. Buckland, 259 F.3d 1157 (9th Cir. 2001), the Ninth Circuit, sitting en banc, reversed the panel decision and upheld the constitutionality of § 841. U.S. v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc). Moreover, every other circuit to consider the issue has concluded that § 841 remains constitutional after Apprendi. U.S. v. Arocho, 305 F.3d 627 (7th Cir. 2002), superseded on other grounds by guideline as stated in U.S. v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir. 2004).
7th Circuit finds Apprendi error harmless where jury would have found enough drugs to support sentence. (120) Defendant argued for the first time on appeal that his sentence violated Apprendi because the judge, rather than the jury, determined the quantity of drugs involved in his offenses. Under § 841(b)(1)(A), a defendant may be sentenced to life imprisonment if the quantity of crack involved totaled 50 grams or more. While the district court found defendant responsible for 1.5 kilograms of crack and 44.7 grams of heroin, under the plain error standard, the Seventh Circuit needed only to determine whether the evidence presented at trial made clear beyond a reasonable doubt that defendant was responsible for at least 50 grams of crack. At trial, a state police chemist testified that she tested 12 bags of crack, and that six of the bags contained 165.99 grams of a substance containing cocaine base, and that another six bags whose contents weighed 146.94 grams indicated cocaine base. Based on this evidence, the jury convicted defendant of Count 3, which charged him with possession with intent to distribute in excess of 50 grams of crack cocaine. This evidence supporting this conviction made clear beyond a reasonable doubt that had the jury been asked to determine the quantity of drugs involved, it would have held defendant accountable for at least 50 grams of crack. U.S. v. Arocho, 305 F.3d 627 (7th Cir. 2002), superseded on other grounds by guideline as stated in U.S. v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir. 2004).
7th Circuit holds Apprendi error not plain where overwhelming evidence of drug quantity. (120) The district court sentenced defendants to life terms based on its finding that they conspired to distribute more than 150 kilograms of cocaine. Under Apprendi v. New Jersey, 530 U.S. (2000), before a court may sentence a defendant to the life term authorized by § 841(b)(1)(A), the indictment must allege, and a jury must unanimously find, that the offense involved five or more kilograms of cocaine or one kilogram of heroin. In the absence of a jury finding, the default statutory maximum is the 20-year maximum in § 841(b)(1)(C). The district court here erred in imposing any sentence in excess of the default maximum of 20 years. However, because this error was not raised below, the mistake must be “plain” before the defendants were entitled to relief. The Seventh Circuit found that the sentencing error did not affect the fairness, integrity, or public reputation of the proceedings below, and thus was not plain. A properly instructed jury would have found the defendants guilty of distributing the requisite threshold quantities of drugs. The record left no doubt that the conspiracy involved the distribution of far more than five kilograms of cocaine and/or one kilogram of heroin. In view of the evidence, there was no doubt that the jury would have found that the offense involved the threshold amount necessary to authorize prison terms of life. U.S. v. Mansoori, 304 F.3d 635 (7th Cir. 2002).
7th Circuit finds no Apprendi error where defendant stipulated to quantity sufficient to support sentence. (120) State troopers found in the truck defendant was driving 22 bundles of marijuana weighing 314 kilograms. A few weeks later, a crime lab technician found about six kilograms of cocaine concealed inside the marijuana bundles. The grand jury then charged defendant in a superseding indictment with possession with intent to distribute “diverse amounts of illegal controlled substances,” in violation of 21 U.S.C. § 841(a)(1). Defendant argued that because he pled guilty to possession an unspecified amount and type of controlled substance, the district court should have sentenced him under § 841(b)(1)(C), which sets the maximum sentence for an unspecified amount of marijuana at five years, rather than § 841(b)(1)(A), which provides a sentence of five to 40 years for possessing more than 100 kilograms of a substance containing marijuana. Because defendant conceded that he transported 315 kilograms of marijuana, the Seventh Circuit found no Apprendi error. The maximum penalty for transporting at least 100 kilograms of marijuana is 40 years. Defendant’s 10-year sentence fell within the statutory range mandated by his stipulation to drug quantity. U.S. v. Martinez, 301 F.3d 860 (7th Cir. 2002).
7th Circuit holds that application of grouping rules did not implicate Apprendi. (120) Defendant contended that his sentences violated Apprendi because drug quantity not found by the jury was used to increase his sentence beyond the statutory maximum. However, a particular sentence does not implicate Apprendi unless it exceeds a default statutory maximum. The default maximum prison term for distributing less than five grams of cocaine is 20 years. Neither of defendant’s prison terms, 240 months on count one and 180 months on count two, exceeded that maximum. Therefore, Apprendi was irrelevant. Defendant argued that his aggregate 420-month prison sentence implicated Apprendi because the grouping of his drug offenses under USSG § 3D1.2(d) mandated a statutory maximum sentence of 360 months’ incarceration. See USSG § 3D1.2(d). The Seventh Circuit found that argument without merit because grouping multiple counts under § 3D1.2(d) merely affects the offense level used in establishing a guideline range and cannot change a statutory penalty. Thus, defendant’s statutory maximum prison sentence for each count remained at 20 years, and the terms imposed did not violate Apprendi. U.S. v. Knox, 301 F.3d 616 (7th Cir. 2002) .
7th Circuit holds that imposition of consecutive sentences did not violate Apprendi. (120) In an earlier appeal, the Seventh Circuit vacated defendant’s 30-year sentence for possession with intent to distribute cocaine, finding that it violated Apprendi v. New Jersey, 530 U.S. 466 (2000). On remand, the district court reduced the sentence on this count to 20 years, but increased the sentence on a second count to 10 years, and ordered that the two sentences run consecutively, bringing the total sentence back to 30 years. The Seventh Circuit held that the imposition of consecutive sentences did not violate Apprendi. Although this circuit has not yet decided whether, after Apprendi, the court is still required to impose consecutive sentences as directed by § 5G1.2(d), it has held that the district court has the discretion to do so. See U.S. v. Knox, 287 F.3d 667 (7th Cir. 2002). Sections 841(b)(1)(C) (possession with intent to distribute) and 846 (conspiracy) each authorize a maximum of 20 years without regard to quantity of cocaine. Defendant’s 30-year combine sentence did not exceed the combined maximum for the two counts, so there was no Apprendi violation. Moreover, it is settled that after the appellate court vacates the sentence on a particular count, the district court on remand may adjust the entire sentencing “package.” U.S. v. Noble, 299 F.3d 907 (7th Cir. 2002).
7th Circuit holds that firearm increase did not violate Apprendi. (120) Defendant was convicted of aggravated bank robbery in violation of 18 U.S.C. § 2113(a) and (d). The district court applied a § 2B3.1(b)(2)(B) increase because “a firearm was otherwise used” during the robbery. Defendant received a sentence of 97 months’ imprisonment. He argued that the court’s application of § 2B3.1(b)(2) violated Apprendi v. New Jersey, 530 U.S. 466 (2000), which provides that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be … proved beyond a reasonable doubt.” The Seventh Circuit found no Apprendi violation, because defendant’s 97-month sentence was well below the 25-year statutory maximum for aggravated bank robbery. U.S. v. Abdulla, 294 F.3d 830 (7th Cir. 2002).
7th Circuit finds Apprendi error was not plain where court could have imposed consecutive sentences. (120) Defendant argued for the first time on appeal that his sentences were unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant had admitted to selling about 90 kilograms of marijuana, yielding a statutory maximum of 20 years on both counts, see 21 U.S.C. § 841(b)(1)(C). The court, however, sentenced him to 292 months for the conspiracy count, 52 months beyond the statutory maximum. The Seventh Circuit held that the Apprendi violation did not constitute plain error because the court could have imposed the same punishment simply by imposing consecutive sentences. See USSG § 5G1.2(d). As a result, the court’s error did not result in a miscarriage of justice that warranted reversal. U.S. v. Martinez, 289 F.3d 1023 (7th Cir. 2002).
7th Circuit finds no Apprendi error where sentences did not exceed statutory maximum. (120) The first defendant was indicted on a single count for conspiring to distribute cocaine. The indictment did not state the amount of drugs defendant conspired to distribute, although it did state the substance, cocaine. The jury found defendant guilty as charged, and the district court imposed a 97-month sentence. The second defendant was indicted for two drug counts. This indictment also did not state the amount of drugs the second defendant distributed or conspired to distribute, but it named cocaine as the substance distributed. The jury found the second defendant guilty of both offenses, and he was sentenced to two concurrent sentences of 120 months and two concurrent three-year terms of supervised release. The Seventh Circuit found no error under Apprendi v. New Jersey, 530 U.S. 466 (2000), since defendants’ sentences did not exceed the 20-year default maximum for an offense involving an unspecified quantity of drugs. “[W]hen a defendant’s sentence does not exceed 20 years imprisonment – the maximum under § 841(b) for possessing/distributing the smallest amount of cocaine – Apprendi is irrelevant.” U.S. v. Martin, 287 F.3d 609 (7th Cir. 2002).
7th Circuit holds that defendant could not expand certificate of appealability to include Apprendi claim. (120) In 1994, defendant received a life sentence after being convicted of conspiring to import and distribute over 1000 kilograms of marijuana. He moved to have his sentence reviewed under 28 U.S.C. § 2255, claiming that he was denied his right to counsel. The court denied his § 2255 petition and he filed a motion to amend the judgment. While this motion was pending, defendant moved to amend his § 2255 petition to include a claim under Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court denied both motions and granted defendant a certificate of appealability limited to the ineffective assistance of counsel claim. He then petitioned the appeals court to expand the certificate of appealability (COA) to include his Apprendi claim. The Seventh Circuit rejected the petition, holding that defendant was procedurally barred from raising his Apprendi claim. First, defendant failed to raise that claim in his original § 2255 petition before the district court. Although defendant was tried and sentenced before Apprendi, “the novelty of Apprendi does not constitute cause for failing to raise the issue earlier because ‘the foundation for Apprendi was laid long before 1992.’“ Defendant’s motions to amend his application to include an Apprendi claim did not cure the waiver because the motions were properly denied due to the fact that they were late and did not relate back to this original petition. Rodriguez v. U.S., 286 F.3d 972 (7th Cir. 2002).
7th Circuit affirms some sentences and reverses others because of Apprendi errors. (120) Defendant’s sentence of 27 years on each drug count exceeded the default statutory maximum sentence of 20 years in 21 U.S.C. § 841(b)(1)(C). Before his sentence could fall between 20 and 40 years, his offense had to involve at least ten grams or more of methamphetamine, or 100 grams or more of a mixture or substance containing a detectable amount of meth. Defendant’s indictment did not discuss drug quantity, and the jury was not instructed to make a drug quantity finding. The Seventh Circuit found that the Apprendi error as to his conspiracy convictions were harmless. It was clear beyond a reasonable doubt that a properly-instructed jury would have found that the conspiracies defendant was involved in each involved well over 100 grams (about 3.5 ounces) of a mixture containing meth. The first conspiracy involved sales in quantities of 1 to 1 1/2 half pounds at a time. The second conspiracy involved almost daily sales of between 1/2 and four ounces at a time. Two distribution counts also survived plain error review. All the trial testimony indicated that these transactions involved 1 to 1 1/2 pounds of meth per trip. However, the other three distribution counts involved transactions that were part of the small-quantity conspiracy. Because it was unclear whether a jury would have found beyond a reasonable doubt that defendant distributed at least 100 grams of a meth mixture in connection with these counts, the panel vacated these sentences. U.S. v. Adkins, 274 F.3d 444 (7th Cir. 2001).
7th Circuit reiterates that Apprendi does not apply to prior convictions. (120) The Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) carved out an exception to its general rule, holding that prior convictions need not be alleged in the indictment nor proved to the jury beyond a reasonable doubt. The court thus declined to overrule Almendarez-Torres v. U.S., 523 U.S. 224 (1998). In the present case, the Seventh Circuit reiterated its earlier decisions holding that evidence of a prior conviction that would increase the statutory maximum under 21 U.S.C. § 841(b) need not be submitted to the jury. U.S. v. Collins, 272 F.3d 984 (7th Cir. 2001).
7th Circuit holds stipulation to 13.5 grams of crack was sufficient for Apprendi. (120) Apprendi v. New Jersey, 530 U.S. 466 (2000) requires that drug quantity be established beyond a reasonable doubt. Here, defendant stipulated to the presence of 13.5 grams of crack cocaine in Government Exhibit 4, and the government “undoubtedly” tied defendant to the crack in that exhibit. A conviction for any amount of crack over 5 grams carries with it a minimum sentence of five years and a maximum of 40 years under 21 U.S.C. § 841(b)(1)(B). Because defendant’s 360-month sentence was within the 40-year maximum, the Seventh Circuit affirmed his sentence. U.S. v. Collins, 272 F.3d 984 (7th Cir. 2001).
7th Circuit rejects Apprendi challenge to 30-year sentence for possessing crack with a prior. (120) Under 21 U.S.C. § 841(b)(1)(C) – the default provision if no drug quantity is charged in the indictment – the maximum sentence for a defendant with a prior felony drug conviction is 30 years, precisely the sentence defendant received in this case. Therefore, the fact that the district court found that defendant was a career offender under the sentencing guidelines did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000) because it was defendant’s prior conviction, not the district court’s career offender finding that raised the statutory maximum from 20 to 30 years. U.S. v. Collins, 272 F.3d 984 (7th Cir. 2001).
7th Circuit reaffirms that Apprendi error did not invalidate conviction. (120) Defendant claimed that his methamphetamine conviction under 21 U.S.C. § 841 could not stand because the jury was instructed that they need not find the actual quantity of methamphetamine involved, which, he claimed, was an element of the offense under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Seventh Circuit held that under circuit precedent, the failure to establish these facts beyond a reasonable doubt did not jeopardize the conviction. See U.S. v. Brough, 243 F.3d 1078 (7th Cir. 2001); U.S. v. Nance, 236 F.3d 820 (7th Cir. 2001). Here, the jury found beyond a reasonable doubt that defendant possessed with intent to distribute some quantity of meth, so his conviction was secure. As for his sentence, because the jury did not find the drug quantity involved, his maximum sentence under § 841(b)(1)(C) was 30 years, because he had a prior felony drug conviction. Although the district court, rather than the jury, found that defendant committed the prior drug felonies alleged in the government information, Apprendi does not require that these prior convictions be submitted to the jury or found beyond a reasonable doubt. U.S. v. Duvall, 272 F.3d 825 (7th Cir. 2001).
7th Circuit reaffirms that Apprendi errors are not jurisdictional, but subject to plain error review. (120) Defendants were convicted of drug conspiracy charges. Neither the indictment nor the guilty pleas mentioned any specific quantity of marijuana, and defendants did not ask the judge to determine that quantity using a reasonable doubt standard. To avoid plain error review, defendants argued that after Apprendi, drug quantity is an “element” of the offense established by § 841 and that omission of this element meant that the district court lacked jurisdiction, which would lead to reversal of the convictions and dismissal of the indictment without regard to the plain error standard. The Seventh Circuit disagreed, noting such an approach was contrary to U.S. v. Nance, 236 F.3d 820 (7th Cir. 2001), which adopted the plain error standard of review of forfeited Apprendi arguments, and U.S. v. Brough, 243 F.3d 1078 (7th Cir. 2001), which held that drug quantity is not an element of § 841 in the technical sense. Cases that have asserted that Apprendi problems affect the district court’s jurisdiction do not explain why the problem is jurisdictional. U.S. v. Bjorkman, 270 F.3d 482 (7th Cir. 2001).
7th Circuit holds that Apprendi errors did not warrant resentencing. (120) Defendant was convicted of a variety of drug counts, and he raised a number of Apprendi challenges to his sentences. The Seventh Circuit held that the Apprendi errors did not warrant resentencing. When there is overwhelming evidence that the defendant’s offense involved an amount sufficient to trigger the higher statutory maximums, “he is not entitled to be re-sentenced on the basis of Apprendi.” U.S. v. Jackson, 236 F.3d 886 (7th Cir. 2001). There was overwhelming evidence that more than five kilograms were involved in the conspiracy. Even if the only drugs considered by the court was the load seized by agents in November 1999, that load contained 422 kilograms of cocaine. An Apprendi error does not seriously affect the fairness, integrity, or public reputation of the judicial proceedings where the record provides overwhelming support for the conclusion that more than five kilograms were involved, see U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000), and this situation clearly fell into that category. U.S. v. Alanis, 265 F.3d 576 (7th Cir. 2001).
7th Circuit finds no Apprendi error given defendant’s prior felony conviction. (120) Defendant’s sentence appeared to violate Apprendi v. New Jersey, 530 U.S. 466 (2000) because the judge did not submit the issues of drug quantity and type to the jury, and his 292-month sentence exceeded the 20-year maximum prescribed in § 841(b)(1)(C). However, the Seventh Circuit found no Apprendi error, since defendant’s prior felony conviction increased the statutory maximum to 30 years. Apprendi specifically excludes prior felonies from its proof requirements. Moreover, even if defendant’s sentence did violate Apprendi, the error was harmless. All the evidence presented at trial linked defendant with amounts of crack in excess of five grams. It was inconceivable that a reasonable jury could have convicted defendant without finding that his crimes involved more than five grams of cocaine base. U.S. v. Booker, 260 F.3d 820 (7th Cir. 2001).
7th Circuit holds that belated Apprendi challenge was successive § 2255 attack on original sentence. (120) Defendant’s first § 2255 petition claimed that one of his prior convictions did not qualify as a predicate offense under the ACCA. The appellate court agreed and vacated his sentence. In 1998, the district court found that defendant still had at least three predicate convictions, and reimposed the same sentence. Defendant’s second § 2255 petition argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), his status as an armed career criminal should have been determined by a jury. Prior appellate approval is required for a “second or successive motion” under § 2255. Defendant’s previous collateral challenge related to his 1995 conviction and sentence, but he was entitled to another to the extent he attacked a different conviction or sentence. See Walker v. Roth, 133 F.3d 454 (7th Cir. 1997). However, defendant did not object to an error made in 1998 – the argument he now sought to present could have been raised at trial or on appeal from the original sentence. Thus, the Seventh Circuit ruled that defendant’s proposed challenge was not an initial collateral attack. A belated challenge to events that precede a resentencing must be treated as a collateral attack on the original conviction and sentence, rather than as an initial challenge to the latest sentence. Therefore, defendant needed permission to bring the current § 2255 petition. Defendant’s application did not meet the statutory standard for a second or successive collateral attack. Under Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the issue of prior convictions need not be submitted to the jury. Dahler v. U.S., 259 F.3d 763 (7th Cir. 2001).
7th Circuit holds that failure to submit drug quantity to jury was not plain error. (120) Defendant was sentenced to a mandatory life sentence based on the district court’s finding that he was responsible for 1.5 kilograms or more of crack. Under 21 U.S.C. § 841(a)(1)(C), the maximum penalty for an offense involving an unspecified quantity of drugs is 20 years. Because the jury did not determine drug quantity, defendant’s life sentence was in direct conflict with Apprendi v. New Jersey, 530 U.S. 466 (2000). However, when the defendant does not object to the indictment’s failure to state the drug quantity nor ask the court to submit the drug quantity question to the jury, the review is only for plain error. See U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000), petition for cert. filed (Apr. 24, 2001) No. 00-9633. Although the current case met the first three prongs of the plain error review, the Seventh Circuit found that it did not meet the fourth prong. Where there is overwhelming evidence presented as to the minimum quantity of drugs necessary to sustain the sentence imposed, the error does not “seriously affect[] the fairness, integrity or public reputation of judicial proceedings.” Offenses involving 50 or more grams of crack require a life sentence. Here, the testimony of defendant’s main supplier placed defendant in possession of a minimum of 850 grams of crack. In addition, there were numerous witnesses who testified to having seen defendant with varying amounts of crack. U.S. v. Martinez, 258 F.3d 582 (7th Cir. 2001).
7th Circuit holds Apprendi does not apply to mandatory minimum sentences. (120) Because the indictment did not charge defendant with brandishing his firearm during the bank robbery, the district court believed that Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), precluded it from imposing the seven-year mandatory minimum sentence prescribed by 18 U.S.C. § 924(c)(1)(A)(ii). Instead, the court imposed only a five-year sentence on that count. The government appealed, and the Seventh Circuit reversed, noting that Apprendi’s inapplicability to statutory mandatory minimum sentences is “well settled in this circuit, as well as many of our sister circuits.” See U.S. v. Rodgers, 245 F.3d 961, 967-68 (7th Cir. 2001). The panel acknowledged that the Sixth Circuit has held that Apprendi applies to mandatory minimum sentences. U.S. v. Ramirez, 242 F.3d 348, 350 (6th Cir. 2001), but reaffirmed the Seventh Circuit’s rule that Apprendi is not implicated when the actual sentence imposed is less severe than the statutory maximum. U.S. v. Watts, 256 F.3d 630 (7th Cir. 2001).
7th Circuit holds that Apprendi error in indictment did not meet plain error test. (120) Defendant argued for the first time on appeal that the indictment upon which he pled guilty was defective because it did not identify the exact quantity of drugs to be used against him. See Apprendi v. New Jersey, 530 U.S. 466 (2000). The Seventh Circuit ruled that defendant could not meet the fourth prong of the plain error test – he could not establish that the error affected the fairness, integrity, or public reputation of the proceedings. There was overwhelming evidence that seven and one half to nine kilograms of cocaine were involved in defendant’s conspiracy. At no point during the proceedings did defendant assert that less than this amount was involved. Defendant acknowledged as much when he agreed to a base offense level of 32 in his plea agreement. Additionally, defendant did not challenge the amount of seven and one half to nine kilograms, as specifically contained in his PSR. Finally, at his change of plea hearing, a drug enforcement agent testified that defendant transported this quantity, and defendant confirmed the veracity of this statement. U.S. v. Gilliam, 255 F.3d 428 (7th Cir. 2001).
7th Circuit finds Apprendi error in setting “offense statutory maximum” for career offender did not meet plain error test. (120) For career offenders, § 4B1.1 sets a new offense level based upon the “offense statutory maximum,” defined as “the maximum term of imprisonment authorized for the offense of conviction.” Throughout the sentencing proceedings, it was assumed that the offense statutory maximum for defendant’s drug offense was life imprisonment. Such a penalty is authorized under 21 U.S.C. § 841(b)(1)(A)(ii)(II) for offenses involving five or more kilograms of cocaine. Defendant asserted that because his indictment failed to allege drug quantity, he was only subject to a maximum sentence of 20 years, under § 841(b)(1)(C). See Apprendi v. New Jersey, 530 U.S. 466 (2000). If the court had used an offense statutory maximum of 20 years instead of life, defendant’s offense level would have been 32 instead of 37. The Seventh Circuit held that defendant could not meet the plain error test – the Apprendi error did not affect the fairness, integrity, or public reputation of the judicial proceedings. At no point during the proceedings did defendant ever believe the statutory maximum penalty was anything other than life imprisonment. The evidence overwhelmingly established that defendant dealt in a quantity of drugs sufficient to set his statutory offense maximum at life imprisonment. U.S. v. Gilliam, 255 F.3d 428 (7th Cir. 2001).
7th Circuit holds that increase for use of a silencer did not violate Apprendi. (120) Defendant was convicted of being a felon in possession of a firearm and was sentenced as an armed career criminal under 18 U.S.C. § 924(e) and USSG § 4B1.4. The district court found that defendant had been in possession of a silencer. Because this silencer was a type of firearm described in 26 U.S.C. § 5845(a)(7), USSG § 4B1.4(b)(3)(A) and (c)(2) required defendant’s base offense level to be set at 34 and his criminal history category to be set at VI. Defendant argued that the increase in his sentence based on the silencer was unconstitutional under the Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Castillo v. U.S., 530 U.S. 120 (2000). The Seventh Circuit disagreed. A district court may make various factual determinations under the guidelines so long as such determinations do not exceed the prescribed statutory maximum for that crime. The statutory maximum for defendant’s conviction was life imprisonment. “[W]hen the statutory maximum is life imprisonment, Apprendi is beside the point.” U.S. v. Skidmore, 254 F.3d 635 (7th Cir. 2001).
7th Circuit holds that sentencing as armed career criminal did not violate Apprendi. (120) Defendant argued that, although the crime for which the jury convicted him (being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1)) only carried a sentence of up to 10 years, he was, based on three separate violent felony convictions, improperly sentenced under § 924(c)(1), the Armed Career Criminal Act, which carries a maximum penalty of life imprisonment. He asserted that under Apprendi v. New Jersey, 530 U.S. 466 (2000), whether he had been convicted of three separate violent felonies was a fact that should have been presented to the grand jury, tried before the jury, and found beyond a reasonable doubt. The Seventh Circuit disagreed. Under Almendarez-Torres v. U.S., 523 U.S. 224 (1998), recidivism used to enhance a defendant’s maximum penalty is not an element of a crime that must be charged in an indictment and found beyond a reasonable doubt, but a sentencing factor. While the majority opinion in Apprendi noted that “it is arguable that Almendarez-Torres was incorrectly decided,” the Court nonetheless specifically carved out and maintained the exception for “prior convictions” and refused to overrule Almendarez-Torres. U.S. v. Skidmore, 254 F.3d 635 (7th Cir. 2001).
7th Circuit reaffirms that Apprendi does not apply to mandatory minimum sentences. (120) Defendant received a life sentence for operating a continuing criminal enterprise, among other crimes, in violation of 21 U.S.C. § 848. He argued that his sentence violated due process because the jury did not conclude that the evidence established beyond a reasonable doubt the events that led to the life terms. See Apprendi v. New Jersey, 530 U.S. 466 (2000). The Seventh Circuit found that Apprendi was inapplicable, because the maximum sentence for every § 848 violation is life. This circuit has previously rejected defendant’s contention that Apprendi governs the application of mandatory minimums. See U.S. v. Smith, 223 F.3d 554 (7th Cir. 2000). Sixth Circuit cases holding to the contrary have ignored McMillan v. Pennsylvania, 477 U.S. 79 (1986), which held that judges may find, by a preponderance of the evidence, facts that trigger mandatory minimum penalties. U.S. v. Hill, 252 F.3d 919 (7th Cir. 2001).
7th Circuit holds that Apprendi error not plain where there was overwhelming evidence of drug quantity. (120) After the case was remanded by the Supreme Court for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the Seventh Circuit considered whether defendant’s unpreserved Apprendi claim met the four-prong plain error test. The panel ruled that defendant met the first three prongs, but failed to meet the fourth prong of the test. Because the issue of drug quantity was not submitted to the jury, the district court erred when it sentenced defendant to 40 years on each drug possession conviction. Apprendi made it apparent that these errors were plain. Also, because these errors increased defendant’s sentences by 20 years, there was no question that the error affected his substantial rights. See U.S. v. Mietus, 237 F.3d 866 (7th Cir. 2001). However, defendant could not establish that the sentencing errors seriously affected the fairness, integrity, or public reputation of the judicial proceedings. There was overwhelming evidence for each 40-year count that defendant possessed more than five grams of crack. The police arrested him twice, each time recovering more than five grams of crack. Defendant never disputed the quantities involved, arguing only that he possessed the drugs for personal use. U.S. v. Robinson, 250 F.3d 527 (7th Cir. 2001).
7th Circuit holds that relevant conduct need not be proven beyond reasonable doubt. (120) Defendant argued that the trial court improperly increased his sentence based on drug quantities that were not alleged in the indictment or proven to the jury. The jury found that the government had proven the charges listed in the indictment, one of which was that defendant possessed with intent to distribute 135.8 grams of cocaine base. The statutory maximum for possession with intent to distribute 50 or more grams of cocaine base is life imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii). Since the 30-year sentence that defendant received was less than the statutory maximum of life imprisonment, Apprendi v. New Jersey, 530 U.S. 466 (2000) was not implicated. The Seventh Circuit has previously rejected defendant’s claim that relevant conduct must be proven to the jury beyond a reasonable doubt. U.S. v. Jones, 245 F.3d 645 (7th Cir. 2001). Because the district court’s reliance on defendant’s relevant conduct did not result in a sentence exceeding the statutory maximum of life imprisonment, the Seventh Circuit found no Apprendi error. U.S. v. Jones, 248 F.3d 671 (7th Cir. 2001).
7th Circuit holds that Apprendi error was plain. (120) Defendant argued for the first time on appeal that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). To justify a finding of plain error, there must be an error that is plain, and that affects substantial rights. U.S. v. Olano, 507 U.S. 725 (1993). The first three criteria were clearly satisfied. Defendant’s case constituted clear error because his drug quantity was not charged in the indictment or determined by the jury. The only issue was whether this case triggered the appellate court’s discretion to reverse by implicating the fairness, integrity, or reputation of the judicial process. Although such concerns are not implicated when overwhelming evidence supports a sentence above the statutory maximum, the Seventh Circuit exercised its discretion and vacated defendant’s sentence. Defendant’s case was characterized by limited physical evidence and minimal corroborating testimony. Defendant disputed the drug quantity for which he was held responsible. His sentence was hinged to a significant degree on the district court’s credibility determinations. Defendant raised non-frivolous concerns about one witness’s ability to recall the amount of drugs he purchased over two years. His estimates of drug transactions were inconsistent both in quantity purchased and frequency. Another witness’s testimony was based on secondhand knowledge. A reasonable jury would not be compelled to conclude that defendant possessed or distributed more than 1000 kilograms of marijuana. U.S. v. Noble, 246 F.3d 946 (7th Cir. 2001).
7th Circuit holds defendant not entitled to jury determination of drug quantity. (120) Defendant pled guilty to possessing with the intent to distribute cocaine base in excess of 50 grams. There was no written plea agreement. As part of the plea colloquy, the judge asked defendant whether he understood that the government would have to prove beyond a reasonable doubt that he knowingly possessed cocaine base and that the amount he possessed exceeded 50 pounds. During the sentencing hearing, defendant moved to withdraw his guilty plea based on Apprendi v. New Jersey, 530 U.S. 466 (2000), arguing that he might have pled differently had he known that the government was required to prove beyond a reasonable doubt that he possessed more than 50 grams. The Seventh Circuit rejected this argument because it wrongly assumed that defendant had a right to a jury determination of drug quantity. Because defendant’s sentence did not exceed the statutory maximum under 21 U.S.C. § 841(b)(1)(A), Apprendi did not create for defendant a right to a jury determination of the drug quantity alleged in the indictment. Furthermore, by pleading guilty, defendant waived any right to a jury trial and could not contend on appeal that any particular issue should have been submitted to the jury. U.S. v. Parker, 245 F.3d 974 (7th Cir. 2001).
7th Circuit holds that Apprendi does not apply to mandatory minimums. (120) The judge found, by a preponderance of the evidence, that defendant was responsible for the distribution of 250 grams of crack and 349 grams of powder cocaine. This triggered a mandatory minimum sentence of ten years under 21 U.S.C. § 841(b)(1) (A)(iii). Based on Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant argued that the drug quantity, because it had the effect of imposing a floor on the length of time he would spend in prison, constituted an element of the offense that the government was required to prove to the jury beyond a reasonable doubt. The Seventh Circuit held that Apprendi did not apply to the application of mandatory minimum sentences. In McMillan v. Pennsylvania, 477 U.S. 79 (1986), which Apprendi expressly declined to overrule, the Supreme Court upheld a mandatory minimum sentence based on a judicial finding, by a preponderance of the evidence, that the defendant possessed a gun. Apprendi limits “only those factual determinations that potentially will increase the statutory maximum sentence to which the defendant is subject.” U.S. v. Rodgers, 245 F.3d 961 (7th Cir. 2001).
7th Circuit says Apprendi does not affect use of relevant conduct if statutory maximum not exceeded. (120) Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant argued for the first time on appeal that his jury instructions erroneously failed to direct the jury that it must find that the government proved beyond a reasonable doubt the type and quantity of drugs alleged in the indictment. Because defendant’s 312-month sentence was 48 months lower than the 30-year statutory maximum for a defendant with a prior felony drug conviction, the Seventh Circuit found Apprendi inapplicable. Defendant also challenged the sufficiency of the findings made by the district court in calculating his sentence. He argued that Apprendi requires all sentencing factors, including relevant conduct, to be found beyond a reasonable doubt. The Seventh Circuit disagreed. Apprendi “does not affect application of the relevant-conduct rules under the Sentencing Guidelines to sentences that fall within a statutory gap.” Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000). A district court may still determine a drug offender’s base level offense under the guidelines by considering drugs that were not specified in the count of conviction but that the court concludes, by a preponderance of the evidence, were part of the defendant’s relevant conduct, as long as that determination does not result in a sentence that exceeds the statutory maximum for that crime. U.S. v. Jones, 245 F.3d 645 (7th Cir. 2001).
7th Circuit holds that federal drug statute does not violate due process. (120) Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant argued that 21 U.S.C. § 841 is unconstitutional because it does not mention the burden of persuasion (or the allocation of issues between judge and jury) and does not identify sentencing considerations as elements of the offense. However, after Apprendi, as interpreted by U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000), all facts, other than prior convictions, that set the maximum possible punishment under § 841 must be established beyond a reasonable doubt to the satisfaction of the same body that determines culpability under § 841(a). The Seventh Circuit held that neither Apprendi nor Nance established that § 841 was unconstitutional. If Congress had specified that only judges may make the findings required by § 841(b), or that these findings must be made by a preponderance of the evidence, then § 841 would create a constitutional problem. Instead the law attaches effects to facts, leaving it to the judiciary to sort out who determines the facts, under what burden. It makes no constitutional difference whether a single subsection covers both elements and penalties, whether they are divided across multiple subsections, or even whether they are scattered across multiple statutes. U.S. v. Brough, 243 F.3d 1078 (7th Cir. 2001).
7th Circuit won’t reverse where Apprendi error did not result in miscarriage of justice. (120) In the aftermath of Apprendi v. New Jersey, 530 U.S. 466 (2000), the Seventh Circuit held that the kind and quantity of drugs are jury questions, to the extent they affect the statutory minimum and the maximum punishment. See U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000). However, when the defendant does not ask the judge to instruct the jury on this question, the review is limited to plain error. Where the error is plain, reversal is not mandated. Unless the error also causes a miscarriage of justice, a court of appeals retains discretion to affirm the judgment. The Seventh Circuit found no miscarriage of justice from the Apprendi error here, finding it inconceivable that the same jury that convicted defendants of this crack conspiracy could have thought that the quantity of crack was under 50 grams. The overwhelming evidence showed that defendants’ organization lasted at least a decade and during its best years grossed more than $40,000 a day in retail sales. The fact that the indictment was silent as to drug quantity did not change the plain error analysis. U.S. v. Patterson, 241 F.3d 912 (7th Cir. 2001).
7th Circuit rules defendant failed to show cause and prejudice for failure to preserve Apprendi claim. (120) Defendant originally sought resentencing under 18 U.S.C. § 3582(c) based on a retroactive change in the guidelines. The district court reduced defendant’s sentence under the amendment, but rejected defendant’s request to cut his sentence further based on the fact that the judge, not the jury, had determined drug quantity. The Seventh Circuit affirmed, but the Supreme Court remanded for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi established that the district court erred in 1992 when it failed to instruct the jury to determine whether defendant was accountable for more than 50 grams of crack, or some lesser amount. Defendant did not raise this issue in 1992, so plain error would be the standard if this were a direct appeal. However, because defendant did not raise his claim at trial or on direct appeal, the Seventh Circuit treated the action as a collateral attack under § 2255. To obtain collateral relief, defendant was required to show “cause and prejudice” for his failure to raise the drug quantity issue at his 1992 trial. He could not. The lack of precedent differs from “cause” for failing to make a legal argument. Although the lack of any reasonable legal basis for a claim may constitute “cause,” the foundation for Apprendi was laid long before 1992. See, e.g. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Moreover, it was by no means clear that Apprendi is retroactively applicable on collateral attack. U.S. v. Smith, 241 F.3d 546 (7th Cir. 2001).
7th Circuit finds plain error under Apprendi where drug quantity evidence was inadmissible at trial. (120) The issue of drug quantity was not mentioned in the jury instructions, but the drug quantity found by the sentencing judge subjected defendant to a sentence that exceeded the 20-year statutory maximum in § 841(b)(1)(C) for an unspecified quantity of cocaine. Thus, defendant’s rights were violated by the court’s failure to submit drug quantity to the jury. See U.S. v. Rogers, 228 F.3d 1318 (11th Cir. 2000) (relying on Apprendi v. New Jersey, 530 U.S. 466 (2000). Because a key piece of drug quantity evidence was inadmissible at trial, the Seventh Circuit ruled that the Apprendi error affected defendant’s substantial rights, i.e. it “affected the outcome of the district court proceedings.” Two pieces of evidence supported the district court’s drug quantity determination: 550.9 grams of cocaine found in defendant’s car, and eight kilograms that a co-conspirator, in his confession to the police, claimed to have imported. However, the co-conspirator’s confession was improperly admitted into evidence at trial and thus should not have been before the jury. The only drug quantity evidence that the jury could properly consider was the 550.9 grams found in defendant’s car, a quantity allowing for a sentence of five to 40 years under § 841(b)(10(B), but not defendant’s life sentence. U.S. v. Westmoreland, 240 F.3d 618 (7th Cir. 2001).
7th Circuit rules consecutive sentences were imposed so no Apprendi violation. (120) Defendant argued that his 196-month sentence for two counts of violating 18 U.S.C. § 1341 (each carrying a statutory maximum of 60 months) and one count of violating § 2314 (carrying a statutory maximum of ten years) violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Seventh Circuit found no Apprendi violation because defendant wrongly assumed that his sentences were concurrent and therefore exceeded the statutory maximum. However, the court said that it rejected defendant’s request for concurrent sentences; thus, the implication was that the sentences for the three counts were imposed consecutively. The district court properly complied with § 5G1.2(d), which states: “If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.” If consecutive sentences were given, the statutory maximum for the three counts was 240 months. Because defendant’s sentence did not exceed the statutory maximum, there was no Apprendi violation. U.S. v. Parolin, 239 F.3d 922 (7th Cir. 2001).
7th Circuit holds that sentence below statutory maximum did not violate Apprendi. (120) Defendant argued that his sentence was determined in violation of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) (other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt). However, when a defendant is sentenced to a term of imprisonment within the statutory maximum for the crime for which he was convicted, Apprendi is not applicable. See Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000). The Seventh Circuit found no Apprendi violation, since defendant’s sentence of 12 years and seven months was less than the 240-month statutory maximum for an offense involving an unspecified quantity of cocaine base in 21 U.S.C. § 841(b)(1) (C). Moreover, Apprendi was not applicable to cases involving a mandatory minimum sentence, provided the actual sentence imposed is less severe than the statutory maximum. U.S. v. Williams, 238 F.3d 871 (7th Cir. 2001).
7th Circuit holds that Apprendi error was not plain. (120) Before a defendant can be sentenced to a term of imprisonment above the statutory maximum provided in 21 U.S.C. § 841(b)(1)(C) or (D) for offenses involving an unspecified drug quantity, Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) requires that the drug type and amount be charged in the indictment and found by the jury. See U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000). Defendant was sentenced to 151 months imprisonment; the statutory maximum for an unspecified amount of marijuana is five years. The Seventh Circuit held that any Apprendi error was harmless under Neder v. U.S., 527 U.S. 1 (1999). Even if there was error and that error was plain and affected defendant’s substantial rights by increasing his sentence by over seven years, he could not show that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. When the government arrested defendant, it seized nearly 1000 kilograms of marijuana from defendant’s truck. None of the defendants in the case ever contested the amount of marijuana found in the truck. In order to convict at all, the jury must have found that defendant knew that the boxes contained marijuana. There was no evidence that defendant could have been guilty of possessing some but not all of the seized drugs. U.S. v. Mietus, 237 F.3d 866 (7th Cir. 2001).
7th Circuit says plain error under Apprendi must be prejudicial. (120) Defendant’s 262-month sentence exceeded the 20-year maximum found in 21 U.S.C. § 841(b)(1)(C) for offenses involving an unspecified quantity of crack cocaine. Since drug quantity was not charged in the indictment or presented to the jury, the Seventh Circuit agreed that defendant’s sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). However, reversal was not required. Defendant failed to preserve his objection to the drug quantity issue, and thus review was for plain error. Under this standard, even if the error was “plain” and affected defendant’s substantial rights (by increasing his sentence by 22 months), reversal was only required if the error seriously affected the “fairness, integrity, or public reputation of the judicial proceedings.” If it was clear beyond a reasonable doubt that a properly worded indictment and jury instruction would have found defendant guilty absent this error, then the error was not so serious as to require reversal. That was the case here. If the jury was going to convict defendant at all, there was no way on this record that it could have failed to find that he was conspiring to distribute five grams or more of crack cocaine, the minimum amount necessary to support his sentence. Numerous witnesses testified about drug quantities in excess of five grams. Almost any piece of evidence standing alone would have supported this drug quantity. U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000).
7th Circuit finds Apprendi error harmless given overwhelming evidence of hundreds of grams of crack. (120) Defendant received a 30-year sentence based on the sentencing judge’s finding that his offense involved at least five grams of crack cocaine. 21 U.S.C. § 841(b)(1) (B). The Supreme Court then remanded for resentencing in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). However, because defendant did not raise this issue in the district court, the review was for plain error. To prevail under the plain error standard, defendant must show not only that the error was plain in the sense of clear, but that the error was prejudicial—i.e. that there was some likelihood that the judgment would have been different had the error not been made. See U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000).The Seventh Circuit ruled that defendant could not meet this standard, because the evidence that his offense involved at least five grams of crack was “overwhelming.” Defendant was an official of the Gangster Disciples, a very large drug gang whose principal commodity was crack cocaine. On one occasion alone, defendant sold 51.7 grams of crack, more than ten times the amount required to make him eligible for a 40-year maximum sentence. No reasonable jury could have failed to find that defendant was involved in the sale of hundreds, if not thousands, of grams of crack. U.S. v. Jackson, 236 F.3d 886 (7th Cir. 2001).
7th Circuit holds that Apprendi does not apply to restitution. (120) Defendant argued that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the amount of restitution was an essential fact that a jury must find beyond a reasonable doubt. The Seventh Circuit held that Apprendi was not applicable to restitution orders. Apprendi says that “[o]ther than the fact of a criminal conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Restitution is not a penalty for a crime, but a classic civil remedy. See U.S. v. Szarwark, 168 F.3d 993 (7th Cir. 1999). Congress required judges to include this remedy in a criminal judgment to avoid the need for the victims of crime to file separate civil suits. A civil remedy included with a criminal judgment does not make it a “penalty for a crime” that must be established beyond a reasonable doubt. In addition, § 35663A does not include a “statutory maximum” that could be “increased” by a given finding. U.S. v. Behrman, 235 F.3d 1049 (7th Cir. 2000).
7th Circuit says Apprendi not applicable where aggravating factors did not increase statutory maximum. (120) Based on the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), defendant requested authorization to file a second or successive motion for relief under 28 U.S.C. § 2255. Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Seventh Circuit noted potentially meritorious claims that rely on new rules of constitutional law are not ripe for presentation until the Supreme Court has ruled on the retroactivity issue. In such a case, it generally would dismiss the application without prejudice to re-filing at such time as the Court renders a decision in favor of retroactivity. Dismissal without prejudice was not required here, however, because even if Apprendi were retroactive, it would be of no help to defendant. Defendant was convicted of conspiracy to kidnap and kidnapping under 18 U.S.C. § 1201(a) and (c). The facts that supported upward adjustments under the guidelines, such as his demand for ransom, were sentencing factors that did not increase the prescribed statutory maximum for his crimes. The kidnapping statute clearly authorizes a sentence for “any term of years or for life” for the both the substantive offense and the conspiracy offense. Because the aggravating factors considered by the court did not increase the statutory maximum, Apprendi was not applicable. The aggravating factors were sentencing factors, not elements of the offense. Hernandez v. U.S., 226 F.3d 839 (7th Cir. 2000).
7th Circuit notes limits of Apprendi decision. (120) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the Supreme Court held that, except for prior convictions, any fact that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. After rejecting defendant’s habeas petition, the Seventh Circuit noted that Apprendi was simply not applicable to many of the applications it had received for habeas relief. “All Apprendi holds is that most circumstances increasing a statutory maximum sentence must be treated as an element of the offense…. Apprendi does not affect application of the relevant conduct rules under the Sentencing Guidelines to sentences that fall within a statutory cap. Thus, for example, when the statutory maximum is life imprisonment, Apprendi is besides the point…. When a drug dealer is sentenced to less than 20 years’ imprisonment—the limit under 21 U.S.C. § 841(b)(1)(C) for even small-scale dealing in Schedule I and II controlled substances—again Apprendi is irrelevant….” Apprendi does not affect the holding of Edwards v. United States, 523 U.S. 511 (1998) that the judge alone determines drug types and quantities when imposing sentences short of the statutory maximum. Apprendi also does not affect the holding of Custis v. United States, 511 U.S. 485 (1994) that the validity of prior convictions is not open to reexamination at sentencing for a new offense, unless the defendant lacked counsel when convicted of the prior offense. Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000).
7th Circuit will reject successive § 2255 petitions until Supreme Court announces Apprendi is retroactive. (120) Based on the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), defendant requested authorization to file a second or successive motion for relief under 28 U.S.C. § 2255. Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Seventh Circuit held it will not authorize a successive petition under Apprendi unless and until the Supreme Court announces that Apprendi applies retroactively. “[A] new decision of the Supreme Court justifies a second or successive attack only if it establishes ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.’” Under Bennett v. U.S., 119 F.3d 470 (7th Cir. 1997), that retroactive application must be declared by the Supreme Court itself. If the Supreme Court ultimately declares that Apprendi applies retroactively on collateral attack, then the Seventh Circuit will authorize successive collateral review of cases to which it applies. “Until then prisoners should hold their horses and stop wasting everyone’s time with futile applications.” Moreover, prisoners considering initial collateral attacks based on Apprendi should reconsider, because a loss will require the appellate court’s approval to launch a later collateral attack. Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000).
7th Circuit says probation officer did not violate separation of powers by sitting at government’s table during sentencing. (120) Defendant argued that the probation officer who prepared his PSR violated the separation of powers doctrine by not serving as a neutral arm of the court, but as an advocate for the prosecution. He pointed out that the probation officer sat at the government’s table during his sentencing hearing. The Seventh Circuit held that the mere fact that the probation officer sat at the government’s table during sentencing did not violate the separation of powers clause. There was no evidence that the probation officer acted other than as an arm of the court. However, the wrong impression can be given when the probation officer sits in court with the government’s counsel at the government’s table. Thus, the appellate court suggested that district judges, U.S. Attorneys and probation officers take steps to prevent the perception that probation officers are “surrogate prosecutors.” For example, a separate small table could be placed to one side inside the rail, so the probation officer would be equally available to the district judge and to the other parties as needed. U.S. v. Turner, 203 F.3d 1010 (7th Cir. 2000).
7th Circuit upholds constitutionality of federal Three Strikes law. (120) Defendant raised numerous constitutional challenges to the federal Three Strikes law, 18 U.S.C. § 3559(c). The Seventh Circuit rejected them all. The statute does not violate due process by placing the burden on the defendant to negate the imposition of a strike. Due process does not require the government at sentencing to prove all matters beyond a reasonable doubt. The statute does not violate equal protection, even though state criminal laws are not identical. Certain felonies (described in (F)(i)) were considered serious enough to include no matter how harsh or lenient their treatment under state law, while others (described in (F)(ii)) require a ten-year term for imprisonment. There is no federalism or equal protection issue in (F)(i) and none that survives rational basis analysis in (F)(ii). Prosecutorial discretion in applying the law does not violate the doctrine of separation of powers or equal protection. The Supreme Court rejected a similar argument in U.S. v. LaBonte, 520 U.S. 751, 117 S.Ct. 1673 (1997) with respect to the career offender guideline. Finally, Congress did not exceed its powers under the Commerce Clause in enacting the Three Strikes law. There is a difference between the substantive offense for which defendant was convicted and the sentence Congress has chosen to impose for the offense. U.S. v. Wicks, 132 F.3d 383 (7th Cir. 1997).
7th Circuit upholds constitutionality of “three strikes” law. (120) Defendant was convicted of bank robbery. Because he had at least two previous convictions for “serious violent felonies,” the district court imposed a mandatory life sentence under 18 U.S.C. § 3559(c)(1), the so-called “three strikes” law. The Seventh Circuit rejected defendant’s constitutional challenges to the three strikes law. Life imprisonment for a repeat bank robber whose record also included murder and attempted murder is not cruel and unusual punishment. Recidivist statutes do not violate the ex post facto clause or constitute double jeopardy. There was no factual basis for claim that the law had a disparate impact on minorities. Moreover, the equal protection clause is concerned with purposeful discrimination rather than proportional outcomes. The law also does not violate separation of powers principles. The present bank robbery was a serious violent felony, since it is included in § 3559 (c)(2). Section 3559(c) (3)(A) only excludes robberies where there is no firearm or threat of firearm. Defendant threatened to use a gun. U.S. v. Washington, 109 F.3d 335 (7th Cir. 1997).
7th Circuit rejects new separation of powers challenges to guidelines. (120) In Mistretta v. U.S., 488 U.S. 361 (1989), the Supreme Court rejected a separation of powers challenge to the guidelines. Defendant argued that the functioning of the Sentencing Commission since Mistretta requires the separation of powers argument to be reevaluated. He contended that in practice the Sentencing Commission has become a “Junior Varsity Congress” rather than a rule making body. Also, he argued that prosecutors exercise undue sway over the Sentencing Commission’s activities. The Seventh Circuit rejected the separation of powers challenges. Defendant did not demonstrate that the Commission’s exercise of legislative powers was more extensive than already acknowledged in Mistretta. Defendant also did not show that the higher sentences resulting from the guidelines were linked to prosecutorial preferences. The fact that only prosecutors may move for substantial assistance departures was not problematic. How else would a court determine whether a defendant had “substantially assisted” the government if not to ask the government’s representative? U.S. v. Griffith, 85 F.3d 284 (7th Cir. 1996).
7th Circuit finds counsel effective notwithstanding failure to object to arguable breach of plea agreement. (120) In return for defendant’s guilty plea, the government agreed to recommend a downward departure for substantial assistance. Defendant argued that the government breached its agreement by using “equivocal language” in its recommendation and by failing to file a written 5K1.1 motion until the morning of the sentencing hearing. He claimed that his counsel’s failure to object to these breaches constituted ineffective assistance of counsel. The 7th Circuit disagreed, noting that the government had previously informed the district court that it would file the motion and that the district court had appeared to treat the written motion as timely filed. In addition, while the government had made clear that it did not favor a departure in excess of its recommendation, it was not equivocal in supporting a departure in the agreed amount. U.S. v. Jimenez, 992 F.2d 131 (7th Cir. 1993).
7th Circuit rejects Presentment Clause challenge to guidelines. (120) In Mistretta v. U.S., 109 U.S. 647 (1989), the Supreme Court distinguished the guidelines from the kind of legislation commonly passed by Congress which must be presented to the President for signature. Thus the 7th Circuit rejected defendant’s claim that the guidelines are legislation promulgated in violation of the Presentment Clause. The guidelines are rules of court, and Congress has the power to delegate to the courts authority to make rules not inconsistent with the statutes and Constitution of the United States. The guidelines are constitutionally delegated rule making, not subject to the Presentment Clause. U.S. v. Macias, 930 F.2d 567 (7th Cir. 1991).
7th Circuit holds guideline for failure to surrender is constitutional. (120) Defendant argued that § 2J1.6(a) (failure to surrender) is unconstitutional because it does not allow a judge to consider mitigating circumstances, whereas § 2P1.1(b)(2) (escape) allows for a 7 level reduction for an escapee from a nonsecure facility who returns within 96 hours. The 7th Circuit rejected his argument, noting that prompt surrender may be relied upon as grounds for departure. Furthermore, § 2P1.1(b)(2) only addresses escape from non-secure facilities, to which the defendant would not have been likely to have been sent. Moreover, since failure to report under 18 U.S.C. § 3146(c) may be subject to the affirmative defense of “uncontrollable circumstances,” the commission might well have concluded that there was no need for a separate consideration of the excuse in sentencing. The court stated that the gist of the defendant’s argument was about grounds for departure, not the validity of the guidelines. U.S. v. Savage, 888 F.2d 528 (7th Cir. 1989).
7th Circuit rules that classification of penalties according to weight of drugs does not violate equal protection. (120) The 7th Circuit held that it is constitutional for Congress to determine permissible sentences based upon the quantity of drugs possessed. Judgments concerning how heavily to punish crimes are for Congress to make. It has never been considered a feasible judicial undertaking to codify the federal criminal code to make it the product of a single overarching conception of rational punishment, urgent as this task may be. U.S. v. Rose, 881 F.2d 386 (7th Cir. 1989).
7th Circuit holds that “individualization” of sentences is not a constitutional right. (120) The 7th Circuit rejected the argument that the guidelines violated due process because they deprived judges of their power to individualize sentences. The court wrote that there was no constitutional right to an individualized sentence. Further, the offense and offender characteristics still allows some individualization of sentences. U.S. v. Pinto, 875 F.2d 143 (7th Cir. 1989).
8th Circuit rejects higher standard of proof for relevant conduct that significantly increases sentence. (120) Defendants pled guilty to conspiring to distribute more than 500 grams of methamphetamine, but the district court found them responsible for more than 15 kilograms. Defendants argued that the district court violated due process when it refused to require proof of drug quantity facts by clear and convincing evidence. Previous Eighth Circuit cases have adopted (although never actually applied) the Third Circuit’s view in U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990) that due process may require a heightened standard of proof for “extremely disproportionate” sentencing factors. The Eighth Circuit noted that these cases were based on a flawed reading of Supreme Court precedent, and in any event, were made obsolete by Booker. Booker granted sentencing judges far more discretion to impose sentences outside the applicable guideline range. This change eliminated any due process concern requiring a heightened standard of proof for fact finding that has an “extremely disproportionate” impact on the defendant’s advisory sentencing range. U.S. v. Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009).
8th Circuit finds plea agreement for specific sentence did not improperly restrict court’s Booker discretion. (120) Rule 11(c)(1)(C) plea agreements are binding on the court. Defendant argued that this unconstitutionally restricted the district court’s discretion under Booker. The Eighth Circuit disagreed. A Rule 11(c)(1)(C) agreement is unique in that it is binding on the district court, but only after the court accepts the agreement. If the court does not accept the agreement, the court is not bound to sentence defendant by its terms. Booker does not prevent a district court from accepting a Rule 11(c)(1)(C) plea agreement. U.S. v. Kling, 516 F.3d 702 (8th Cir. 2008).
8th Circuit finds no abuse of discretion in sentence at bottom of guideline range. (120) Defendant argued that although the court stated that it had considered the § 3553(a) factors, had it done so, it would have imposed a sentence far below defendant’s 188-month sentence. The Eighth Circuit found that the district court did not abuse its discretion by imposing a sentence at the bottom of the properly calculated guideline range. The appellate court’s review of the ultimate sentence, including the district court’s application of the § 3553(a) factors, is for reasonableness, which is presumed on appeal when the sentence falls within a properly calculated guideline range. Here, after the district court noted that it had examined all of the § 3553(a) factors, it discussed the impact defendant could have made within his reservation and the grief the court experienced in having to impose the sentence on a “young talented Indian person.” The district court need not “categorically rehearse” each of the factors. Where the court has before it the information relevant to the factors, the appellate court will presume the factors were considered when the district court determined the sentence. U.S. v. Whirlwind Solder, 499 F.3d 862 (8th Cir. 2007).
8th Circuit upholds nine-level increase for perjury conviction arising out of gruesome murder. (120) Defendant and her boyfriend murdered a man, stole his property, and traveled across state lines. At her boyfriend’s murder trial in state court, defendant testified that after watching her boyfriend kill the victim, she helped him dismember and dispose of the body and conceal the murder. Defendant later pleaded guilty in federal court to interstate transportation of the murder victim’s stolen property. At sentencing, she testified that she did not know what happened to the victim’s body and that she had a minimal role in covering up the murder. Based on her sentencing testimony, she was later convicted of perjury. At sentencing, the district court imposed the statutory maximum of 60 months, which represented a nine-level increase above the guideline range. The court explained that defendant made many false statements at her prior federal sentencing in order to obtain a lower sentence, that her lies had prolonged the victim’s family’s suffering, and that she had received no sanction for her role in disposing of the victim’s body. The Eighth Circuit held that the sentence was justified by the “exceptional circumstances” of defendant’s perjury conviction and therefore was reasonable. U.S. v. Miller, 479 F.3d 984 (8th Cir. 2007).
8th Circuit says conflating departure and § 3553(a) analysis is harmless if sentence is reasonable. (120) In U.S. v. Haack, 403 F.3d 997 (8th Cir. 2005), the court held that district courts should ordinarily determine whether a departure from the guidelines range is warranted before deciding whether to rely on the factors set forth in 18 U.S.C. § 3553(a) to impose a sentence that varies from the advisory guidelines range. At defendant’s sentencing, the court treated “departure” and “variance” as synonymous. The Eighth Circuit found the district court’s “conflation of departure considerations and variance analysis was error,” but held that the error was harmless because the ultimate sentence imposed was not unreasonable. U.S. v. Miller, 479 F.3d 984 (8th Cir. 2007).
8th Circuit holds that court’s consideration of § 3553(a) factors prior to departure was error. (120) The government challenged the district court’s consideration of the § 3553(a) factors prior to considering the government’s § 5K1.1 motion. The Eighth Circuit agreed that this was error. Post-Booker, the first step in sentencing a defendant is to determine the appropriate advisory guideline range, including traditional departures. Post-Booker, guideline departures remain an important and relevant part of determining a defendant’s advisory guideline range. The 120-month sentence imposed here was unreasonable – it was not justified by the § 3553(a) factors relied upon by the district court, and the court’s error in failing to first consider the § 5K1.1 departure motion was not harmless. The fact that defendant was addicted to methamphetamine did not support shaving off 14 years of his sentence. The addiction may have motivated his participation in the conspiracy, but he was more than a mere user. The court also erred by giving significant weight to an improper factor – namely the government’s refusal to grant defendant use immunity for information he provided during debriefing. The disparity between defendant’s guideline range and the 120-month received by a co-conspirator also did not support a lesser sentence, since defendant and the co-conspirator were not similarly situated. U.S. v. Hodge, 469 F.3d 749 (8th Cir. 2006).
8th Circuit holds that court erred in requiring enhancements to be proven beyond a reasonable doubt. (120) The government argued that the district court erred when it ruled that it could not enhance defendant’s sentence under § 2B1.1(b)(1)(C) and § 2B5.1(b)(5) because the facts supporting each respective enhancement were not alleged in the indictment. The Eighth Circuit agreed that this was error. The court also erred in requiring the enhancement to be proven beyond a reasonable doubt. In most cases, § 6A1.3 requires sentencing courts to apply guidelines enhancements that are proven by a preponderance of the evidence. The district court’s failure to do so here resulted in an incorrect advisory guidelines calculation. The error was not harmless, given the difference between the PSR’s recommended guidelines range and the range calculated by the district court. U.S. v. Okai, 454 F.3d 848 (8th Cir. 2006).
8th Circuit rejects downward variance based upon defendant’s age and history of drug abuse. (120) Defendant pled guilty to methamphetamine charges, which, because of his three previous drug convictions, subjected him to an enhanced sentence under 21 U.S.C. § 851. Although his guideline range was 262-327 months, the district court sentenced him to the statutory minimum of 120 months (a variance of about 54 percent from the bottom of the advisory guideline range) based primarily on his age and his history of drug abuse. The Eighth Circuit reversed, since defendant’s characteristics in these areas were not exceptional. Drug addiction or abuse is not a proper reason to impose a downward variance, absent exceptional circumstances. See 18 U.S.C. § 3553(a)(5)(A); U.S.S.G. § 5H1.4. Defendant was more than a simple user of drugs. Two of his prior convictions were for distribution-related offenses, and the current offense was also for possession with intent to distribute. Defendant’s age was also not exceptional. He was 44 years old, healthy, and had no history of mental health problems. Defendant qualified as a career offender, and his drug addiction and age did not present exceptional circumstances that would warrant such an exceptional variance. U.S. v. Lee, 454 F.3d 836 (8th Cir. 2006).
8th Circuit rejects downward variance due to internally inconsistent reasoning. (120) At resentencing ordered in light of Booker, the district court found that defendant was responsible for 1.5 kilograms of cocaine base, which resulted in an adjusted offense level of 40, and an advisory guideline range of 360 months to life. The court varied downward from the advisory range and sentenced defendant to 240 months’ imprisonment. In explaining its decision to vary, the court discussed the credibility of the witnesses whose testimony established the quantity of crack trafficked by defendant, noting that most of the witnesses were cooperating witnesses who were seeking a benefit from the testimony, they didn’t keep records, and were relying on their memory. The court also noted that it did not believe that the distinction between powder and crack cocaine was “scientifically justified” and resulted in sentences “out of proportion” to the crime. The Eighth Circuit held that the variance was unreasonable because the court’s reasoning was internally inconsistent. In calculating the advisory guideline range, the court was required to make a finding about the credibility of the prosecution’s witnesses who testified about drug quantity. By finding that defendant’s base offense level was 38 based on a quantity of 1.5 kilograms of crack, the court necessarily credited the testimony of those witnesses. To then vary from the range because those witnesses may not have been credible would contradict the court’s own credibility finding made in determining the advisory range. Moreover, the court’s view that the powder/crack distinction was not justified and resulted in out of proportion sentences was not a sufficient basis to affirm the sentence imposed. The distinction does not result in an unreasonable sentence. U.S. v. Brown, 453 F.3d 1024 (8th Cir. 2006).
8th Circuit holds that sentencing under mandatory rather than advisory guidelines was not harmless error. (120) Defendant preserved his Booker claim by raising a Blakely argument in the district court, and thus the government had the burden of establishing that the preserved Booker error was harmless. The Eighth Circuit held that sentencing under the mandatory guidelines was not harmless error since it was not persuaded beyond a reasonable doubt that the district court would not have imposed a lower sentence if it had known the guidelines were advisory rather than mandatory. Defendant had requested a downward departure based on his “serious mental health issues. In refusing to depart the court found that “[i]ts unfortunately the case that [defendant’s] condition is not outside the heartland” and that although his condition was serious and severe, the court “see[s] a number of severe or serious mental health issues.” This was a “classic mandatory guidelines analysis.” Thus, although the court rejected defendant’s request for a downward departure under the mandatory guidelines, the court acknowledged that it was “certainly clear that [defendant] has severe mental health issues, and sentenced him to the lowest end of the guideline range. U.S. v. Anderson, 452 F.3d 87 (1st Cir. 2006).
8th Circuit holds that probation was unreasonable sentence for defendant who possessed several firearms. (120) Defendant pled guilty to possession of a firearm by an unlawful user of a controlled substance, possession of an unregistered short-barreled shotgun, and possession of a stolen firearm. Although his guideline range was 46-57 months’ imprisonment, the district court sentenced defendant to five years of probation. The Eighth Circuit held that the district court abused its discretion. The district court considered some § 3553(a) matters, such as the need to keep defendant from committing further crimes. However, the court paid little notice to other relevant matters, such as the requirement in § 3553(a)(2) (B) that a sentence should deter others from committing similar crimes. In fact, the court explicitly noted that a sentence of probation “would do little to deter others,” but thought probation would be sufficient to keep defendant from re-offending. The court also did not give proper weight to the seriousness of defendant’s offenses. Police found stolen property throughout defendant’s residence, including a high-powered rifle, and the short-barreled shotgun. Finally, the sentence did not meet the requirement that sentences should “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Defendant’s rehabilitation could not be allowed to trump all the other considerations in § 3553(a). U.S. v. Medearis, 451 F.3d 918 (8th Cir. 2006).
8th Circuit holds that court erred in not considering whether to impose obstruction increase. (120) The PSR recommended an obstruction of justice increase under U.S.S.G. § 3C1.1 because defendant’s trial testimony materially differed from and contradicted his earlier proffers to law enforcement. The district court, pursuant to its policy not to apply enhancements not found by a jury, denied the government’s motion seeking the obstruction enhancement. The court made no factual inquiry or analysis into whether defendant actually obstructed justice, but instead suggested that U.S. v. Booker, 543 U.S. 220 (2005), required the prosecution to bring a perjury charge against defendant because the enhancement increased defendant’s maximum sentence by a factor not found by the jury. The Eighth Circuit held that the district court erred in not considering whether to impose an obstruction of justice increase. Booker did not change how the guidelines are calculated. In determining the advisory guidelines sentence, the district court must rule on all applicable guidelines departures and adjustments. Application of the obstruction increase is not discretionary if the requisite factual findings are made. U.S. v. Smith, 450 F.3d 856 (8th Cir. 2006).
8th Circuit holds that downward variance to probation for tax evader was unreasonable. (120) Defendant was convicted of willfully failing to file federal income tax returns for the years 1997-1999, respectively. Although defendant’s guideline range was 12-18 months’ imprisonment, the district court sentenced defendant to two years of probation and 300 hours of community service. The court found no reason to sentence defendant to prison, finding that the sentence it imposed, and the anticipated cost of back taxes, interest and penalties, constituted a sufficient sentence. The court also mentioned that this was defendant’s first offense “after a long life,” defendant used “relatively unsophisticated means” to commit the crime, he cooperated fully with authorities, and expressed remorse. The Eighth Circuit held that the sentence was unreasonable. Defendant’s sentence amounted to a 100 percent variance from the guidelines. Such an extraordinary variance must be supported by extraordinary circumstances. Given the long duration of defendant’s criminal conduct, the tremendous amount of taxes evaded, and his enlistment of an employee to assist with the crime, the district court failed to adequately consider the seriousness of defendant’s offense. Under the circumstances, any sentence without a term of imprisonment would be unreasonable. U.S. v. Ture, 450 F.3d 352 (8th Cir. 2006).
8th Circuit upholds sentence above guideline range for defendant who severely scalded toddler in bathtub. (120) Defendant pled guilty to assault resulting in serious injury following the bathwater burning of his two-year old daughter. The district court imposed a sentence of 60 months, which was three months above the top of his advisory guideline range. The Eighth Circuit upheld the sentence as reasonable, rejecting defendant’s argument that the sentence was the product of the court’s emotion rather than the result of proper judicial reasoning. Although the court characterized the crime as “torture,” this can be a ground for an upward departure from the guideline range. See U.S.S.G. § 5K2.8. The court’s use of the word torture was not emotional hyperbole, but a deliberate finding of fact in support of the sentence. The court also properly considered the § 3553(a) factors. Given the brutality of the crime, the defenseless and prolonged suffering of the victim, the severity of the injuries, the resulting permanent disfigurement and the complete abdication of defendant’s most basic responsibility as a parent, the 60-month sentence was reasonable. U.S. v. Little Hawk, 449 F.3d 837 (8th Cir. 2006).
8th Circuit says court could reduce sentence of later-convicted defendant to reduce sentence disparity. (120) Defendant, a low-level participant in a drug conspiracy, committed perjury before a grand jury. Although defendant’s advisory guideline range was 70-87 months, the district court sentenced her to 24 months. In addition to discussing a number of § 3553(a) factors, the district court also expressed a desire not to impose disparate sentences. Another member of the same conspiracy who was very similarly situated to defendant was sentenced to only 15 months. Both defendants had a criminal history of I, both committed the same crime in the same conspiracy, and neither cooperated. The only real difference other than timing was that defendant pled guilty while the co-defendant went to trial (which would normally indicate that defendant should receive a lower sentence). However, because of the timing of her conviction, defendant ended up with a much higher offense level. By the time she was sentenced, the government had developed more information about the scope of the conspiracy and was able to attribute more methamphetamine to the conspiracy. The Eighth Circuit held that the district court did not abuse its discretion in fashioning a sentence that attempted to address the disparity in sentences between two nearly identically situated individuals who committed the same crime in the same conspiracy. The only distinction was the timing of the indictments. There may be many cases where a defendant received a higher guideline range when he or she pleads or is tried later in the conspiracy, after the government has more fully developed its case. However, under the facts of this case, the district court did not improperly apply § 3553(a)(6) or abuse its discretion. U.S. v. Krutsinger, 449 F.3d 827 (8th Cir. 2006).
8th Circuit holds that limited criminal history and drug-free status did not support large variance. (120) Defendant pled guilty to conspiracy to distribute 50 or more grams of cocaine base. Although his applicable guideline range was between 70-87 months, the district court sentenced him to 30 months’ imprisonment. As reasons for the variance, the court cited defendant’s good record, and the fact that he had been drug-free for the previous nine months. The Eighth Circuit held that the variance was not supported by the record. The further the district court varies from the presumptively reasonable guideline range, the more compelling the justification based on the § 3553(a) factors must be. The 30-month sentence was a 57 percent downward variance from the bottom of defendant’s advisory guideline range. Defendant’s limited criminal history was already reflected in his guideline sentence (he was assigned a criminal history of I) and therefore it was unreasonable for the court to use that criminal history as justification for an extraordinary variance. In addition, while remaining drug-free for nine months was commendable, it was not an extraordinary factor sufficient to justify such a large variance from the presumptively reasonable guideline range. U.S. v. Bryant, 446 F.3d 1317 (8th Cir. 2006).
8th Circuit bars consideration of potential disparity between federal sentence and sentence defendant might have received in state court. (120) Defendant pled guilty to violating 18 U.S.C. § 2425, using interstate facilities to transmit information about a minor in order to entice or solicit criminal activity. He requested a variance from the advisory guidelines based on the potential disparity between the sentence he might have received had he been convicted in Arkansas state court and the sentence he faced as a result of his conviction on the federal charge. The Eighth Circuit held that the sentencing court was neither required nor permitted to consider such a potential disparity. See U.S. v. Deitz, 991 F.2d 443 (8th Cir. 1993) (possible discrepancy between state and federal sentences is a factor the Sentencing Commission considered but chose not to account for in the guidelines.) Nothing in Booker cast doubt on the decision in Deitz. Unwarranted sentencing disparities among federal defendants remains the only consideration under § 3553(a)(6), both before and after Booker. U.S. v. Jeremiah, 446 F.3d 805 (8th Cir. 2006).
8th Circuit says probation for bank fraud was unreasonable sentence. (120) Defendant’s guideline range for his bank fraud offense was 24-30 months, but the district court sentenced defendant to time served (he had served no time) and five years’ of supervised release, which included a 12-month term of house arrest. The Eighth Circuit found the record insufficient to support such a “substantial deviation from the results contemplated by Congress” and thus the sentence was unreasonable. The court cited defendant’s post-offense rehabilitation and considered other facts it believed took the case out of heartland of bank fraud cases, including the social concerns of the rural agricultural communities struggling to make ends meet, prompting men like defendant to resort to fraud, the fact that placing defendant in jail would jeopardize his new position of running a cattle operation for the community, and that the bank was partially responsible because it should have known that defendant’s numbers were not right and thus should not have extended the loans. However, defendant’s alleged post-offense rehabilitation was not extraordinary. The socio-economic status of the rural midlands and any insinuation that the bank somehow shared the blame with defendant was irrelevant. Finally, limiting defendant’s jail time in order to help him retain his worth in the community, while relevant, did not support the extent of the departure here. U.S. v. Givens, 443 F.3d 642 (8th Cir. 2006).
8th Circuit holds that substantial downward variance was unreasonable. (120) Defendants pled guilty to methamphetamine conspiracy charges. The district court sentenced the first defendant to 12 months and one day in prison, a substantial downward variance from the bottom of her advisory guideline range. One month later, a different judge sentenced the second defendant to 87 months in prison, the bottom of her advisory guideline range. The Eighth Circuit held that the first defendant’s sentence was unreasonable, and the district court did not adequately consider a number of relevant factors in determining the second defendant’s sentence. The 12-month sentence for the first defendant was 83% below the 70-month bottom of her guideline range. An extraordinary reduction must be supported by extraordinary circumstances. While defendant’s post-offense rehabilitation was relevant in evaluating the § 3553(a) factors, it did not justify an 83% variance. Moreover, it resulted in unwarranted sentencing disparities among defendants with similar records who have been found guilty to similar conduct. While the second defendant’s sentence was presumptively reasonable, a number of circumstances made the case highly unusual. Although the prosecutor stated at sentencing that both defendants were similarly situated members of the conspiracy, the second defendant stipulated to being involved with 300 grams of pseudoephedrine, while the first defendant’s plea agreement stipulated to only 100 grams. The second defendant was the first member of the conspiracy to plead guilty, and her full cooperation played a role in the rapid guilty pleas entered by her co-conspirators. Most importantly, the court gave too little weight to the extreme disparity between the sentences imposed on similarly situated defendants. U.S. v. Lazenby, 439 F.3d 928 (8th Cir. 2006).
8th Circuit approves substantial upward variance where defendant refused to disclose childrens’ location. (120) Defendant was charged in state court with parental kidnapping and terrorizing after he failed to return his children to their mother after a weekend visit. The children were never found. After an investigation uncovered six firearms, defendant was charged in federal court with being a felon in possession of a firearm. The district court made a criminal history departure under § 4A1.3 because of a number of uncounted prior convictions and the pending state kidnapping offenses. After considering the § 3553(a) sentencing factors, the court found that a guideline range of 57-71 months’ (after the upward departure) was insufficient, and imposed a non-guideline sentence of 120 months, the statutory maximum. The Eighth Circuit affirmed. The district court properly considered an uncounted conviction for carrying a concealed weapon (even if the weapon was not a firearm) as evidence of prior similar or serious criminal conduct. Although the pending state charges did not involve “prior” criminal conduct, it still was properly considered under § 4A1.3(a)(2)(E), since it suggested a substantial likelihood that defendant would commit future crimes and showed his capacity for violence. It was apparent that defendant intended to persist in depriving his children of their mother and to prevent her from reuniting with them. Because the court carefully considered the § 3553(a) factors, the ten-year non-guideline sentence was not unreasonable, and assuming the children were still alive, would ensure they did not suffer future harm at the hands of their father. U.S. v. Porter, 439 F.3d 845 (8th Cir. 2006).
8th Circuit holds that court could review sentence for reasonableness even though defendant received substantial assistance departure. (120) The district court applied the career offender guideline, found defendant’s sentencing range to be 188-235 months, and then granted the government’s motion for a downward departure based on defendant’s substantial assistance. The government did not make a specific sentencing recommendation, but the 96-month sentence imposed represented a reduction of about 50 percent from the bottom of the advisory guideline range. Defendant challenged the reasonableness of the sentence imposed, and the government argued that the appeal was an impermissible challenge to the extent of the court’s discretionary downward departure. The Eighth Circuit disagreed. The fact that an advisory guidelines determination involves a § 5K1.1 departure does not shield the overall sentence from review for reasonableness. Review remains because “an unreasonable sentence would be imposed ‘in violation of law’ within the meaning of § 3742(a).” The sentence was reasonable. The court properly calculated the advisory guideline range, permissibly applied a § 5K1.1 departure, and took that resulting range and departure into account along with the other § 3553(a) factors to arrive at the 96-month sentence. U.S. v. Berni, 439 F.3d 990 (8th Cir. 2006).
8th Circuit says 60 percent downward variance must be supported by “extraordinary circumstances.” (120) Defendant pled guilty to possessing and distributing cocaine base. His advisory guideline range was 37-48 months, and the district court imposed a 15-month sentence. The Eighth Circuit held that the 60 percent reduction was “an extraordinary variance” that was not supported by “comparably extraordinary circumstances.” Defendant’s lack of criminal history was taken into account when the safety valve eliminated an otherwise applicable mandatory minimum sentence. The small amount of crack cocaine seized during his two offenses was taken into account in determining his guideline range. Substantially reducing the resulting guidelines range sentence based upon drug quantity was unreasonable because it was a fair inference that defendant distributed additional quantities during the six months between the two drug transactions. U.S. v. Claiborne, 439 F.3d 479 (8th Cir. 2006).
8th Circuit remands where record did not support wide divergence from guideline range. (120) Defendant pled guilty to possession of an unregistered firearm. Although defendant’s guideline sentencing range was 37-46 months, the district court sentenced him to 12 months and one day. The Eighth Circuit held that remand was required because it could not tell from the record whether the sentence was unreasonable in light of the § 3553(a) factors considered at sentencing (the nature of the circumstances of the current offense, including the victim, defendant’s characteristics, and the seriousness of the offense). Nothing about the victim was mentioned at sentencing, and the district court termed the offense “extremely serious.” The only fact identified by the district court that weighed toward a more lenient sentence was defendant’s lack of criminal history. Since a guidelines sentence already reflects a defendant’s criminal history, wide divergence from the guideline sentence based solely on this criteria would conflict with the need to avoid unwarranted sentence disparities among defendants with similar record who have been found guilty of similar conduct. U.S. v. Myers, 439 F.3d 415 (8th Cir. 2006).
8th Circuit remands because it was unable to conduct meaningful review of reasonableness of sentence. (120) Defendant was convicted of drug conspiracy charges, and based on his status as a career offender, had a guideline range of 188-235 months. The district court sentenced him to the statutory mandatory minimum sentence of 60 months, stating only that “I think the mandatory minimum is sufficient penalty under the circumstances that have been placed here in the record.” The Eighth Circuit held that the record was inadequate for it to determine the reasonableness of the sentence. The court did not discuss whether a guidelines departure was appropriate, what non-guidelines § 3553(a) factors predominated, or what combination of departures and variances warranted a 60-month sentence. Although the court’s comment that the sentence was imposed “under the circumstances that have been placed here in the record,” something more was needed. U.S. v. Rivera, 439 F.3d 446 (8th Cir. 2006).
8th Circuit holds that sentence was unreasonable where no reasons were given for variance. (120) Defendant pled guilty to conspiracy to use a minor for purposes of producing an explicit visual depiction of sexual conduct, 18 U.S.C. § 2251(a). The bottom of defendant’s guidelines sentencing range was above the five-year statutory penalty. Rather than sentencing defendant to the statutory maximum, as the government urged, the court sentenced him to 48 months in prison, to be served concurrently with an unrelated state sentence. The Eighth Circuit held that the sentence was unreasonable. For a court to carry out the appellate review mandated by Booker, it is essential that the district court explain why it imposed a sentence below the guidelines range or a limiting statutory maximum and made the sentence concurrent to the undischarged portion of a sentence for unrelated crimes. All of the factors cited by the court at sentencing actually argued against such leniency for defendant. The court found that defendant was “an initial mover” in sexually exploiting “a vulnerable minor,” a “very serious” crime that “not only has to be punished but deterred.” Moreover, the court noted defendant’s “extensive criminal history” and found that it needed “to protect the public” from defendant. With the concurrent sentences, defendant would only serve 18 months in prison for the current offense, which was not a “reasonable incremental punishment” for the crime. U.S. v. Shafer, 438 F.3d 1225 (8th Cir. 2006).
8th Circuit rejects substantial downward variance where no explanation given by court. (120) Defendant pled guilty to being a felon in possession of a firearm. The district court sentenced him to 36 months in prison, substantially below the advisory guideline range of 63-78 months’ imprisonment. The Eighth Circuit held that the sentence was unreasonable. For a court to properly carry out the appellate review mandated by Booker, it is essential that the district court explain the reasons why it has imposed a sentence outside the guideline sentencing range in a particular case. Although the court need not recite each § 3553(a) factor, the court should explain both the decision to vary and the extent of the variance. Here, the district court sentenced defendant only two weeks after Booker was decided, before these principles even began to evolve. The court granted a substantial downward variance with no explanation of why this sentence was warranted by the other § 3553(a) factors. Moreover, the violent nature of defendant’s relevant conduct (armed robbery) argued against leniency. U.S. v. Gatewood, 438 F.3d 894 (8th Cir. 2006).
8th Circuit holds that defendant did not meet burden of showing his sentence was not influenced by Booker error. (120) Defendant was convicted by a jury of a drug conspiracy involving 50 to 500 grams of methamphetamine. Although the court treated the guidelines as mandatory, it considered the jury finding of drug quantity to be binding, and refused to hold defendant responsible for more drugs or to apply a firearm enhancement. It also enhanced his sentence for obstruction of justice on the assumption that the guilty verdict meant the jury had found his testimony to be false. Both sides agreed that the district court committed Booker error by treating the guidelines as mandatory and by applying an obstruction enhancement based upon the jury’s general verdict. The Eighth Circuit agreed. The court also erred by refusing to make independent determinations as to the quantity for drugs for which defendant was responsible and as to whether he possessed firearms during his offense. As the beneficiary of the Booker error, defendant had to show that his sentence was not substantially influenced by it, and he did not meet that burden. The PSR recommended that defendant be held responsible for at least 1.5 kilograms of meth and enhancements for obstruction of justice and possession of a firearm. Had these enhancements been applied, defendant would have had a total offense level of 38 rather than 32, and a guideline range of 324-405 months instead of 168-210 months. Thus, the errors clearly influenced his sentence. U.S. v. Gutierrez, 437 F.3d 733 (8th Cir. 2006).
8th Circuit holds that finding that defendant had two prior controlled substances convictions did not violate Sixth Amendment. (120) The district court sentenced defendant with an enhanced offense level under U.S.S.G. § 2K2.1(a) (2) because it found that defendant had committed his current firearms offenses after two prior felony convictions for controlled substance offenses. The Eighth Circuit rejected defendant’s claim that the district court violated his Sixth Amendment rights by finding both the fact and nature of his prior convictions. The Booker exception for prior convictions applies both to the fact of a prior conviction and to the nature of that conviction. See U.S. v. Griffin, 418 F.3d 881 (8th Cir. 2005). The Supreme Court has not implicitly overruled Almendarez-Torres v. U.S., 523 U.S. 224 (1998) (approving use of prior convictions to increase a defendant’s sentence). Finally, although the district court incorrectly relied on the PSR, see Shepard v. U.S., 544 U.S. 13 (2005), the court’s ultimate finding was not clearly erroneous. During the hearing on his motion to suppress, defendant admitted under oath two prior felony convictions for drug trafficking offenses, one in a Texas federal court and one in a Florida federal court. U.S. v. Perry, 437 F.3d 782 (8th Cir. 2006).
8th Circuit holds that court erred in finding Sixth Amendment barred sentence enhancements. (120) The government argued that, based on Booker, the district court erred in finding that the Sixth Amendment precluded enhancing defendants’ sentences based upon facts not proven to a jury. The government preserved any Booker error by arguing that Blakely v. Washington, 542 U.S. 296 (2004) did not apply to the federal Sentencing Guidelines. The Eighth Circuit held that court clearly erred in viewing the Sixth Amendment’s limitation of the guidelines as excluding all sentence enhancements based upon the courts own fact finding, even if they are discretionary and within the statutory maximum. Remand was required unless the error was harmless, and the burden of proving harmless error fell on defendants, the beneficiaries of the error. Defendants could not meet this burden. U.S. v. Idriss, 436 F.3d 946 (8th Cir. 2006).
8th Circuit holds that variance from guidelines does not violate Ex Post Facto Clause. (120) Defendant claimed that the district court’s variance above the guidelines violated the ex post facto and due process clauses. The Eighth Circuit disagreed. The ex post facto and due process clauses required that defendant have fair warning of the punishment for the crimes he committed. Defendant’s 96-month sentence was below the 10-year statutory maximum of which he had fair warning. U.S. v. Kelly, 436 F.3d 992 (8th Cir. 2006).
8th Circuit approves above guideline range sentence for felon in possession who fired gun at girlfriend’s car. (120) Defendant was convicted of being a felon in possession of ammunition. Although defendant had a guideline range of 70-87 months, the district court imposed a 96-month sentence. Defendant argued that the court could not sentence him above the guideline range because it failed to make additional fact findings beyond those made by the jury. The Eighth Circuit held that the district court properly sentenced defendant above the guideline range based on the § 3553(a) sentencing factors, and the sentence was reasonable. One factor in § 3553(a) (5) is “any pertinent policy statement.” guideline § 5K2.6 states that the “discharge of a firearm might warrant a substantial sentence increase.” Although not directly stating so, the district court did consider defendant’s act of shooting at the car containing his girlfriend and her children when it sentenced him. It is not error to rely on factors in § 3553(a) and to vary from the guideline range. U.S. v. Kelly, 436 F.3d 992 (8th Cir. 2006).
8th Circuit holds that error finding upward departures “no longer existed” was harmless. (120) Defendant and his girlfriend were convicted of second degree murder in connection with the death of their four-year old son. Both defendants had guideline ranges of 151-188 months. The district court determined that upward departures no longer exist after U.S. v. Booker, 543 U.S. 230 (2005) and, applying the sentencing factors contained in 18 U.S.C. § 3553(a), sentenced them both to 228 months’ imprisonment. The Eighth Circuit ruled that the court erred in concluding that upward departures no longer existed, but the error was harmless. The court should have followed three steps: (1) determined the applicable guideline range without consideration of any departure factors; (2) considered the departure provisions in Chapter 5 Part K and § 4A1.3 of the guidelines; and (3) considered the rest of the § 3553(a) factors. The district court’s erroneous belief that it could not depart upward did not deprive defendant of any substantial or even beneficial rights. He was deprived merely of the opportunity to receive an upward departure and perhaps, a longer sentence. Finally, defendant failed to establish that his ultimate sentence was unreasonable. The district court noted that it was “one thing to cause the death of your child. But with this amount of torture that was going on I am, of course, going to take that into account in sentencing here.” U.S. v. Sitting Bear, 436 F.3d 929 (8th Cir. 2006).
8th Circuit upholds use of preponderance of the evidence standard where guidelines are considered advisory. (120) Defendant argued that the district court violated the Sixth Amendment by making findings of fact using a preponderance of the evidence standard when imposing a sentence. However, the Eighth Circuit noted that judicial fact-finding using a preponderance of the evidence standard is permitted provided that the guidelines are applied in an advisory manner. See U.S. v. Wade, 435 F.3d 829 (8th Cir. 2006).
8th Circuit remands for further consideration of § 3553(a) factors where sentence imposed was 1/3 of career offender range. (120) Defendant was convicted of crack cocaine charges, which, based in part on his status as a career offender, resulted in a guideline range of 360 months to life. The district court imposed a 120-month sentence, noting defendant’s current age and the young age at which he committed the prior offenses. The Eighth Circuit rejected the government’s argument that the sentence was unreasonable, but nonetheless remanded for a “more explicit and thorough consideration” of all the factors listed in 18 U.S.C. § 3553(a). U.S. v. Feemster, 435 F.3d 881 (8th Cir. 2006).
8th Circuit holds that error in sentencing defendant under mandatory guidelines was not harmless. (120) Defendant was convicted of mailing threatening communications, extortion and threatening the use of a weapon of mass destruction. At sentencing, the court granted defendant’s motion for a downward departure and sentenced him to concurrent terms of 120 months, 140 months and 140 months. The court erred in sentencing defendant under a mandatory guidelines regime, and defendant preserved this issue at sentencing. The Eighth Circuit had “grave doubts” that the error was harmless, despite the downward departure. Although the district court sentenced defendant well below the guidelines range and noted that if the Sentencing Guidelines were later found to be unconstitutional, the court would impose the same sentence, the court also added that under an advisory scheme, the court would sentence defendant “to at least ten years.” It was unclear the court would have given the same sentence under an advisory system. U.S. v. McMorrow, 434 F.3d 1116 (8th Cir. 2006).
8th Circuit holds Booker error harmless where alternative sentence was statutory maximum. (120) Defendant pled guilty to child pornography offenses. The court imposed a 137-month sentence. In response to defendant’s argument that the sentence violated his rights under Blakely v. Washington, 542 U.S. 296 (2004), the district court announced a higher alternative sentence – 180 months, the statutory maximum penalty – in the event the guidelines were held unconstitutional. The Eighth Circuit ruled that any Booker error was harmless beyond a reasonable doubt. The sentencing record contained nothing to suggest that defendant would have received a more favorable sentence had the court anticipated Booker’s advisory guidelines regime. The court correctly applied the mandatory guidelines, imposing a substantial upward departure and a discretionary consecutive sentence. The 137-consecutive sentence was not unreasonable, given defendant’s decades of abuse of his children, his grandchildren, and others, his extensive collection of child and adult pornography, and evidence that he distributed child pornography on the Internet. In addition, the court’s detailed explanation of its alternative sentence demonstrated that it considered the sentencing factors enumerated in 18 U.S.C. § 3553(a). U.S. v. Schafer, 429 F.3d 789 (8th Cir. 2005).
8th Circuit holds that error in relying on judge-found facts under mandatory guidelines was harmless error. (120) Defendant was convicted of two counts of sexual abuse of a minor, and was sentenced to 168 months concurrent terms under the mandatory federal sentencing regime. The Eighth Circuit rejected defendant’s challenges to his conviction and sentence. The Supreme Court granted defendant’s petition for certiorari, vacated the appellate court judgment and remanded for further consideration in light of U.S. v. Booker, 543 U.S. 220 (2005). The Eighth Circuit held that the district court’s error in sentencing defendant under the mandatory sentencing regime was harmless error, and reinstated its prior opinion. The district court declined to impose a number of enhancements sought by the government, stating that they were “very close” cases but that it would give defendant “the benefit of the doubt.” As to those enhancements that it did apply, however, the court was “unequivocal.” For example, in applying the obstruction of justice increase, the court remarked that “if there was ever a case of perjury this is it.” In addition, the court sentenced defendant to the maximum term within the applicable range. Given this, there was no basis for believing defendant’s sentence would have been different under an advisory guideline regime. U.S. v. Red Elk, 426 F.3d 948 (8th Cir. 2005).
8th Circuit finds reasonable probability of lower sentence where court stated that sentencing system was unjust. (120) The district court erroneously sentenced defendant under a mandatory guideline system. The Eighth Circuit found that remand was warranted, finding that the bottom of the guideline range sentence and the district court’s statements at sentencing were sufficient to show a reasonable probability that the district court would have imposed a lesser sentence under an advisory guideline regime. In addition to imposing a sentence at the bottom of the guideline range, the court also stated that it believed a system that allowed for such large sentencing discrepancies was unjust. The court emphasized that the present case was an example of what it believed to be unjust. The court noted that the guidelines were “very punitive” and the sentence it imposed might be “unduly punitive.” U.S. v. Jimenez-Gutierrez, 425 F.3d 1123 (8th Cir. 2005).
8th Circuit holds that defendant could not establish that guideline sentence was plain error. (120) After Blakely was decided and while defendant’s appeal was pending, he raised the argument that his Sixth Amendment rights were violated by the court rather than the jury finding the amount of gain from his offenses. The Eighth Circuit held that defendant did not preserve his claim in the lower court since he did not frame any of his objections in terms of the Sixth Amendment or Apprendi. Only those arguments which particularly and unmistakably involve the defendant’s constitutional rights are preserved as a Booker claim. Defendant could not establish plain error. There was no suggestion in the record that the district court felt frustrated or unduly constrained in sentencing defendant or that it considered his sentence under the mandatory guideline system to be unreasonable. The court’s decision to sentence defendant in the middle of the guideline range and to deny his motion for a downward departure was evidence that it found his guideline sentence appropriate under all the circumstances. Moreover, the court expressed explicit satisfaction with the sentence by commenting that it had denied defendant’s motion for a downward departure because defendant’s conduct “falls right smack in the middle of the heartland of fraud” and by stating that its sentence “comports with the statutory objectives at 18 United States Code, section 3553.” U.S. v. Mooney, 425 F.3d 1093 (8th Cir. 2005) (en banc).
8th Circuit remands where court misunderstood impact of Blakely on guidelines. (120) The district court originally departed downward for a number of reasons, and sentenced defendant to three years probation. The appellate court found the departure not justified and remanded. At a resentencing hearing held after the Supreme Court decided Blakely but before it decided Booker, the district court found that Blakely applied to defendant’s case. Because a jury had not made findings on certain sentencing matters, the court refused to apply various enhancements, and granted him a minor role reduction, resulting in a sentencing range of zero to six months. The court chose to impose the same sentence of three years probation. The Eighth Circuit found that the district court’s understanding of Blakely’s effect on the federal guidelines was erroneous. Under Booker, which was not available at the time of the hearing, the district court should have calculated and considered the guideline range as it would have done under the mandatory guidelines, and then considered that advisory range together with the other factors in § 3553(a). U.S. v. O’Malley, 425 F.3d 492 (8th Cir. 2005).
8th Circuit remands where court misunderstood impact of Blakely on guidelines. (120) Defendant pled guilty after the Supreme Court’s decision in Blakely, but before its decision in Booker. Sentencing occurred after Booker, and the district court applied the guidelines as advisory. Although guidelines sentencing range was 18-24 months, the district court found a sentence above this range was warranted by a number of factors listed in 18 U.S.C. § 3553(a). Defendant argued that the district court violated her rights by not applying the Sentencing Guidelines as mandatory, as allegedly guaranteed by her plea, and by imposing a sentence above the applicable range without notice. The Eighth Circuit held that the terms of defendant’s plea agreement did not guarantee a mandatory application of the Sentencing Guidelines. The court’s statement at her pre-Booker plea hearing was nothing more than an accurate statement of how the guidelines applied at the time of her plea. Because in Booker the Supreme Court excised the mandatory application provisions of the guidelines in order to render them constitutional, the district court was obligated to apply the guidelines in an advisory manner at the time of sentencing. Defendant had sufficient notice of the penalties she faced to satisfy due process concerns. She had notice of the 15-year maximum sentence for her crimes, and expressly agreed in her plea agreement that she would have no right to withdraw her plea if the sentence imposed “was other than what the defendant anticipated.” U.S. v. Egenberger, 424 F.3d 803 (8th Cir. 2005).
8th Circuit says judge’s finding that prior conviction under an alias was attributable to defendant did not violate Sixth Amendment. (120) The court found that defendant, under an alias, had a prior drug conviction. Defendant argued that the court’s determination that he was the person who had the conviction violated his Sixth Amendment rights. The Eighth Circuit disagreed. While determining whether a prior conviction under an alias was attributable to a defendant seemingly involves a finding of fact beyond the “fact of a prior conviction” (which is clearly allowed under Supreme Court precedent), such an additional finding is “intimately related” to the prior conviction and does not violate the Sixth Amendment. Moreover, defendant stipulated to the fingerprint examiner’s conclusion that the two sets of fingerprints involved in the prior offense and his current offense were made by the same person. This was close to an admission. U.S. v. Carrillo-Beltran, 424 F.3d 845 (8th Cir. 2005).
8th Circuit holds defendant still required to prove plain error even though no final judgment in court at time of Booker. (120) On remand from the Supreme Court for reconsideration in light of Booker, defendant argued that he was entitled to resentencing because the district court sentenced him based on facts not found by the jury under a mandatory guideline regime. He further contended that he should not be required to show plain error to obtain resentencing because at the time the Supreme Court decided Booker, there was no final judgment in the district court because it had not yet acted on remand to vacate one of his convictions on double jeopardy grounds. The Eighth Circuit ruled that defendant still was required to establish plain error because he forfeited his Sixth Amendment objection in the district court. Defendant could not meet the plain error test – he did not demonstrate a reasonable probability that he would have received a more favorable sentence if the trial court had treated the Sentencing Guidelines as advisory. U.S. v. Carpenter, 422 F.3d 738 (8th Cir. 2005).
8th Circuit remands where it could not determine whether sentencing error was harmless. (120) Defendant’s sentence was in violation of U.S. v. Booker, 543 U.S. 220 (2005) and the Sixth Amendment because he was sentenced under a mandatory guidelines regime on the basis of a fact-based sentencing enhancement that was not tried to a jury. Defendant timely objected to the firearm enhancement at sentencing on the basis of Apprendi v. New Jersey, 530 U.S. 466 (2000); therefore, the Eighth Circuit reviewed for harmless error. Proving harmless error is the government’s burden because they were the beneficiary of the error. The panel ruled that it could not determine whether the sentencing error was harmless, and reversed and remanded for resentencing. Defendant’s 87-month sentence was at the bottom of the guideline range. At sentencing, the court stated that there was “no reason to depart from the sentence authorized by the Sentencing Guidelines, notwithstanding that I do have the discretionary authority to do so.” That statement was made in relation to the denial of defendant’s motion for a downward departure, and did not speak to whether the court would have imposed the same sentence under an advisory guidelines system or would otherwise varied from the applicable guideline range based on factors set forth in 18 U.S.C. § 3553(a). U.S. v. Mendoza-Mesa, 421 F.3d 671 (8th Cir. 2005).
8th Circuit refuses to find that Apprendi waiver in petition to plead guilty was waiver of Booker rights. (120) The District of Nebraska requires every defendant seeking to plead guilty to file a petition to enter a plea of guilty. Defendant’s petition contained a waiver of his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eighth Circuit held that defendant did not waive his rights under U.S. v. Booker, 543 U.S. 220 (2005) through his signed petition to enter a plea of guilty. Although Booker is the logical extension of Apprendi, the waiver was not part of the plea agreement entered into between the government and defendant. The plea agreement signed by both the government and defendant contained a merger clause stating that no promises, agreements, or conditions had been entered into other than those set forth in the plea agreement. Thus, the waiver was not part of the plea agreement. Defendant preserved his Sixth Amendment claim. The same day he was sentenced, the Supreme Court handed down its decision in Blakely v. Washington, 542 U.S. 296 (2004). Defendant filed a motion to correct his sentence under Rule 35(a), arguing that his Sixth Amendment rights were violated. The district court denied the motion, and defendant instituted the current appeal. The panel reversed and remanded for resentencing consistent with Booker. U.S. v. Burling, 420 F.3d 745 (8th Cir. 2005).
8th Circuit rejects Jones and Booker challenge to substantial risk of injury enhancement. (120) Defendant pled guilty to transporting eleven illegal aliens, in violation of 8 U.S.C. § 1324 (A)(1)(ii). Over defendant’s objection, the district court imposed a three-level increase under § 2L1.1(b)(50 for creating a substantial risk of injury. Defendant received a sentence of 18 months. The Eighth Circuit rejected defendant’s claim that the enhancement exposed him to a sentence in excess of the statutory maximum in violation of Jones v. U.S., 526 U.S. 227 (1999). Defendant was not charged under one statute and sentenced, based upon judge-found facts, under a second statute to a higher maximum. Nor was he ever exposed to a higher statutory maximum. The enhancement also did not violate U.S. v. Booker, 543 U.S. 220 (2005). The court proposed two alternate identical 18-month sentences in the event the enhancement or the guidelines in their entirely were held inapplicable. Further, the judge specifically considered the sentencing factors set forth in 18 U.S.C. § 3553(a)(1)-(7). The fact that a co-defendant did not receive the enhancement (the judge avoided constitutional error by declining to impose the increase) did not make the enhancement improper for defendant. U.S. v. Carasa-Vargas, 420 F.3d 733 (8th Cir. 2005).
8th Circuit had “grave doubts” that court would have imposed same sentence if it had not failed to consider guidelines. (120) Based on Blakely v. Washington, 542 U.S. 296 (2004), the district court held the guidelines unconstitutional, and stated that it was “not going to make any guidelines calculations whatsoever.” The court initially expressed an intent to impose the mandatory minimum 120-month sentence, but ultimately imposed a 156-month sentence because defendant had absconded while on pretrial release. After sentencing, the Supreme Court decided U.S. v. Booker, 543 U.S. 220 (2005), which excised the mandatory application of the guidelines, and instead directed courts to consider the guidelines range. The Eighth Circuit remanded for resentencing. The court clearly erred by rejecting the government’s request to use the guidelines as a reference and a guide, because Booker clearly requires sentencing courts to consider the guidelines. The panel had “grave doubts” that the court would have imposed the same sentence if it had not erred by failing to consider the guidelines. The guidelines recommended a sentencing range of 292-365 months. Defendant’s sentence was nowhere near this range, and the district court did not provide a reasoned analysis for imposing a 156-month sentence. U.S. v. Davila, 418 F.3d 906 (8th Cir. 2005).
8th Circuit rules defendant failed to show reasonable probability that court would have imposed lesser sentence absent Booker error. (120) Defendant raised a Booker claim for the first time on appeal. The Eighth Circuit concluded that defendant could not demonstrate a reasonable probability that the district court would have imposed a more favorable sentence under an advisory guidelines system. After reviewing defendant’s extensive history of violent crime and drug use, the district court declared, “You have led a horrible life. You have led a life of crime, a life that exhibited no respect for other people or their property.” The court sentenced defendant at the bottom of the applicable guideline range of 262-327 months. A sentence at the bottom of the guideline range “is insufficient, without more, to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error.” Here, the court found that a sentence of 262 months was “sufficient punishment.” U.S. v. Johnson, 417 F.3d 990 (8th Cir. 2005), overruling recognized by U.S. v. Lee, 553 F.3d 598 (8th Cir. 2009).
8th Circuit says reason for identical alternative sentence was too cryptic to make Booker error harmless. (120) Defendant objected to the PSR’s recommendation of an eight-level enhancement for the amount of loss, because he had not admitted, and a jury had not found beyond a reasonable doubt, facts supporting the increase. The district court overruled the objection and adopted the recommendation of the PSR, imposing a 21-month sentence. The court then imposed an identical alternative sentence, “if Blakely would apply.” The Eighth Circuit ruled that the court’s explanation for the alternative sentence was “too cryptic” to conclude that the alternative sentence was imposed consistent with Booker. “We cannot say that the court contemplated an advisory guidelines system under which it was required to consider the advisory guideline range as one factor among others listed in 18 U.S.C. § 3553(a). U.S. v. Porter, 417 F.3d 914 (8th Cir. 2005).
8th Circuit holds that Booker error did not affect defendant’s substantial rights. (120) On plain error review of a Booker error, “the defendant must show a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” Here, the fact that the district court sentenced Coffey at the low end of the sentencing range was insufficient, without more, to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error.” The defendant argued in his supplemental brief that his personal circumstances (i.e, parenthood, engagement, and efforts toward rehabilitation) suggested that the district court would have imposed a lesser sentence. The Eighth Circuit rejected this argument, given the absence of any discussion of defendant’s personal circumstances by the district court. U.S. v. Coffey, 415 F.3d 882 (8th Cir. 2005).
8th Circuit says defendant admitted amount of loss when he did not object to PSR. (120) Defendant challenged the district court’s sentencing enhancements under Blakely v. Washington, 542 U.S. 296 (2004). The Eighth Circuit found that the objection to the loss enhancement was without merit. A fact in a PSR not specifically objected to is a fact admitted by the defendant for purposes of Booker. U.S. v. McCully, 407 F.3d 931 (8th Cir. 2005). Defendant’s PSR indicated that he fraudulently obtained $293,112.62 through his illicit transactions. Although he objected to having received about $77,000 of that amount, the uncontested total amount of fraud still exceeded $200,000. Thus, for Booker purposes, defendant admitted to the amount of loss triggering the 12-level enhancement. U.S. v. Crawford, 414 F.3d 980 (8th Cir. 2005).
8th Circuit says application of mandatory guidelines was not plain error. (120) The Eighth Circuit rejected defendant’s claims of Booker error raised for the first time on appeal, finding he could not show a reasonable probability, based on the record as a whole, that but for the error he would have received a more favorable sentence. The sentencing transcript, in fact, reflected that the district court was unimpressed with defendant’s attempts to demonstrate remorse and acceptance of responsibility. Although the government supported a two-level acceptance reduction, the court stated that there was “no way” it would give defendant the reduction. After defendant offered a statement of contrition, the court found his “words fall on the ground like stones. They’re useless. You know it, and I know it. But in this case, I got to call it for what it is. Its ridiculous.” Defendant could not demonstrate a reasonable probability of prejudicial error. U.S. v. Crawford, 414 F.3d 980 (8th Cir. 2005).
8th Circuit holds that sentencing under mandatory guidelines was plain error affecting substantial rights. (120) In order to be entitled to plain error relief based on an error under U.S. v. Booker, 543 U.S. 220 (2005), the Eighth Circuit requires a defendant to show that there was a reasonable probably that, but for the Booker error, he or she would have received a lower sentence. U.S. v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc). The Eighth Circuit found that the record here showed such a probability. In sentencing defendant, the district court said “let me say this right at the outset because I was looking for some adjustments here,” a remark that in the context of what followed indicated an uneasiness on the judge’s part with the severity of the sentencing range of 360 months to life that defendant was facing. When defense counsel asked for a sentence at the low end of the range, the district judge observed, “I’m not going to go any higher. I guarantee that. That’s more than sufficient.” And right before passing sentencing the district court asserted, “Well, the sentences are very severe. There’s no question about it.” These observations revealed a reasonable probability that defendant’s substantial rights were affected by the Booker error because they created a reasonable probability that the sentence would have been less severe had the court applied the rule of Booker. U.S. v. Brown, 414 F.3d 976 (8th Cir. 2005).
8th Circuit finds reasonable probability that sentence would have been shorter absent Booker error. (120) Defendant argued for the first time on appeal that the district court violated his Sixth Amendment rights by sentencing him under the guidelines and by finding facts that increased his offense level. To be eligible for plain error relief, defendant was required to show that the error affected his substantial rights by demonstrating a reasonable probability that he would have received a more favorable sentence absent the Booker error. The district court sentenced defendant to the bottom of the guideline range, although this fact alone did not give rise to a reasonable probability that his sentence would have been shorter. Nonetheless, the Eighth Circuit concluded that the district court’s comments showed such a probability. The court noted that the 292-month sentence was “probably a life sentence” for defendant in light of his “health and age” and declared, “[I]f I didn’t have to deal with these guidelines [defendant’s sentence] would likely be something significantly different.” The court also said that it was constrained to follow the guidelines, otherwise “the court of appeals … will make me put [the sentence] in [the guidelines] box, so what’s the point? Got to put [the sentence] in the box.” U.S. v. Whipple, 414 F.3d 887 (8th Cir. 2005).
8th Circuit says defendant satisfied plain error test where judge expressed desire to sentence him to a lower sentence. (120) The district court found that defendants possessed nine guns, six more than the jury convicted them of unlawfully possessing. The district court sentenced defendants under the belief that the guidelines were mandatory. Defendants did not raise a challenge based on Apprendi or Blakely, nor argued that the guidelines were unconstitutional. The Eighth Circuit found that one defendant did not meet his burden of showing plain error and the other did. Although the first defendant was sentenced at the low end of the sentencing range, that was insufficient, without more, to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error. However, the judge stated that the second defendant was less culpable than the first, and said if “the court had a way legally to [give the second defendant] a lower sentence I would.” U.S. v. Fleck, 413 F.3d 883 (8th Cir. 2005).
8th Circuit holds that error of imposing sentence in complete disregard of guidelines was not harmless. (120) Defendant was sentenced after the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004) but before it decided U.S. v. Booker, 543 U.S. 220 (2005). At sentencing, the district court held that Blakely rendered the federal Sentencing Guidelines facially unconstitutional and therefore it could disregard the guidelines and sentence defendant to any term within the applicable statutory range. The court imposed a 96-month sentence, and then an alternate guideline sentence of 188 in the event the guidelines were declared constitutional. The Eighth Circuit held that the district court erred by not consulting the guidelines and taking them into account during defendant’s sentencing. The court’s failure to at least consider the guideline likely affected the sentence imposed. The court’s alternate sentence of 188 months indicated the defendant’s imposed sentence could have been higher had the district court been aware of its responsibility to at least consult the guidelines during sentence. Given that the alternate sentence differed substantially from that actually imposed by the district court, the panel would not direct imposition of the alternative sentence on remand. U.S. v. Bruce, 413 F.3d 784 (8th Cir. 2005).
8th Circuit says Booker error did not affect substantial rights of defendant with maximum offense level. (120) An enhancement for obstruction of justice was erroneous under U.S. v. Booker, 543 U.S. 220 (2005) because it was imposed on the basis of judge-found facts in a mandatory guidelines regime. U.S. v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc). Thus, the first two prongs of the plain error test were satisfied. The Eighth Circuit found that the error did not affect defendant’s substantial rights, however. The obstruction enhancement resulted in an offense level of 45, but the district court sentenced defendant at an offense level of 43, the maximum level under the guidelines. Moreover, nothing in the record suggested that the district court would have sentenced defendant to a lighter sentence had it been operating under an advisory guidelines regime. U.S. v. Keller, 413 F.3d 706 (8th Cir. 2005).
8th Circuit upholds aggravating role adjustment where defendant recruited conspirator, gave him directions and took greater cut of profits. (120) The Eighth Circuit found no error in defendant’s receipt of a three-level aggravating role adjustment under § 3B1.1(b). There was direct evidence that defendant acted as supervisor of Lahaye in the marijuana venture. Defendant recruited Lahaye, gave him directions, monitored his progress and introduced him to other conspirators. Defendant took a greater proportion of the proceeds than Lahaye’s $5000 cut. There also was abundant evidence, including an admission in the plea agreement, that the venture involved five or more participants. The district court’s mandatory application of the guidelines to defendant’s case was not plain error. There was no evidence that the district court would have sentenced more leniently but for the Booker error. U.S. v. Shallal, 410 F.3d 434 (8th Cir. 2005).
8th Circuit outlines standard of review of post-Booker sentences. (120) The Eighth Circuit found that a post-Booker review of a timely raised challenge to the district court’s interpretation and application of the guidelines is a two-step process. First, the appellate court will continue to examine de novo whether the district court correctly interpreted and applied the guidelines. The court will also continue to review findings of fact for clear error. If the sentence was imposed as the result of an incorrect application of the guidelines, the appellate court will remand for resentencing as required by 18 U.S.C. § 3742(f) (1) without reaching the reasonableness of the resulting sentence in light of § 3553(a). If the court determines that the district court correctly calculated the applicable guideline range, the second step of the analysis is a review of any challenge to the reasonableness of the sentence in light of § 3553(a). This examination includes whether the district court’s decision to grant a § 3553(a) variance from the proper guideline range is reasonable, and whether the extent of any § 3553(a) variance or guidelines departure is reasonable. If the district court correctly applied the guidelines and imposed a reasonable sentence in light of § 3553(a), the Eighth Circuit will affirm the judgment. U.S. v. Mashek, 406 F.3d 1012 (8th Cir. 2005).
8th Circuit says Booker’s unreasonableness standard applies only to determination of ultimate sentence, not to interpretation of guidelines. (120) Defendant challenged a number of sentencing enhancements he received. The Eighth Circuit ruled that it would continue to review de novo the interpretation and application of the guidelines provisions after U.S. v. Booker, 543 U.S. 220 (2005). The unreasonableness standard articulated by the Supreme Court in Booker applies only to the district court’s determination of the ultimate sentence to impose based on all the factors in 18 U.S.C. § 3555(a), not to the district court’s interpretation of the meaning and applicability of the guidelines themselves. The appellate court “must continue to interpret the correct meaning and application of guidelines language, because the district court must continue to determine the appropriate guidelines sentencing range,” as it did pre-Booker, before it considers the other facts in 18 U.S.C. § 3553(a). The now-advisory guidelines, when correctly applied, become a consideration for the district court in choosing a reasonable ultimate sentence. Reasonableness may be “directly linked to the district court’s misapplication of a relevant guideline,” but is based on broader considerations than whether the guidelines were properly applied. U.S. v. Mathijssen, 406 F.3d 496 (8th Cir. 2005).
8th Circuit, en banc, says plain error requires reasonable probability that court would have imposed more lenient sentence under advisory guidelines. (120) Following the decisions of the First, Fifth, and Eleventh Circuits, the Eighth Circuit en banc held that where a defendant failed to preserve a claim under U.S. v. Booker, 543 U.S. 220 (2005), a remand for resentencing is not required unless the defendant meets his burden to demonstrate plain error prejudice, i.e. a reasonable probability that the district court would have imposed a more favorable sentence under the advisory Sentencing Guidelines regime. Defendant here did not establish a reasonable probability of prejudice. Although the sentence imposed was at the bottom of the guidelines range, this by itself was insufficient to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error. Judge Bye dissented. U.S. v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc).
8th Circuit, en banc, says defendant’s sufficiency of proof objection did not preserve Booker claim. (120) Defendant argued that he preserved his claim of error under Booker when his attorney stated, in arguing against an enhancement, that “the burden of proof should be beyond a reasonable doubt.” Because defendant did not couple this statement with a specific reference to Apprendi or Blakely or the Sixth Amendment, the 8th Circuit, en banc, ruled that he did not preserve the very different question of whether the district court committed Booker error in construing the guidelines as mandatory. Judge Heaney dissented, believing defendant preserved the error under existing precedent. U.S. v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc).
8th Circuit does not remand where court stated it would impose same sentence if guidelines were unconstitutional. (120) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1). He argued that his 46-month sentence was invalid under U.S. v. Booker, 543 U.S. 220 (2005). However, defendant’s sentence was not altered by any enhancements, and all of the facts necessary to support defendant’s sentence were proved to a jury beyond a reasonable doubt. In addition, the district court announced an identical alternative sentence should the guidelines he held completely unconstitutional. While the district court erred in sentencing defendant under the view the guidelines were mandatory, and erred in sentencing him under the view that the guidelines were unconstitutional, the Eighth Circuit found remand “futile” since the court announced that it would sentence defendant to 46 months’ imprisonment regardless of whether the guidelines were mandatory. Therefore, the panel reviewed the sentence only for reasonableness, and found the 46-month sentence reasonable. U.S. v. Thompson, 403 F.3d 533 (8th Cir. 2005).
8th Circuit holds that error in sentencing defendant as career offender under mandatory system was harmless. (120) Defendant argued that the district court erred in sentencing him as a career offender based on prior predicate offenses that were neither charged in the indictment nor proved to a jury beyond a reasonable doubt. The Eighth Circuit held that defendant’s prior convictions did not need to be charged and proved to the jury. The determination of whether his prior convictions were “crimes of violence” was a legal question for the sentencing court, not the jury. Defendant’s sentence did not violate the Sixth Amendment. Any error in sentencing defendant as a career offender under a mandatory sentencing scheme was harmless error. The district judge gave an express alternate sentence, stating that if it were totally within its discretion, he would still impose the same 210-month sentence. Although the court seems to presume that the court had total discretion rather than an obligation to great the guidelines as advisory, the court nonetheless did consider the guidelines in its analysis of the § 3553(a) factors. Thus, if the court committed any error in imposing its alternate sentence, the error was harmless. The sentence imposed was reasonable. U.S. v. Marcussen, 403 F.3d 982 (8th Cir. 2005).
8th Circuit says defendant was entitled to be resentenced under advisory guideline scheme. (120) Defendant pled guilty to drug charges, and entered into a written plea agreement in which he stipulated to specific offense conduct and acknowledged that these admissions would be used to calculated his sentence under the guideline. Before sentencing, however, he objected to being sentenced under the guidelines, arguing they were unconstitutional based on Blakely v. Washington, 124 S.Ct. 2531 (2004). He renewed this argument on appeal. In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the mandatory aspects of the guidelines was unconstitutional. The Eighth Circuit held that because defendant preserved his challenge to the constitutionality of the guidelines, he was entitled to be resentenced under an advisory, rather than mandatory, guideline scheme. The panel rejected the government’s argument that because defendant’s sentence was based on facts he admitted or to which he stipulated, he could not challenge his sentence. The panel also rejected the government’s argument that defendant expressly waived in his plea agreement the right to make this constitutional challenged on appeal. Finally, the error was not harmless. Defendant was sentenced at the low end of his guideline range, and had it not felt bound by the guidelines, the court could have imposed a sentence as low as 60 months. U.S. v. Lea, 400 F.3d 1115 (8th Cir. 2005).
8th Circuit says minimum sentence under mandatory guideline scheme was not harmless error. (120) Prior to sentencing, defendant raised the issue of the constitutionality of the federal Sentencing Guidelines, specifically citing Blakely v. Washington, 124 S.Ct. 2531 (2004). The district court rejected the challenge and sentenced defendant to 12 months, the lowest possible sentence within the applicable guideline range. On appeal, the Eighth Circuit considered whether it is harmless error to sentence a defendant under a mandatory federal sentencing guideline regime when there is no Sixth Amendment issue as to the guideline computation and the defendant is sentenced at the bottom of the guideline sentencing range. The panel concluded that it was not harmless error. The judge made a conscious decision to sentence the defendant at the bottom of the guideline range. Moreover, defendant pointed out a number of facts that warranted a sentence at the bottom of the guideline range, such as the fact that some of the money embezzled was used for defendant’s child’s high medical expenses. “[W]e cannot say with confidence that the district court would not have sentenced the defendant to a lesser sentence, or imposed different terms of confinement, … had the district court realized that the federal Sentencing Guidelines were only advisory.” U.S. v. Haidley, 400 F.3d 642 (8th Cir. 2005).
8th Circuit holds that application of mandatory sentencing guideline was harmless error. (120) Defendant, a former state court judge, pled guilty to extortion charges. The district court applied a two-level obstruction of justice increase and also departed upward based on the seriousness of defendant’s obstructive conduct, sentencing him to 48 months’ imprisonment Defendant agreed to the obstruction enhancement, but challenged the four-level upward departure. The Eighth Circuit found it unnecessary to determine whether defendant preserved this challenge on appeal, since the application of the mandatory guidelines did not affect defendant’s sentence, and therefore was harmless and not plain error. The court discussed the circumstances of the case, noted that it originally planned to impose a five year sentence, but found that defendant had suffered “significant punishment,” and was “quite capable of learning and [would] not be planning any more murders. I am satisfied that the seriousness of the offense requires that at least a four-year sentence be imposed.” Thus, there was no question that the district court clearly imposed the sentence it felt appropriate, and a remand would be futile. U.S. v. Sayre, 400 F.3d 599 (8th Cir. 2005).
8th Circuit remands in light of Booker. (120) Defendant contended that he was sentenced in violation of the Sixth Amendment. No drug quantity was stated in the indictment or found by the jury, and the district court sentenced him based on the 7.17 grams of methamphetamine it found at sentencing that he possessed for distribution. Defendant objected to the drug quantity findings, thus preserving the issue for appeal. Without any discussion, the Eighth Circuit remanded for resentencing in light of U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Selwyn, 398 F.3d 1064 (8th Cir. 2005).
8th Circuit rejects Booker challenge to career offender sentence. (120) Defendant filed a motion for supplemental briefing to address potential issues raised by Blakely v. Washington, 124 S.Ct. 2531 (2004). After oral argument, the Supreme Court decided U.S. v. Booker, 543 U.S. 220 (2005). The Eighth Circuit denied the motion for supplemental briefing. Defendant was sentenced as a career criminal under § 4B1.1, resulting in a criminal history category of VI. Defendant claimed that the court would have sentenced him differently if the guidelines were not mandatory, citing the court’s comment that the career criminal enhancements “are tough propositions,” and were “just a mindless approach to justice.” However, the district court set defendant’s criminal history category based upon the undisputed fact that he had been convicted of two prior violent felonies. Such a fact does not need to be established by proof beyond a reasonable doubt. The record was clear that the district court chose not to downwardly depart from the guidelines, understanding its discretion to do so. Accordingly, there was “no discord between the district court’s decision and Booker.” U.S. v. Little Dog, 398 F.3d 1032 (8th Cir. 2005).
8th Circuit holds that mandatory minimum drug sentence not affected by Booker. (120) After briefs were submitted, defendant submitted a letter pursuant to Rule 28(j) arguing that he should be resentenced under Blakely v. Washington, 124 S.Ct. 2531 (2004) because he received an enhanced sentence due to a prior drug felony conviction. The jury found a quantity of methamphetamine in excess of 50 grams. The quantity resulted in a mandatory minimum sentence of five years. However, because defendant had a prior drug felony conviction, the mandatory minimum sentence was enhanced to 10 years. See 21 U.S.C. § 841(b)(1)(B). The Eighth Circuit held that defendant was not entitled to resentencing under Blakely or the recent Supreme Court decision in U.S. v. Booker, 543 U.S. 220 (2005). Defendant’s sentence was not based on an application of the federal Sentencing Guidelines, but upon the mandatory minimum sentence set forth in the government criminal statute, and a quantity of drugs determined by the jury. As to the enhancement for a prior conviction, the Supreme Court has consistently said the fact of a prior conviction is for the court to determine, not a jury. U.S. v. Vieth, 397 F.3d 615 (8th Cir. 2005).
8th Circuit holds that Booker did not affect classification as armed career criminal. (120) Defendant pled guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) and an armed career criminal under the ACCA, 18 U.S.C. § 924(e). The Eighth Circuit held that the district court did not err in classifying defendant’s burglary and escape convictions as violent felonies under the ACCA. The panel also rejected defendant’s argument that the question of his prior convictions should have been submitted to a jury and subject to proof beyond a reasonable doubt. Blakely v. Washington, 124 S.Ct. 2531 (2004); U.S. v. Booker, 543 U.S. 220 (2005). Defendant’s sentence was not determined based upon an application of the federal Sentencing Guidelines, but rather upon the mandatory minimum sentence set forth in the ACCA. As to the finding concerning the prior convictions which triggered the mandatory minimum sentence, the Supreme Court has consistently said that the fact of a prior conviction is for the court to determine, not a jury. U.S. v. Nolan, 397 F.3d 665 (8th Cir. 2005).
8th Circuit says mandatory minimum sentence did not violate Blakely. (120) Defendant contended that his convictions and sentence were unconstitutional because they were based on drug quantities that the government was not required to prove as an element of the offense. The Eighth Circuit found that regardless of the ramifications of Blakely v. Washington, 124 S.Ct. 2531 (2004), defendant’s mandatory minimum sentence was constitutional. Defendant’s 120-month sentence was the mandatory minimum term of imprisonment for a defendant who is convicted of trafficking in excess of 500 grams of a mixture or substance containing methamphetamine. Blakely explained that a sentence may be imposed by a judge if it is based solely on the “facts reflected in the jury verdict or admitted by the defendant.” Here, the indictment alleged that defendant possessed with intent to distribute in excess of 500 grams of meth, and he admitted this fact as part of his guilty plea. No additional finding was required by the district court to justify the sentence imposed. U.S. v. Lucca, 377 F.3d 927 (8th Cir. 2004).
8th Circuit holds that jury finding precluded court from holding defendant accountable for lesser quantity. (120) The PSR recommended that defendant be held responsible for possessing 50.6 grams of methamphetamine with intent to distribute. Defendant objected, arguing that he intended some or all of the meth mixture for personal consumption. The court estimated that defendant had possessed 25% of the meth for his personal consumption and 75% of it with intent to distribute it to others. The Eighth Circuit reversed, holding that this conflicted with the jury’s finding that defendant possessed 50 grams of more of methamphetamine with intent to distribute. Given the jury’s finding, the judge erred as a matter of law by concluding that defendant intended 25% for personal consumption. A fact proven beyond a reasonable doubt cannot simultaneously be disproved by a preponderance of the evidence. U.S. v. Campos, 362 F.3d 1013 (8th Cir. 2004).
8th Circuit holds that use of relevant conduct did not violate Apprendi. (120) Defendant contracted to cut and haul timber for several different landowners. Defendant was to deliver the timber to specific mills, but diverted some of the loads to unauthorized mills and disguised the source of the timber. The district court included in its sentencing calculations the loss caused by relevant conduct, and concluded that a loss of more than $350,000 was supported by a preponderance of the evidence. The Eighth Circuit held that the use of relevant conduct did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000), since the use of defendant’s acquitted conduct did not put his sentence beyond the statutory maximum. A jury is not required to make factual findings as to all matters that enhance a sentence. See U.S. v. Madrid, 224 F.3d 757 (8th Cir. 2000) (acquitted conduct proven by a preponderance of the evidence can be used to enhance sentence). U.S. v. Wainright, 351 F.3d 816 (8th Cir. 2003).
8th Circuit holds consecutive sentences overcome Apprendi problem. (120) After defendant was sentenced to 384 months on drug and money laundering convictions, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). In U.S. v. Bradford, 246 F.3d 1107 (8th Cir. 2001), an Eighth Circuit panel vacated and remanded for reconsideration in light of Apprendi. At resentencing, the district court determined that, notwithstanding U.S.S.G. § 5G1.2(d), it had discretion under 18 U.S.C. § 3584 to impose sentences either consecutively or concurrently. The court imposed a 264-month sentence, 240 months on one count, and 240 on the other count to be served concurrently, with the exception of 24 months which was to run consecutively. The Eighth Circuit reversed. In U.S. v. Diaz, 296 F.3d 680 (8th Cir. 2002) (en banc), an en banc court overruled Bradford to the extent it held that U.S.S.G. § 5G1.2(d) provides sentencing discretion and that remand is necessary where the Apprendi violation can be cured by running sentences consecutively under that section. Pursuant to Diaz, the provisions of § 5G1.2(d) are mandatory. Section 5G1.2(d) required the district court to order consecutive sentences to achieve the court’s total punishment calculation. The court directed the district court to reinstate its initial sentence of 384 months imprisonment. U.S. v. Harrison, 340 F.3d 497 (8th Cir. 2003). See also U.S. v. Andrews, 339 F.3d 754 (8th Cir. 2003), a related case in which the Eighth Circuit reached the same result.
8th Circuit holds that Apprendi does not apply to fact of prior conviction. (120) Defendant pled guilty to illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a), which provides for a two-year maximum sentence. Under § 1326(b)(2), the maximum sentence is 20 years if the alien had a prior aggravated felony conviction. The district court found that defendant had a prior aggravated felony, and sentenced him to 46 months. The Eighth Circuit held that the district court’s use of the prior conviction to increase defendant’s sentence did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). The plain language of Apprendi excepts the fact of prior convictions from its holding. Almendarez-Torres v. U.S., 523 U.S. 224 (1998), holding that § 1326(b)(2) is a sentencing factor, not a separate criminal offense, remains good law. U.S. v. Perez-Perez, 337 F.3d 990 (8th Cir. 2003).
8th Circuit says Apprendi not applicable where defendant received sentence below statutory maximum. (120) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court set his offense level at 22 under U.S.S.G. § 2K2.1(a)(3) based on his possession of an assault rifle. He argued that this violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because there was no indication in the indictment or jury finding that he was in possession of an assault weapon. The Eighth Circuit held that Apprendi was not applicable to defendant’s case because he received a sentence below the statutory maximum. See Harris v. U.S., 536 U.S. 545 (2002) (holding that judge’s finding by preponderance of the evidence did not violate Apprendi because sentence imposed fell within statutory maximum). The felon-in-possession statute imposes a 10-year statutory maximum sentence. See 18 U.S.C. § 924(a)(2). Defendant’s 92-month sentence did not exceed this maximum. U.S. v. Piggie, 316 F.3d 789 (8th Cir. 2003).
8th Circuit holds that counsel was not ineffective for failing to make Apprendi-like argument. (120) In a petition under 28 U.S.C. § 2255, defendant argued that his counsel was ineffective for failing to make an argument like the one raised in Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any factor, other than a prior conviction, which increases a sentence beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Apprendi was decided a few months after defendant was sentenced. Defendant relied on U.S. v. Moss, 252 F.3d 993 (8th Cir. 2001), which held that an Apprendi-type argument was “reasonably available” prior to the Supreme Court’s decision. The Eighth Circuit held that counsel’s failure to raise an Apprendi-like argument, which was unsupported by then-existing precedent, did not constitute ineffective assistance of counsel. The Constitute guarantees only adequate, not exceptional, counsel. Brown v. U.S., 311 F.3d 875 (8th Cir. 2002).
8th Circuit holds that 63-month sentence was plain error. (120) In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), sentencing defendant to a term of imprisonment in excess of 60 months without the jury determining drug quantity was an obvious error. See § 841(b)(1)(D) (carrying 60-month maximum for offenses involving an undetermined quantity of marijuana). In U.S. v. Cotton, 535 U.S. 625 (2002), the Supreme Court held that such an obvious error did not require reversal because evidence of drug quantity was “overwhelming” and “essentially uncontroverted.” The Eighth Circuit found the evidence of drug quantity here did not meet this high standard, and thus defendant’s 63-month sentence seriously affected the fairness of the judicial proceeding and constituted plain error. The government intercepted a package to defendant containing a tub filled with 28 pounds of marijuana. The court’s drug quantity finding was based on four additional tubs found at defendant’s residence. However, the government’s witness could not state with certainty whether the four additional tubs had contained marijuana. The tubs were not all the same color. Although evidence of the tubs supported a drug quantity finding by a preponderance of the evidence, it would not necessarily amount to proof beyond a reasonable doubt. U.S. v. Bartholomew, 310 F.3d 912 (6th Cir. 2002).
8th Circuit affirms sentence based on more drugs than found by jury because it was less than statutory maximum. (120) A jury convicted defendant of conspiracy to distribute less than 50 grams of a mixture of substance containing methamphetamine. See 21 U.S.C. §§ 841(a) and 846. She was sentenced to 88 months in prison, based in part on the district court’s finding that defendant was involved in the manufacture or distribution of 172.03 grams of methamphetamine mixture. On appeal, defendant contended that her sentence could not be based on a greater quantity of drugs than that found by the jury. The Eighth Circuit found no error, since defendant’s 88-month sentence was less than the statutory maximum for her crime. The statutory maximum for distribution of less than 50 grams of methamphetamine is 20 years. 21 U.S.C. § 841(b)(1)(C). U.S. v. Titlbach, 300 F.3d 919 (8th Cir. 2002).
8th Circuit holds that indictment’s reference to drug quantity ranges satisfied Apprendi. (120) Defendant argued that the indictment failed to specify an exact drug quantity, and therefore it violated Apprendi v. New Jersey, 530 U.S. 466 (2000). However, an indictment need not allege an exact drug quantity, but must merely set forth ranges of quantities relevant to the varying statutory maximums. U.S. v. Hollingsworth, 257 F.3d 871 (8th Cir. 2001), overruled on other grounds by U.S. v. Diaz, 296 F.3d 680 (8th Cir. 2002). Here, the indictment charged defendant with conspiracy to distribute and possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, 500 grams or more of a mixture containing a detectable amount of cocaine, and an unspecified amount of marijuana. Because the indictment specified a drug quantity range set forth in 21 U.S.C. § 841(b) that allows a maximum sentence of life imprisonment, defendant was not sentenced in violation of Apprendi. Although the indictment did not specifically cite § 841(b), the pertinent drug quantity fulfilled the essential elements requirement necessary to satisfy Apprendi. U.S. v. Hernandez, 299 F.3d 984 (8th Cir. 2002).
8th Circuit reaffirms that consecutive sentences do not violate Apprendi. (120) Defendant was convicted of three drug counts in violation of 21 U.S.C. § 841. In U.S. v. Hollingsworth, 257 F.3d 871 (8th Cir. 2001), the Eighth Circuit determined that defendant’s 32-year sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000). On remand, the district court sentenced defendant to 240 months’ on one count, and to 144 months’ on each of the other two, and pursuant to USSG § 5G1.2, ordered the sentences to run consecutively. Defendant argued that the court’s sentencing him to consecutive terms to avoid an Apprendi error nonetheless violated Apprendi. However, the Eighth Circuit’s recent en banc decision in U.S. v. Diaz, 296 F.3d 680 (8th Cir., 2002), resolved this issue against defendant. Under Diaz, if the defendant has been convicted of multiple counts, “the district court must impose consecutive sentences on the multiple counts until it reaches a sentence equal to the total punishment calculation under the guidelines.” Imposing consecutive sentences does not violate Apprendi when the sentence for each count does not violate the statutory maximum for that count. U.S. v. Hollingsworth, 298 F.3d 700 (8th Cir. 2002).
8th Circuit holds that Apprendi did not invalidate federal drug statutes. (120) Defendant argued that prior to the holding in Apprendi v. New Jersey, 528 U.S. 1018 (2000), the consensus among the circuit courts was that Congress intended for penalties under 21 U.S.C. § 841(b) to be sentencing factors determined by a judge by a preponderance of the evidence. Therefore, he contended Apprendi rendered § 841 unconstitutional because courts could not now abandon their pre-Apprendi findings on Congressional intent and that intent was unconstitutional. However, appellate courts have rejected this argument, pointing out that the practice of determining § 841(b) drug quantities by judge rather than by jury was based on judicial interpretation of the labeling of the statute rather than reliance on the statutory language or the legislative history. In the absence of such language or history that indicated that Congress intended determination by judge rather than by jury, the Eighth Circuit found nothing in Apprendi required a finding that § 841 is unconstitutional. U.S. v. Palmer, 297 F.3d 760 (8th Cir. 2002).
8th Circuit, en banc, says Apprendi error does not affect substantial rights if guidelines required consecutive sentences. (120) Defendants’ sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because they exceeded the 240-month statutory maximum for an indeterminate quantity of cocaine. On appeal, the Eighth Circuit relied on U.S. v. Sturgis, 238 F.3d 956 (8th Cir. 2001) to find no plain error because under USSG § 5G1.2(d), the district court would have been required to run the sentences consecutively to reach the total guideline punishment. U.S. v. Sherman, 262 F.3d 784 (8th Cir. 2001). Defendants petitioned for rehearing en banc based on two subsequently decided cases, U.S. v. Bradford, 246 F.3d 1107 (8th Cir. 2001) and U.S. v. Hollingsworth, 257 F.3d 871 (8th Cir. 2001), which remanded to the district court for resentencing under similar circumstances. On rehearing en banc, the Eighth Circuit overruled Bradford and Hollingsworth. Agreeing with Sturgis, it held that an Apprendi error in sentencing does not violate a defendant’s substantial rights in a case in which the district court would have otherwise imposed the same sentence because of the mandatory imposition of consecutive sentences under USSG § 5G1.2(d). Because § 5G1.2(d) mandates consecutive sentences in those cases in which the total punishment exceeds the statutory maximum for any one count, remand to allow the district court to consider whether to impose consecutive or concurrent sentences is not necessary. U.S. v. Diaz, 296 F.3d 680 (8th Cir. 2002) (en banc).
8th Circuit holds use of relevant conduct did not violate Apprendi where court stacked consecutive sentences. (120) Defendant was convicted of conspiracy to possess and possession of a controlled substance. The district court found that defendant had possessed cocaine and sentenced him accordingly, but on appeal, the Eighth Circuit reversed, finding that the verdict was ambiguous and that defendant was entitled to the assumption that the jury had found him guilty of the least serious offense, possession of marijuana. At resentencing, the district court imposed the maximum sentence of 60 months on each count, finding that defendant was involved in the distribution of cocaine. Under this finding, the base offense level under the guidelines, 324-405 months, exceeded the 10-16 month range that would have been applicable had the court found that defendant possessed only marijuana. Because the sentencing range exceeded the statutory maximum, the district court, as mandated by § 5G1.2(d), ordered that the sentences run consecutively. The Eighth Circuit found no error. Apprendi applies only if the defendant is sentenced beyond the statutory maximum. The district court may determine the type and amount of drugs involved, so long as the sentence imposed does not exceed the statutory maximum for the offense found by the jury, in this case marijuana possession and distribution. Requiring the sentences to run consecutively was mandated by § 5G1.2(d). U.S. v. Miller, 295 F.3d 824 (8th Cir. 2002).
8th Circuit says sentence for each count stands on its own under Apprendi. (120) Defendant was originally sentenced to 97-month concurrent sentences for marijuana charges, and for witness tampering. The appellate court remanded for resentencing on the two drug counts because of an error under Apprendi v. New Jersey, 530 U.S. 466 (2000). On remand, the district court sentenced defendant to 60 months on each of the drugs counts, to be served concurrently with his 97-month sentence for witness tampering. He argued that the 97-month witness tampering sentence was improper under Apprendi v. New Jersey, 530 U.S. 466 (2000) because it exceeded the 60-month statutory maximum applicable to the two drug counts. The Eighth Circuit found the Apprendi argument foreclosed by U.S. v. Nicholson, 231 F.3d 445 (8th Cir. 2000). The sentence for each count stands on its own after full consideration of the Apprendi issue. U.S. v. Ray, 291 F.3d 1039 (8th Cir. 2002).
8th Circuit holds that issue of prior aggravated felony need not be submitted to jury. (120) Defendant pled guilty to unlawfully reentering the country after deportation, in violation of 8 U.S.C. § 1326(a) (authorizing a two-year maximum term of imprisonment) and (b)(2) (raising the maximum sentence to 20 years for aliens with a prior aggravated felony conviction). He argued on appeal that § 1326(b)(2) violated his 6th Amendment right to have all facts that increase the maximum penalty submitted to a jury and determined beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466 (2000). The issue was not waived because defendant’s guilty plea expressly reversed the right to challenge on appeal any issues that might arise if the court “impose[d] a sentence in violation of the law apart from the sentencing guidelines.” The Eighth Circuit nonetheless found no Apprendi error, since the plain language of the case excepts the fact of prior convictions from its holding. The Apprendi court specifically refused to overrule Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which upheld the validity of the aggravated felony enhancement in § 1326(b). Although Almendarez-Torres addressed the 5th Amendment right to indictment by a grand jury, while defendant raised a 6th Amendment challenge, this distinction was not the basis for reversal. The issue involved a prior conviction, and the holding of Apprendi expressly excepted the issue of recidivism from the rule it announced. U.S. v. Kempis-Bonola, 287 F.3d 699 (8th Cir. 2002).
8th Circuit says five-year term of supervised release did not violate Apprendi. (120) Defendant argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), his five-year term of supervised release was inconsistent with USSG 5D1.2. He contended that the court must construe the penalty for his conviction without reference to drug quantity under § 841(b)(1)(C) in light of Apprendi, and not based on drug quantity under § 841(b)(1)(A), as defendant was initially sentenced. Following this reasoning, defendant argued that the applicable term of supervised release under the guidelines changes from three to five years for Class A felonies like § 841(b)(1) (D), and two to three years for Class C felonies like § 841(b)(1)(C). The Eighth Circuit concluded, however, that Apprendi does not require this result. The relevant statute, 21 U.S.C. § 841(b)(1)(C), mandates a term of at least three years’ supervised release. The statute sets a mandatory minimum, but no maximum penalty, thus permitting supervised release terms from three years to life. Because defendant’s five-year term of supervised release did not exceed the life term authorized by § 841(b)(1)(C), Apprendi did not require submission to a jury of factors used to determine the penalty. U.S. v. Kurkowski, 281 F.3d 699 (8th Cir. 2002).
8th Circuit holds that restitution fell within scope of indictment for Apprendi purposes. (120) Defendant argued that the order requiring him to pay $2.7 million in restitution violated Apprendi because the district court ordered restitution to victims beyond those affected by the specific wire transaction submitted to the jury to prove wire fraud. Although some cases have held that Apprendi does not apply to restitution orders, the Eighth Circuit found it unnecessary to decide that issue. Even if Apprendi applies to restitution orders, it would not limit restitution in a wire fraud case only to those losses stemming directly from the wire transactions submitted to the jury. The full amount of restitution authorized by statute is determined by looking to the scope of the indictment, which in turn defines the scope of the criminal scheme for restitution purposes. The restitution order here fell within the scope of the indictment, and thus was authorized by the statute. In a wire fraud case, the jury must consider the existence of the fraudulent scheme as part of the charged conduct. Thus, the fraud scheme was an element of the conduct charged in the indictment. Here, the entirety of the $2.7 million in restitution related to the “advance fee” scheme alleged in the indictment, not some other or broader scheme. U.S. v. Ross, 279 F.3d 600 (8th Cir. 2002).
8th Circuit permits defendant to raise new issue on second appeal where Apprendi was decided after first appeal. (120) On his second appeal, defendant argued that the order requiring him to pay $2.7 million in restitution violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because the district court ordered restitution to victims beyond those affected by the specific wire transaction submitted to the jury to prove wire fraud. The Eighth Circuit held that the fact that the court affirmed the restitution in defendant’s first appeal did not bar defendant from attacking it in his second appeal. Apprendi was decided after the first appeal, and announced a new (although not watershed) rule of constitutional law. See U.S. v. Moss, 252 F.3d 993 (8th Cir. 2001). Since defendant relied upon Apprendi, and this appeal was a direct review of defendant’s resentencing, he was not barred from attacking the restitution order. U.S. v. Ross, 279 F.3d 600 (8th Cir. 2002).
8th Circuit says defendant’s three prior violent felonies need not be submitted to jury. (120) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Based on his prior convictions for assault, robbery and escape, the district court sentenced defendant as an armed career criminal under 18 U.S.C. § 924(e). The Eighth Circuit rejected defendant’s argument that Apprendi v. New Jersey, 530 U.S. 466 (2000) required the issue of his status as a recidivist with three previous violent felonies be submitted to the jury. The issue of defendant’s prior felonies was not an element of the offense, but instead was a sentencing factor under Almendarez-Torres v. U.S., 523 U.S. 224 (1998). U.S. v. Abernathy, 277 F.3d 1048 (8th Cir. 2002).
8th Circuit holds that § 841’s sentencing scheme did not violate Apprendi. (120) Defendant was convicted of various charges relating to the distribution and possession of over 50 grams of crack cocaine. In addition to these drug amounts, the district court attributed to him, under a preponderance of the evidence standard, amounts associated with acquitted counts. He challenged the constitutionality of 21 U.S.C. § 841 because it did not require the government to prove drug amount as an element of the offense, and thereby violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eighth Circuit found this argument without merit. In Apprendi, the court was not concerned with statutory structure but with sentencing. Sentencing pursuant to § 841(b) (1)(A) does require proof of drug quantity. However, defendant’s sentences did not violate Apprendi. The district court’s consideration of drugs involved in acquitted conduct was proper, so long as that conduct has been proved by a preponderance of the evidence. U.S. v. Madrid, 224 F.3d 757 (8th Cir. 2000). U.S. v. Woods, 270 F.3d 728 (8th Cir. 2001).
8th Circuit holds Apprendi does not require predicate ACCA convictions be listed in indictment. (120) Defendant argued that because his status as an armed career criminal under 18 U.S.C. § 924(e)(1) increased his sentence beyond the statutory maximum, Apprendi v. New Jersey, 530 U.S. 466 (2000) required the nature of the predicate felonies to be pled in the indictment and proven to a jury. The Eighth Circuit ruled that this was a misreading of Apprendi. In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court found that recidivism that increases the maximum penalty for a crime need not be stated in the indictment and proven beyond a reasonable doubt. Apprendi itself recognized the continuing validity of Almendarez-Torres as a narrow exception to the broad rule it announced. Defendant contended that 18 U.S.C. § 924(e)(1) does not simply create an aggravated factor, but sets forth a “complex series of factual findings” to determine whether or not prior offenses constitute violent felonies or serious drug offenses, and that this “extensive fact finding function belongs to juries in criminal cases.” The panel did not agree. Section 924(e) “focuses on the fact of the conviction….” Custis v. U.S., 511 U.S. 485 (1994). Until the Supreme Court chooses to revisit the issue of recidivism statutes, Apprendi does not require the “fact” of prior convictions to be pled and proved to a jury. U.S. v. Campbell, 270 F.3d 702 (8th Cir. 2001).
8th Circuit finds no Apprendi problem where sentence did not exceed statutory maximum. (120) Defendant argued for the first time on appeal that the issue of drug quantity should have been submitted to the jury rather than decided by the district court. Because defendant’s sentence did not exceed the statutory maximum for conspiracy to distribute an unspecified quantity of methamphetamine, see 21 U.S.C. § 841(b)(1)(C), the Eighth Circuit found no error. As long as the final sentence is less than the maximum allowed by the jury verdict, neither the impact of the district court’s drug quantity determination on the guidelines nor its impact on mandatory minimums implicates Apprendi. U.S. v. Mora-Higuera, 269 F.3d 905 (8th Cir. 2001).
8th Circuit reaffirms that Apprendi does not apply retroactively to initial post-conviction motions. (120) Defendant filed his initial § 2255 petition arguing that the district court acted unconstitutionally by using drug type and quantity to increase his punishment above the statutory maximum despite the absence of jury findings on those issues. After he filed that petition, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any fact (except a prior conviction) that increases the penalty for a crime above the statutory maximum must be proved to a jury beyond a reasonable doubt. The district court held the portion of defendant’s sentence attributable to drug quantity and type unconstitutional and resentenced him. While noting that new rules of constitutional law are normally not retroactive on collateral review, Teague v. Lane, 489 U.S. 288 (1989), the district court concluded that Apprendi fell under the narrow Teague exception for watershed rules of procedure implicating the fundamental fairness and accuracy of a criminal proceeding. While the case was pending, another Eighth Circuit panel decided U.S. v. Moss, 252 F.3d 993 (8th Cir. 2001), which held that Apprendi does not apply retroactively on collateral review. The Eighth Circuit found that Moss was “fatal” to defendant’s claim for relief under Apprendi. Murphy v. U.S., 268 F.3d 599 (8th Cir. 2001).
8th Circuit reaffirms that Apprendi is not applicable retroactively on collateral review. (120) Defendant appealed the district court’s refusal to reconsider his 28 U.S.C. § 2255 petition challenging his life sentence for drug trafficking offense. After his § 2255 petition was denied, he filed a post-judgment motion arguing that his sentence should be vacated in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court denied the motion on the ground that this argument could have been raised before judgment. Defendant argued that he should have been allowed to raise his new argument in the court below, and that Apprendi should be applied retroactively to vacate his sentence since his jury did not make a finding of drug quantity. The Eighth Circuit noted that this argument was foreclosed by U.S. v. Moss, 252 F.3d 587 (6th Cir. 2001), which held that Apprendi was not a decision of such “watershed magnitude” that it would apply retroactively on collateral review. Therefore, the general rule of nonretroactivity in Teague v. Lane, 489 U.S. 288 (1989) conclusively barred defendant, whose conviction became final before Apprendi, from raising an Apprendi claim in a § 2255 petition. Jarrett v. U.S., 266 F.3d 789 (8th Cir. 2001).
8th Circuit finds no plain error given defendant’s admission at plea hearing. (120) Although defendant received a sentence higher than the 20 years authorized by 21 U.S.C. § 841(b)(1)(C), the drug quantity that would subject him to the higher statutory maximum was not charged in the indictment nor proved to a jury beyond a reasonable doubt. Because the issue was not raised below, the appellate court had discretion to reverse only if there was plain error affecting the defendant’s substantial rights. The Eighth Circuit found defendant’s substantial rights were not so affected. At defendant’s change of plea hearing, defendant admitted to the court that police found 435.6 grams of a mixture that was part methamphetamine. Given defendant’s admission of drug quantity, any Apprendi error did not seriously affect the sentencing proceeding’s fairness, integrity, or public reputation. U.S. v. Soltero-Corona, 258 F.3d 858 (8th Cir. 2001).
8th Circuit holds that Apprendi error required remand. (120) Defendants argued for the first time on appeal that the court erred in imposing mandatory life sentences under § 841(b)(1)(A) (iii) because drug quantity was not alleged in the indictment or found by a jury. The government argued that defendants could not show that the error affected their substantial rights or seriously affected the fairness of the judicial proceedings. In U.S. v. Poulack, 236 F.3d 932 (8th Cir. 2001), the court held that an Apprendi error did not affect the defendant’s substantial rights where the defendant (1) was informed prior to trial of the drug quantity the government intended to prove, (2) had an opportunity to contest the weight of drugs prior to trial, (3) stipulated to drug quantity at trial, and (4) counsel conceded there was no basis to contest the drug quantity findings. Defendants here did not have such pre-trial notice, and they did not stipulate to drug quantity at trial. The Eighth Circuit held that the Apprendi error seriously affected both the fairness and integrity of the judicial proceedings, and remanded for resentencing. Unlike Johnson v. U.S., 520 U.S. 461 (1997), the error here involved more than the mere failure to instruct the jury on an element of the offense – it also involved the government’s failure to charge an element of the offense in the indictment, and the district court’s imposition of a sentence that both exceeded the crime charged by the government and the punishment authorized for the offense of conviction. U.S. v. Maynie, 257 F.3d 908 (8th Cir. 2001).
8th Circuit says jury should have determined whether drug calculation should be based on most or least abundant precursor. (120) Based on the 20 pounds of iodine defendant possessed, he could have produced between 1.3 to 1.8 kilograms of methamphetamine, assuming the presence of other chemicals in sufficient quantities. The district court held him accountable for 1.3 kilograms of meth. On appeal, the government conceded that defendant’s 32-year sentence violated Apprendi because it exceeded the maximum in § 841(b)(1)(C) for offenses involving an unspecified quantity of methamphetamine. However, it argued that the error was harmless because the amount of precursor chemicals was not contested and defendant argued only that the calculation should have been based upon the least abundant precursor chemical rather than the most abundant. The Eighth Circuit ruled that defendant’s challenge to the method of calculating drug quantity was sufficient to controvert the element of drug quantity for purposes of harmless error analysis. The fact that the evidence was contested did not make it improper to rely on the most abundant precursor. However, where the calculation will potentially increase the sentence above the statutory maximum, the quantity question, including the propriety of basing the quantity calculation on the most or least abundant precursor, must be submitted to the jury. U.S. v. Hollingsworth, 257 F.3d 871 (8th Cir. 2001), overruled on other grounds by U.S. v. Diaz, 296 F.3d 680 (8th Cir. 2002).
8th Circuit finds no plain error where same result could have been achieved with consecutive sentences. (120) The district court held defendant responsible for 756.55 kilograms of marijuana and sentenced him to three concurrent 160-month terms of imprisonment. The statutory maximum sentence for an indeterminate amount of marijuana is 60 months. 21 U.S.C. § 841(b)(1) (D). Because defendant’s 160-month sentences exceeded that maximum and were based on drug quantities not submitted to a jury, they were erroneous in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). However, under U.S. v. Sturgis, 238 F.3d 956 (8th Cir. 2001), where a defendant’s sentence can be reformed under § 5G1.2(d) to avoid an Apprendi error, there is no plain error in his sentence. Here, applying § 5G1.2(c), the district court could have determined that defendant’s 60-month sentences for each count should run consecutively, thus resulting in a 180-month sentence, 20 months longer his current sentence. Because defendant could have received a lengthier sentence under the guidelines even if he had been sentenced under the statutory minimum for an indeterminate drug quantity, the Eighth Circuit held that defendant’s concurrent 16-month sentences did not amount to plain error. Judges Heaney and Bright both concurred separately in the result, but expressed the opinion that Sturgis was decided incorrectly. U.S. v. Caldwell, 255 F.3d 532 (8th Cir. 2001).
8th Circuit directs court to consider whether to make sentences consecutive to comply with Apprendi. (120) Defendant’s 30-year sentence exceeded the statutory maximum penalty authorized under § 841(b) where no drug quantity has been found by the jury, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). At oral argument, the government acknowledged that the Apprendi error warranted remand for resentencing. The district court calculated defendant’s base offense level as a career offender on the basis of a statutory maximum of life. However, in light of Apprendi, the correct statutory maximum was 20 years. Under § 4B1.1, this maximum yielded an offense level of 32 for a career offender, which was lower than the otherwise applicable offense level of 34 and was therefore, disregarded. The resulting guideline range was 262-327 months. Therefore, the Eighth Circuit directed the district court to determine whether to run defendant’s two sentences consecutively to the extent necessary to produce a combined sentence within the 262-327 month range, pursuant to USSG § 5G1.2(d). In doing so, the court should follow the usual procedures for departures. U.S. v. Alvarez, 254 F.3d 725 (8th Cir. 2001).
8th Circuit rules Apprendi not watershed rule requiring retroactive application on collateral review. (120) Defendant moved under 28 U.S.C. § 2255 to set aside his 360-month sentence for violating Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eighth Circuit ruled that defendant was foreclosed from collaterally attacking his sentence under Apprendi, finding that it presented a new rule of constitutional law inapplicable to cases on collateral review. See Teague v. Lane, 489 U.S. 288 (1989). Although there is an exception in Teague for watershed rules, ones which “implicate the fundamental fairness of the trial,” Apprendi is not such a watershed rule. To fall within the exception, the rule must impart a fundamental procedural right that, like the right to counsel, is a necessary component of a fair trial. “Permitting a judge-found fact to affect the sentence imposed after a valid conviction, even if it is found under a more lenient standard, cannot be said to have resulted in a fundamentally unfair criminal proceeding.” Moreover, even assuming the Apprendi challenge was not Teague- barred, defendant could not challenge his sentence on Apprendi grounds because he failed to raise the argument in his direct appeal. The Apprendi claim was not a “novel” one which justifiably could be raised for the first time in a collateral proceeding. As far back as 1987, this circuit addressed the exact argument defendant now raised. U.S. v. Moss, 252 F.3d 993 (8th Cir. 2001).
8th Circuit rejects Apprendi claim where sentence imposed did not exceed statutory maximum. (120) Defendant argued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because his sentencing range under the guidelines, determined partially through a four-level leadership increase under § 3B1.1(a), was 210 to 262 months. This range exceeded the statutory maximum of 240 months for a drug offense for involving an unspecified quantity of drugs in 21 U.S.C. § 841(b)(1)(C). However, defendant was sentenced only to 210 months. So long as the imposed sentence does not exceed the statutory maximum allowable for the crime, Apprendi is not implicated. U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2001). Accordingly, the Eighth Circuit rejected the claim. U.S. v. Hartje, 251 F.3d 771 (8th Cir. 2001).
8th Circuit finds 60-month maximum applicable where jury did not make marijuana quantity finding. (120) Possession with intent to distribute less than 50 kilograms of marijuana has a statutory maximum sentence of 60 months, see 21 U.S.C. § 841(b)(1)(D), but if a defendant is found to possess over 50 kilograms, the statutory maximum goes up to 240 months, see § 841(b)(1) (C). Defendant’s 97-month sentences were based on the court’s finding that the amount of marijuana involved was between 60 and 80 kilograms. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant could not have been sentenced under the higher statutory maximum unless the issue of drug quantity was submitted to the jury. The Eighth Circuit remanded for resentencing, rejecting defendant’s claim that he was also entitled to a new trial. The jury found defendant responsible for an offense involving an unspecified amount of marijuana, which was only sufficient to support a 60-month sentence under § 841(b)(1)(D). U.S. v. Ray, 250 F.3d 596 (8th Cir. 2001).
8th Circuit holds that prior aggravated felony conviction need not be alleged in indictment or proven to jury. (120) Defendant pled guilty to illegally re-entering the United States after deportation, in violation of 8 U.S.C. § 1326(a). His sentence was enhanced under § 1326(b) and USSG § 2L1.2(b)(1)(A) because he had been deported after being convicted of an aggravated felony. Defendant argued that because the fact of a prior aggravated felony conviction was not alleged in the indictment and was neither proved to a jury nor admitted through his guilty plea, the enhancement sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eighth Circuit rejected this argument. In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court upheld the validity of the § 1326(b)(2) aggravated-felony enhancement for § 1326(a) violators. Apprendi did not overrule Almendarez-Torres. U.S. v. Raya-Ramirez, 244 F.3d 976 (8th Cir. 2001).
8th Circuit finds no plain error under Apprendi in setting supervised release term. (120) Defendant pled guilty to drug trafficking charges. He argued for the first time on appeal that his five-year term of supervised release exceeded the three-year maximum term authorized under 18 U.S.C. § 3583(b)(2), which he contended was applicable to his conviction under Apprendi v. New Jersey, 530 U.S. 466 (2000) because the jury did not make the drug quantity finding upon which his sentence was based. In U.S. v. Le May, 952 F.2d 995 (8th Cir. 1991), the Eighth Circuit held that the maximum-term limitations in § 3583(b) do not apply when a statute such as 21 U.S.C. § 841(b) expressly authorizes a longer term of supervise release. Thus, even if Apprendi applies to the supervised release portion of a sentence, the Eighth Circuit found no plain error in sentencing defendant, since his term of supervised release did not exceed the maximum term authorized under § 841(b)(1)(C) (“at least 3 years”), the sentencing statute that applied in the absence of a specific drug quantity finding. U.S. v. Scott, 243 F.3d 1103 (8th Cir. 2001).
8th Circuit says Apprendi did not require prior conviction to be found by jury. (120) The applicable drug statute, 21 U.S.C. § 841(b)(1) (A)(viii), provides for a mandatory minimum 20-year sentence for a person who manufactures 50 grams of more of methamphetamine after an earlier felony drug offense has become final. At sentencing defendant admitted the earlier conviction and the district court found over 70 grams of meth were attributable to defendant. Rather than imposing the statutory minimum, the district court imposed a sentence within the guidelines range of 135-168 months. Because the government did not file a motion under 18 U.S.C. § 3553(e), the Eighth Circuit held that the district court lacked authority to depart from the mandatory minimum sentence. Contrary to defendant’s claim, Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) did not require his earlier conviction be found by a jury. Apprendi’s jury finding requirement applies to facts “[o]ther than the fact of a prior conviction.” U.S. v. Rush, 240 F.3d 729 (8th Cir. 2001).
8th Circuit refuses to assume that Apprendi error was harmless. (120) Defendant challenged his sentence because drug quantity was not alleged in the indictment and found by the jury, and the court’s quantity finding increased his sentence beyond the 60-month sentence in 21 U.S.C. § 841(b)(1)(C) for possession of less than 50 kilograms of marijuana. See U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000)). The Eighth Circuit was unwilling to assume that the Apprendi error did not affect defendant’s substantial rights and reversed, finding the case distinguishable from U.S. v. Poulack, 236 F.3d 932 (8th Cir. 2001). The Poulack defendant was expressly informed at the arraignment of the drug quantity he was alleged to have possessed. In addition, the Poulack defendant stipulated to the drug quantity involved and to the admission of a lab report showing the weight of the drug. Defendant here did not stipulate to the quantity of marijuana involved in his offense, and the lab report introduced into evidence did not indicate total quantity. U.S. v. Butler, 238 F.3d 1001 (8th Cir. 2001).
8th Circuit says Apprendi error not plain where sentence can be reformed to avoid error. (120) The district court sentenced defendant to 60 months for a marijuana distribution charge and a concurrent 262 months for a crack distribution charge. Defendant’s 262-month sentence on the crack count violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because that sentence exceeded the 240-month statutory maximum for an indeterminate quantity of crack. However, because defendant’s sentence could be reformed to avoid the Apprendi error, the Eighth Circuit held that the error was not plain. Guideline § 5G1.2(d) requires a district court to run sentences from multiple counts consecutively, rather than concurrently, if the guideline sentence exceeds the statutory maximum sentence for each count. Applying § 5G1.2(d), the district court could have capped defendant’s crack sentence at 240 months, and run 22 months of the 60-month marijuana sentence consecutively, thereby achieving the 262-month sentence imposed by the guidelines. So constituted, defendant’s sentence would not violate Apprendi, because neither sentence would exceed the statutory maximum sentence for the respective drug types. See U.S. v. Page, 232 F.3d 536 (6th Cir. 2000) (finding no plain error when § 5G1.2(d) would render defendants’ sentence identical after remand to correct Apprendi error), petition for cert. filed, No. 00-7751 (Jan. 3, 2001). U.S. v. Sturgis, 238 F.3d 956 (8th Cir. 2001).
8th Circuit holds that defendant waived right to have jury determine drug quantity. (120) The statutory maximum sentence for possessing with intent to distribute less than 50 kilograms of marijuana is 60 months. See 21 U.S.C. § 841(b)(1)(D). The district court found that defendant possessed more than 50 kilograms, which increased his maximum sentence to 240 months under § 841(b)(1)(C). Since the issue of drug quantity was not submitted to the jury, and defendant received a 210-month sentence, he argued that he was entitled to be resentenced in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Eighth Circuit held that defendant waived the right to have the jury determine drug quantity. Not only did defendant not object at trial to the allegedly defective indictment or to the failure of the jury to make a quantity determination, or at sentencing to the court’s determining the amount of marijuana, but he stipulated to the quantity of marijuana he was alleged to have possessed and to admission of a lab report that identified the drug and stated that it weighed 77 kilograms. Moreover, even if there was error and the error was plain, the error did not affect defendant’s substantial rights. Given the circumstances of this case, there was no reason to believe that a jury would not have made the same drug quantity finding as the district court. U.S. v. Poulack, 236 F.3d 932 (8th Cir. 2001).
8th Circuit says enhancement that did not increase statutory maximum did not violate Apprendi. (120) Defendant was convicted of possessing a gun after he had been convicted of a domestic violence offense, in violation of 18 U.S.C. § 922(g)(9). He argued that the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) when it used the firearms seized during the search of his apartment to enhance his guidelines offense range. The Eighth Circuit found this argument misplaced because the multiple firearms enhancement did not affect the statutory maximum for violating § 922(g)(9). A judge-found fact may permissibly alter a defendant’s sentence within the statutory range for the offense. See U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000). U.S. v. Lewis, 236 F.3d 948 (8th Cir. 2001).
8th Circuit holds the death or bodily injury enhancement did not violate Apprendi. (120) Defendant pled guilty to conspiring to manufacture methamphetamine. Section 841(b)(1)(A) (viii) requires a sentence of 10 years to life, but “if death or serious bodily injury results from the use of such substance,” the sentence “shall not be less than 20 years or more than life.” The Eighth Circuit held that the district court did not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) by using the preponderance of the evidence standard rather than a reasonable doubt standard in determining whether the enhancement was applicable. First, the enhancement did not increase the statutory maximum authorized by Congress under § 841(b)(1)(A). Second, the sentence defendant received (20 years) did not exceed the maximum sentence authorized under § 841(b)(1)(C), the penalty provision for the “offense simpliciter.” U.S. v. McIntosh, 236 F.3d 968 (8th Cir. 2001).
8th Circuit says Apprendi only applies where findings increase sentence beyond range authorized by jury verdict. (120) Defendant argued that the trial court erred when it declined to submit the question of drug quantity to the jury. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Eighth Circuit noted that Apprendi applies only where the non-jury factual determination increase the maximum sentence beyond the statutory range authorized by the jury’s verdict. In this case, the court gave defendant a sentence of 63 months, which was less than the 20-year maximum that the statute authorized. See § 841(b)(1)(C). U.S. v. Ortiz, 236 F.3d 420 (8th Cir. 2001).
8th Circuit finds Apprendi error harmless in light of overwhelming evidence of drug quantity. (120) Although the district court instructed the jury that it only needed to find that the conspiracy intended to produce a “measurable amount” of methamphetamine, the court found at sentencing that the conspiracy intended to manufacture more than 50 grams of meth. Because the maximum sentence for an undetermined quantity of meth is 20 years, see 21 U.S.C. § 841(b)(1)(C), defendants’ 30-year sentences violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). However, Apprendi “did not recognize or create a structural error that would require per se reversal.” Rather, the sentences can be affirmed unless the appellate court finds that “the record contains evidence that could rationally lead to a contrary finding with respect to the omitted evidence.” The Eighth Circuit found that the Apprendi error was harmless, given the overwhelming evidence that defendants conspired to produce sufficient meth to support their 30-year sentences. Police seized about 100 grams of pseudoephedrine, the main precursor chemical, from a co-conspirator’s residence. This quantity of pseudoephedrine could theoretically yield 92 grams of meth. A finding of anything more than five grams of meth would subject defendants to a statutory maximum of 40 years. See 21 U.S.C. § 841(b)(1)(B). U.S. v. Anderson, 236 F.3d 427 (8th Cir. 2001).
8th Circuit finds no Apprendi issue where defendant received sentences below statutory maximums. (120) Defendant was convicted of obstructing justice and perjury. The district court sentenced him to concurrent terms of 100 months on the obstruction count and 60 months on the perjury count. The Eighth Circuit held that the sentences did not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), since defendant received sentences below the statutory maximums. The obstruction statute carried a 10-year statutory maximum sentence, and the perjury statute carried a five-year maximum sentence. The district court sentenced defendant to concurrent terms at or below these maximums. U.S. v. Russell, 234 F.3d 404 (8th Cir. 2000).
8th Circuit requires resentencing where general verdict led to ambiguity about type of controlled substance. (120) The jury was instructed that it could find that defendant violated § 841(a) even if it found “that the controlled substance distributed was not cocaine base, but another controlled substance, either cocaine, marijuana, or PCP.” Thus, even though his indictment alleged cocaine base, the Eighth Circuit could not rule out the possibility that the jury convicted defendant on a finding of marijuana distribution. If this were the case, he would be subject to a maximum sentence of five years on each counts. See 21 U.S.C. §§ 841(b)(1)(D) and 846. In U.S. v. Nattier, 127 F.3d 655 (8th Cir. 1997), the court held that where a jury renders a general verdict that may rest on any of several alternative factual findings, the court “should sentence defendant on the alternative that yields a lower sentencing range.” Under Edwards v. United States, 523 U.S. 511 (1998), Nattier no longer applies to cases where the verdict’s ambiguity affects only the judge’s application of the Sentencing Guidelines within the limit of the statute. However, Edwards does not affect a case such as this where different statutory maximums might apply. The Nattier rule had an exception where the evidence supported a specific finding beyond a reasonable doubt. However, to the extent that the Nattier exception authorized a judge, rather than a jury, to find the facts that determine a defendant’s maximum statutory penalty, the exception did not survive Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). U.S. v. Nicholson, 231 F.3d 445 (8th Cir. 2000).
8th Circuit treats Apprendi appeal as § 2255 petition where defendant filed late notice of appeal. (120) Defendant challenged his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). However, at oral argument, defense counsel informed the court that defendant’s notice of appeal had been filed late and requested that the court consider his appeal as a petition for post-conviction relief under 28 U.S.C. § 2255. Because the government did not oppose such treatment, and because substantial constitutional issues were at stake, the Eighth Circuit granted defendant’s request. This did not preclude the court from applying Apprendi because defendant had not previously collaterally attacked his sentence. Cf. Rodgers v. United States, 229 F.3d 704 (8th Cir. 2000) (holding that Apprendi does not apply retroactively to second or successive § 2255 motion). U.S. v. Nicholson, 231 F.3d 445 (8th Cir. 2000).
8th Circuit holds that Apprendi required resentencing. (120) The jury returned general verdicts convicting defendant of drug conspiracy, crack cocaine distribution, and firearms charges. The indictment did not specify the amount of drugs involved in the conspiracy, and the jury did not make any express finding of quantity as to that count. The trial court found by a preponderance of the evidence that defendant was connected with more than 150 kilograms of cocaine, which, after other adjustments, resulted in an offense level of 43 and a life sentence. The Eighth Circuit held that resentencing was required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). The statutory maximum for conspiracy, where the jury makes no finding of drug quantity, is 20 years, see 21 U.S.C. §§ 841(b) (1)(C) and § 846, and the statutory maximum for distributing 15 pounds of marijuana is five years, see 21 U.S.C. § 841(d). The sentences on those counts needed to be modified. However, the sentencing range for distributing crack was ten years to life. Thus, the life sentence that defendant received for this count was proper even under Apprendi. U.S. v. Nicholson, 231 F.3d 445 (8th Cir. 2000).
8th Circuit finds no Apprendi error where maximum sentence was already life. (120) Defendant was convicted of possession with intent to distribute methamphetamine, two counts of distributing meth, and conspiracy to distribute meth. See 21 U.S.C. §§ 841(a)(1) and 846. In its verdict form, the jury found that the quantity of meth involved was at least 1700 grams. Relying on the PSR, which suggested the actual quantity was 81 pounds, the district court sentenced defendant to a life sentence on each count. He argued that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt) required that drug quantities used in sentencing be found by a jury. The Eighth Circuit found no Apprendi error. The statutory maximum for each of defendant’s crimes, even assuming the minimum quantities of meth found by the jury, was a life sentence. Because none of defendant’s sentences exceeded the statutory maximum, Apprendi was not applicable. U.S. v. Chavez, 230 F.3d 1089 (8th Cir. 2000).
8th Circuit applies Apprendi to drug cases but finds any error was harmless. (120) The Eighth Circuit held that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), “if the government wishes to seek penalties in excess of those applicable by virtue of the elements of the offense alone, then the government must charge the facts giving rise to the increased sentence in the indictment, and must prove those facts to the jury beyond a reasonable doubt.” Applying Apprendi to 21 U.S.C. § 841, the court held that its prior decisions that drug quantity was a mere “sentencing factor” must be abandoned. Nevertheless, the court upheld the defendant’s mandatory minimum 20-year sentence under 21 U.S.C. § 841(b)(1)(A), because that sentence was within the 20-year maximum authorized by § 841(b)(1)(C) for defendants with a prior conviction, without reference to drug quantity. Thus, the increased maximum sentence in subsection (A) “played no role” in defendant’s sentence. The court noted that Apprendi did not overrule the holding of McMillan v. Pennsylvania, 477 U.S. 79 (1986), that mandatory minimum sentences may be imposed based on non-jury factual findings, as long as the sentence is within the statutory maximum for the crime of which defendant was convicted by the jury. U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000).
8th Circuit rejects argument that defendant must “know” the drug type and quantity. (120) In a footnote, the Eighth Circuit said that the sentencing provisions in 21 U.S.C. § 841(b) “only require the government to prove that the offense ‘involved’ a particular type and quantity of controlled substance, not that the defendant knew he was distributing that particular type and quantity.” Thus, “to the extent Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)] applies, the jury need only be instructed to find, as it did in this case, that a particular type and quantity of controlled substance was involved in the offense.” U.S. v. Sheppard, 219 F.3d 766 (8th Cir. 2000).
8th Circuit finds any Apprendi error harmless due to special verdict on drug quantity. (120) At the government’s request, the district court submitted a “Special Finding” dealing with drug type and quantity. Thus, the jury unanimously found beyond a reasonable doubt that more than 500 grams of methamphetamine were involved in the offense. “Because the indictment had alleged this drug type and quantity, and because the district court made a drug quantity finding at sentencing that was consistent with the jury’s special finding, [defendant] received all the Fifth and Sixth Amendment protections that Jones and Apprendi require.” In these circumstances, “any failure to treat drug type and quantity as an element of the crime was harmless error.” U.S. v. Sheppard, 219 F.3d 766 (8th Cir. 2000).
8th Circuit says “brandishing” a gun is not an element of 924(c) offense, despite Apprendi. (120) Defendant was convicted of bank robbery under 18 U.S.C. § 2113(a) and using or carrying a firearm during the robbery in violation of 18 U.S.C. § 924(c)(1)(A). He was sentenced to 33 months on the robbery count and to a seven-year consecutive sentence on the 924(c) count. Under 924(c)(1)(A), the mandatory minimum five-year term is increased to seven years if the firearm is “brandished.” Defendant argued that the “brandishing” provision was a separate offense which had to be charged and found by the jury beyond a reasonable doubt, relying on Castillo v. U.S., 530 U.S. 120 (2000) (interpreting an earlier version of § 924(c)(1)), and Jones v. U.S., 526 U.S. 227, 232-39 (1999) (interpreting the federal carjacking statute). The Eighth Circuit rejected this argument, noting that the language and structure of § 924(c) “show Congress intended brandishing to be a sentencing factor and not an element.” The court said the new Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) did not apply because the provision imposed a mandatory minimum sentence without increasing the statutory maximum. U.S. v. Carlson, 217 F.3d 986 (8th Cir. 2000).
8th Circuit upholds constitutionality of federal “three strikes” law. (120) Defendant challenged the constitutionality of 18 U.S.C. § 3559(c), the so-called “three strikes” law. Under this statute, the district court sentenced defendant to life imprisonment for his role in a robbery. Since defendant did not raise any argument not previously rejected in U.S. v. Farmer, 73 F.3d 836 (8th Cir. 1996), the Eighth Circuit rejected defendant’s claim. The only appellate decision finding the statute unconstitutional, U.S. v. Kaluna, 152 F.3d 1069 (9th Cir. 1998), has been superseded by an en banc decision of the same court, 192 F.3d 1188 (9th Cir. 1999). U.S. v. Carroll, 207 F.3d 465 (8th Cir. 2000).
8th Circuit says increase in fraud loss due to pre-indictment delay did not violate 5th Amendment. (120) Between 1984 and 1997, defendant was involved in a fraud scheme. She filed a motion to dismiss a 1997 indictment for unreasonable pre-indictment delay under the Fifth Amendment. She claimed that the government should have brought an indictment no later than 1992, and suggested that the government’s five-year delay prejudiced her, in part, because she faced a higher sentence as a result of increasing amounts of loss throughout the period of delay. The Eighth Circuit rejected this claim, since any prejudice was the result of defendant’s own criminal conduct, and not from any government misconduct. U.S. v. Brockman, 183 F.3d 891 (8th Cir. 1999).
8th Circuit rejects frivolous argument that sentencing violated Domestic Violence clause of Constitution. (120) Defendant pled guilty to making false statements in connection with a gun purchase, and possessing a firearm after having been convicted of a misdemeanor involving domestic violence. He argued that his sentencing violated the Domestic Violence Clause in Article IV, § 4 of the Constitution. The Eighth Circuit found that this argument bordered on the frivolous. The Constitution’s reference to “Domestic Violence” means insurrections, riots, and other forms of civil disorders. It has no application to Congress’s powers to regulate the possession of handguns under the Commerce Clause. U.S. v. Smith, 171 F.3d 617 (8th Cir. 1999).
8th Circuit upholds federal “three strikes and you’re out” law. (120) Defendant received a mandatory life sentence under the new federal “three strikes and you’re out” law, 18 U.S.C. § 3559(c). The statute imposes a mandatory life sentence on persons convicted of three or more specified “serious violent felonies.” The Eighth Circuit upheld the constitutionality of the law, rejecting Eighth Amendment, double jeopardy, ex post facto, and equal protection challenges. The life term, under the circumstances of this case, did not constitute cruel and unusual punishment. Defendant was planned an armed robbery of a convenience store, and told his accomplices to shoot the store’s employees. The court had no discretion not to impose a life term. The statute did not violate double jeopardy because it did not subject defendant to new punishment for his previous crimes. There was no ex post facto violation, because the crime for which defendant was sentenced occurred after the effective date of the new statute. The fact that the statute might have a disparate impact on African-Americans was insufficient to show a constitutional violation. U.S. v. Farmer, 73 F.3d 836 (8th Cir. 1996).
8th Circuit reaffirms constitutionality of guidelines. (120) Rejecting a broad-based constitutional challenge to the guidelines, the 8th Circuit reaffirmed that the guidelines do not (1) violate the separation of powers doctrine; (2) offend the due process clause; or (3) allow judges to sentence defendants based upon facts not proven beyond a reasonable doubt. U.S. v. Rankin, 902 F.2d 1344 (8th Cir. 1990).
8th Circuit holds guidelines do not violate due process or the presentment clause. (120) Relying upon earlier decisions, the 8th Circuit held that the guidelines do not violate the separation of powers doctrine, due process, or the presentment clause. U.S. v. White, 890 F.2d 1033 (8th Cir. 1989).
8th Circuit holds that guidelines do not violate the presentment clause. (120) The 8th Circuit held that the guidelines do not violate the presentment clause even though they were not signed by the President. Because the Sentencing Reform Act which delegated the power to establish the guidelines to the Sentencing Commission was duly signed, the President’s signature on the actual guidelines was not required. U.S. v. Barnerd, 887 F.2d 841 (8th Cir. 1989).
9th Circuit upholds child porn guideline against separation of powers challenge. (120) Defendant, convicted of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2), argued that the guideline for that offense, § 2G2.2, violated the separation of powers doctrine. Relying on a long line of Supreme Court and court of appeals decisions, the Ninth Circuit rejected that argument and held that § 2G2.2 does not violate the separation of powers. U.S. v. Kiefer, __ F.3d __ (9th Cir. July 24, 2014) No. 13-50182.
9th Circuit allows judicial finding that safety valve applies. (120) Defendant was convicted of a drug-trafficking offense carrying a 10-year mandatory minimum sentence. At sentencing, the district court found that defendant was not eligible for the “safety valve” under 18 U.S.C. § 3553(f) because he had five criminal history points. The Ninth Circuit held that the district court did not engage in impermissible judicial fact-finding by deciding that the safety valve was not applicable, nor does Apprendi v. New Jersey, 530 U.S. 466 (2000) require the facts regarding the safety valve to be alleged in the indictment or submitted to a jury. U.S. v. Lizarraga-Carrizales, __ F.3d __ (9th Cir. July 2, 2014) No. 10-50148.
9th Circuit says failure to plead to date of removal limits sentence to two years. (120) Under 8 U.S.C. § 1326, which makes it a crime to reenter the U.S. after deportation, a defendant is subject to a two-year sentence, unless the defendant was deported after conviction for an “aggravated felony.” An information charged that defendant had been removed from the U.S. on three occasions before being “found in” the U.S., in violation of § 1326. Two of the removal dates occurred before defendant was convicted of an aggravated felony, and one occurred after his conviction. Defendant pleaded guilty to violating § 1326, but he did not admit any of the dates of removal. The Ninth Circuit held that because his guilty plea did not establish that he had been removed after a conviction for an aggravated felony, the maximum sentence that he could receive was two years, not 20. U.S. v. Guerrero-Jasso, 752 F.3d 1186 (9th Cir. 2014).
9th Circuit says distribution enhancement is not an element of child pornography offense. (120) Defendant was convicted of receipt of child pornography under 18 U.S.C. § 2252(a)(2). Under the Guideline for child pornography offenses, a defendant is subject to a two-level enhancement under § 2G2.2(b)(3)(F) if the defendant distributed child pornography. At defendant’s sentencing, the district court imposed the “distribution” enhancement because defendant had distributed child pornography using a peer-to-peer network. The Ninth Circuit held that the distribution enhancement was not an element of the offense so it did not have to be submitted to the jury and proved beyond a reasonable doubt. U.S. v. Vallejos, 742 F.3d 902 (9th Cir. 2014).
9th Circuit says Alleyne requires vacating mandatory minimum that was not based on jury’s finding. (120) In Alleyne v. U.S., 133 S.Ct. 2151 (2013), the Supreme Court held that Apprendi applies to mandatory minimums, so any fact that forms the basis for a mandatory minimum sentence must be alleged in the indictment and proved to a jury beyond a reasonable doubt. Here, defendant was convicted of using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and the district court found by a preponderance that defendant discharged the firearm during and in relation to the drug trafficking crime. Based on that finding, defendant was sentenced to a mandatory consecutive term of 10 years. The Ninth Circuit held that because the 10-year mandatory sentence imposed on defendant was based on a fact found by the court, defendant’s sentence violated Alleyne and had to be vacated. U.S. v. Lira, 725 F.3d 1043 (9th Cir. 2013).
9th Circuit says Apprendi does not apply to facts that trigger restitution. (120) In Southern Union Co. v. U.S., 132 S.Ct. 2344 (2012), the Supreme Court stated that the rule it announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that a fact that increases a defendant’s maximum sentence must be alleged in the indictment and proved at trial, applies to facts that increase the amount of a fine imposed on a corporation. The Ninth Circuit held that Southern Union does not require the government to allege and prove the facts that trigger restitution under 18 U.S.C. § 3663A. U.S. v. Green, 722 F.3d 1146 (9th Cir. 2013).
9th Circuit says prior felony triggering mandatory minimum need not be alleged and proved. (120) Defendant was convicted of distributing more than 50 grams of methamphetamine. Because he had a prior felony conviction for possession of PCP, defendant received a 20-year mandatory minimum sentence. The Ninth Circuit rejected defendant’s contention that he could not receive the enhancement unless the indictment alleged and the government proved beyond a reasonable doubt that defendant had a prior felony. U.S. v. Ramirez, 714 F.3d 1134 (9th Cir. 2013).
9th Circuit finds no separation of powers violation in statute requiring mandatory minimum for gun use. (120) Under 18 U.S.C. § 924(c), it is a federal offense carrying a mandatory minimum sentence to use or carry a firearm during and in relation to, or possess a firearm in furtherance of, a crime of violence. Defendant argued that § 924(c) violated the separation of powers by improperly giving the prosecutor the power to determine the length of the defendant’s sentence through charging decisions. The Ninth Circuit held that § 924(c) fell within the prosecutor’s discretion to determine what charges to bring and did not violate the separation of powers. U.S. v. Major, 676 F.3d 803 (9th Cir. 2012).
9th Circuit says using parole status to increase sentence violated Apprendi but was harmless. (120) When defendant was sentenced in California state court for kidnapping, state law allowed the court to impose a higher, lower, or middle term of imprisonment for that offense. The trial court imposed the upper term of eight years based in part on the court’s finding that defendant was on parole when he committed the kidnapping. The Ninth Circuit held that the trial court’s reliance on a fact that had not been found by the jury to increase defendant’s sentence violated the Sixth Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000). The court held, however, that the error was harmless because the record as a whole showed that defendant was on parole when he committed the kidnapping. Estrella v. Ollison, 668 F.3d 593 (9th Cir. 2011).
9th Circuit holds that harmless error analysis for Apprendi error may consider entire record. (120) At defendant’s state sentencing, the trial court increased defendant’s sentence based on its finding that defendant had been on parole for a violent offense at the time he committed the offense of conviction. After finding that the district court’s reliance on a fact not found by the jury violated Apprendi v. New Jersey, 530 U.S. 466 (2000), the Ninth Circuit held that the error was harmless. The court rejected defendant’s contention that its harmless error analysis must rest only on the evidence introduced at defendant’s trial and held instead that a court may look at the entire record, including the evidence presented at sentencing. Estrella v. Ollison, 668 F.3d 593 (9th Cir. 2011).
9th Circuit says lack of proof of drug type limited sentence to lowest maximum for any drug. (120) Defendant was charged with attempted possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a), based on his possession of an unopened Federal Express box containing a kilogram of cocaine. At his guilty plea colloquy, neither the court nor the prosecutor expressly informed defendant that the government would be required to prove that he intended to possess cocaine. In response, defendant admitted only the elements of a violation of § 841(a); although he admitted that he intended to possess a controlled substance, he declined to admit that he knew that the controlled substance was cocaine. The Ninth Circuit held that because defendant did not admit that he attempted to possess cocaine, he was subject only to a one-year maximum sentence. U.S. v. Hunt, 656 F.3d 906 (9th Cir. 2011).
9th Circuit allows variance from child porn guidelines based on policy disagreement. (120) Since the Sentencing Commission first promulgated Guidelines for child pornography offenses, they have been revised nine times. Most of the revisions resulted from congressional directives to the Commission, and in one case Congress directly enacted amendments to the Guidelines. Because the child porn Guidelines are not the result of empirical study by the Commission and instead reflect congressional mandates, the Ninth Circuit held that district courts may vary from the child pornography Guidelines in § 2G2.2 based on a policy disagreement with them, and not simply based on an individualized determination that the Guidelines yield an excessive sentence in a particular case. U.S. v. Henderson, 649 F.3d 955 (9th Cir. 2011).
9th Circuit reaffirms that prior conviction need not be found by jury. (120) Under 8 U.S.C. § 1326(b), a defendant convicted of illegal reentry after deportation is subject to a higher sentence if he has been deported after conviction for a felony. The Supreme Court in Almendarez-Torres v. U.S., 523 U.S. 224 (1998) held that a court could impose the higher sentence in § 1326(b) without a jury finding that the defendant had been convicted of the prior felony. Defendant argued that Nijhawan v. Holder, 129 S.Ct. 2294 (2009) had effectively overruled Almendarez-Torres, but the Ninth Circuit rejected that argument. U.S. v. Valdovinos-Mendez, 634 F.3d 1049 (9th Cir. 2011).
9th Circuit requires fact that prior conviction involved minor to be pleaded and proved to jury. (120) Under 18 U.S.C. § 3559(e)(1), a person convicted of a federal sex offense in which a minor is the victim must receive a life sentence if he has a prior sex conviction in which the victim was a minor. Defendant was convicted of sex trafficking a minor. Under that statute, a “minor” is a person under 17 years old. The district court sentenced defendant to life imprisonment because he had a prior conviction in Nevada for child pandering. Nevada defines a child as a person less than 18 years old. The court determined that defendant’s Nevada conviction triggered a life sentence by examining the charging documents, plea colloquy, and plea agreement from that prosecution. The Ninth Circuit held that under § 3559(e), proof that the defendant’s prior conviction involved a minor must be established to a jury beyond a reasonable doubt because it increases the defendant’s maximum sentence. U.S. v. Doss, 630 F.3d 1181 (9th Cir. 2011).
9th Circuit says changes in California parole hearing scheduling do not violate Ex Post Facto Clause. (120) When California Board of Parole Hearings denies parole to a prison inmate, state law requires the Board to set the next parole hearing. In 2008, California changed the law governing the scheduling of the next parole hearing of an inmate who was denied parole. The 2008 law changed the minimum interval between the denial of parole to the inmate’s next hearing from one to three years; the 2008 law changed the maximum interval from five to 15 years; and the law set the default interval at 15 years. Before 2008, the interval was one year unless the Board found it was unreasonable to expect the inmate would become suitable for parole within one year. After 2008, the interval is 15 years unless the Board finds by clear and convincing evidence that the inmate will be suitable for parole in 10 years. If the Board finds by clear and convincing evidence that the inmate will be suitable for parole in seven years, the Board has discretion to set a three-, five-, or seven-year interval. California prisoners sued to invalidate the 2008 changes under the Ex Post Facto Clause. The Ninth Circuit held that the 2008 law did not violate the Ex Post Facto Clause because it did not create a significant risk of prolonging any inmate’s sentence. Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011).
9th Circuit upholds sentence for sex trafficking despite lack of jury findings. (120) In U.S. v. Todd, 584 F.3d 788 (9th Cir. 2009), the defendant was convicted of violating 18 U.S.C. § 1591 by recruiting women to engage in commercial sex acts knowing that force, fraud, or coercion would be used to cause the person to engage in the sex act. In its initial decision, the Ninth Circuit found that the statute required the jury to find that defendant’s offense had been effected by fraud, force, or coercion to justify a sentence above 15 years. Because, the court found, the jury had not made the requisite finding, the court concluded that the district court erred in imposing a 26-year sentence. In an amended opinion issued on November 15, 2010, the Ninth Circuit deleted the portion of its opinion finding that jury findings were necessary to support a sentence above 15 years and simply found that the evidence was sufficient to support defendant’s sentence. U.S. v. Todd, 627 F.3d 329 (9th Cir. 2010).
9th Circuit holds that assault statute is not facially unconstitutional under Apprendi. (120) A federal statute, 18 U.S.C. § 111, makes it a federal crime to assault a federal officer. A defendant who violates § 111 is subject to an enhanced sentence if he used a deadly or dangerous weapon or inflicted bodily injury. At trial, the jury was instructed that it had to determine whether defendant used a dangerous weapon or inflicted bodily injury. Defendant argued, however, that § 111 was facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 446 (2000), because Congress intended the facts that increase a defendant’s sentence to be sentencing factors decided by the court, not facts found by the jury. Judge Canby, joined by Judge Rawlinson, held that § 111 is not facially unconstitutional. Judge N.R. Smith dissented on other grounds. U.S. v. Vela, 624 F.3d 1148 (9th Cir. 2010).
9th Circuit rejects use of “parsimony clause” to set statutory maximum. (120) Defendant pleaded guilty to bringing marijuana across the border into the U.S. Her Guidelines range was 15 to 21 months. At sentencing, defendant asked for a sentence of probation, arguing that a probationary sentence was required by the “parsimony clause” of 18 U.S.C. § 3553(a), which states that a court “shall impose” a sentence sufficient, but no greater than necessary, to comply with the factors set forth in § 3553(a)(2). Defendant asserted that a sentence that is sufficient to comply with the § 3553(a) factors is the statutory maximum and that a higher sentence would violate Apprendi. The Ninth Circuit held that the offense of conviction, not § 3553, sets the statutory maximum. Because defendant pleaded guilty to an offense carrying a five-year maximum, Apprendi did not limit the court’s ability to impose a 15-month sentence. U.S. v. Chavez, 611 F.3d 1006 (9th Cir. 2010).
9th Circuit says judge’s finding of facts justifying sentence under statutory maximum does not violate Sixth Amendment. (120) Defendants argued that their sentences violated the Sixth Amendment because the district court found facts to justify its application of the factors set forth in 18 U.S.C. § 3553(a). According to defendants, the facts found by the jury would have justified a much lower sentence. The Ninth Circuit rejected this argument, holding that a court may impose any sentence up to the maximum set by the statute defining the offense without violating the Sixth Amendment and that the requirement that a sentence be reasonable does not set a lower statutory maximum. U.S. v. Treadwell, 593 F.3d 990 (9th Cir. 2010).
9th Circuit declines to overturn state interpretation of Apprendi’s prior conviction exception. (120) Under Apprendi v. New Jersey, 530 U.S. 466 1252000), “any fact (other than the fact of a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” At defendant’s sentencing in California state court, the trial court found that defendant committed his offenses while on probation for another offense. Based on that finding, the court increased the maximum penalty for defendant’s offense. The California courts held that defendant’s sentence had not been imposed in violation of Apprendi because defendant’s probationary status fell within the “prior conviction” exception to Apprendi. In federal habeas proceedings, the Ninth Circuit noted that the California court’s interpretation of the “prior conviction” exception was not consistent with its prior cases holding that a defendant’s probationary status did not fall within the “prior conviction” exception, but held that the California courts’ conclusion was not unreasonable and therefore could not be overturned in a habeas proceeding. Kessee v. Mendoza-Powers, 574 F.3d 675 (9th Cir. 2009).
9th Circuit says Ameline remand may not consider post-sentence rehabilitation. (120) After the Supreme Court’s decision in Booker, the Ninth Circuit in U.S. v. Ameline, 409 F.3d 1073 (2005), authorized limited remands for defendants who were sentenced before Booker. In an Ameline remand, the district court is to determine whether it would have imposed the same sentence had it known that the Sentencing Guidelines were advisory. After his case was remanded to the district court under Ameline, defendant asked the district court to reduce his sentence because of his post-sentence rehabilitation. The district court concluded that it could not consider post-sentence rehabilitation in an Ameline remand, and the Ninth Circuit affirmed. The court held that in an Ameline remand, the district court must view the defendant’s sentence based on the information it had at the time of sentencing. U.S. v. Bernardo Sanchez, 569 F.3d 995 (9th Cir. 2009).
9th Circuit finds that Nevada habitual sentencing law does not violate Apprendi. (120) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be proved to a jury beyond a reasonable doubt. Under Nevada’s habitual sentencing statute, Nev. Rev. Stat. 207.010, a person who has three qualifying felony convictions who is convicted of another felony “is a habitual criminal and shall be punished as one.” The court has discretion to dismiss a habitual criminal allegation, but it has no discretion to decline to impose a habitual criminal sentence on a defendant who qualifies as a habitual criminal. The Ninth Circuit held that the fact of a defendant’s prior convictions, standing alone, exposed defendant to the enhanced sentence required by the habitual sentencing law, and the court’s discretion to dismiss a habitual criminal allegation did not implicate Apprendi. Tilcock v. Budge, 538 F.3d 1138 (9th Cir. 2008).
9th Circuit says maximum sentence for failure to appear is one year absent proof that underlying offense was a felony. (120) The failure-to-appear statute, 18 U.S.C. § 3146, makes it a crime to fail to appear in court when the defendant has been released on bail for another offense. The statute provides that a defendant may be punished by a term of imprisonment of more than one year only if the offense on which the defendant failed to appear is a felony. At trial, the government proved that defendant failed to appear, but did not prove beyond a reasonable doubt that the underlying offense was a felony. The Ninth Circuit held that the government’s failure to prove that the underlying offense was a felony meant that defendant could be sentenced to no more than one year. U.S. v. Locklin, 530 F.3d 908 (9th Cir. 2008).
9th Circuit says probationary status is not a prior conviction for purposes of Apprendi exception. (120) In Cunningham v. California, 549 U.S. 270 (2007), the Supreme Court held that California’s sentencing scheme violated Apprendi to the extent that it allowed judges to impose a sentence in the higher range based on a fact (other than the fact of a prior conviction) that was not found by the jury. The California law created a lower term, a middle term, and an upper term for each offense, and the court was required to impose the middle term unless it found aggravating or mitigating factors. At defendant’s sentencing, the trial court imposed an upper-term sentence because defendant was on probation when he committed the offense. In federal habeas proceedings, the State claimed that the fact that defendant was on probation fell within the prior-conviction exception to Apprendi. The Ninth Circuit held that the defendant’s probationary status did not fall within the exception for prior convictions. Butler v. Curry, 528 F.3d 624 (9th Cir. 2008).
9th Circuit says case invalidating California’s determinate sentencing law is retroactive. (120) California’s determinate sentencing law created three sentencing ranges for each offense. Under the law, a court was to impose a sentence in the middle range unless it found mitigating or aggravating facts that justified a sentence in the lower or upper range. In Cunningham v. California, 549 U.S. 270 (2007), the Supreme Court held that California’s sentencing scheme violated Apprendi to the extent that it allowed judges to impose a sentence in the higher range based on facts that were not found by the jury. At defendant’s sentencing, the trial court imposed an upper-tier sentence because defendant was on probation at the time the offense was committed. Defendant’s conviction became final before the Court decided Cunningham. The Ninth Circuit held that Cunningham did not establish a “new rule” and therefore that the rule it announced applied to cases both on direct and collateral review. Accordingly, the court held, defendant was entitled to the benefit of Cunningham. Butler v. Curry, 528 F.3d 624 (9th Cir. 2008).
9th Circuit reaffirms that supervised release revocation procedures do not violate Apprendi. (120) In U.S. v. Huerta-Pimental, 445 F.3d 1220 (9th Cir. 2006), the court held that revocation of a term of supervised release does not violate Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires that any fact, other than the fact of a prior conviction, that increases the maximum penalty for a crime must be found by a jury beyond a reasonable doubt. Defendant argued that Huerta-Pimental is no longer good law after Cunningham v. California, 549 U.S. 270 (2007), which held that California’s three-tier sentencing scheme violated Apprendi to the extent that it allowed a judge to sentence in a higher tier based on facts found by the judge. The Ninth Circuit rejected that contention and reaffirmed that revocation of supervised release is not governed by the Sixth Amendment. U.S. v. Santana, 526 F.3d 1257 (9th Cir. 2008).
9th Circuit says Guidelines sentence did not penalize exercise of trial right. (120) Prior to defendant’s trial for illegal reentry after deportation, the government offered defendant the opportunity to plead guilty and receive a 48-month sentence. Defendant rejected the offer, went to trial, and was convicted. At sentencing, defendant informed the court that the government had offered a 48-month sentence prior to trial and asked the court to impose that sentence. The district court imposed a 90-month sentence. The Ninth Circuit found nothing in the record to support defendant’s contention that the district court imposed the 90-month sentence in retaliation for defendant’s decision to go to trial. U.S. v. Vasquez-Landaver, 527 F.3d 798 (9th Cir. 2008).
9th Circuit declines presumption of reasonableness but says guidelines sentence will usually be reasonable. (120) The en banc Ninth Circuit rejected a presumption of reasonableness for guideline sentences, but said that such a presumption was “more linguistic than practical” in any event because “in the overwhelming majority of cases, a guideline sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.” The opinion went on to describe, in a series of bullet points, the procedure that the district court must follow in imposing a sentence after the Supreme Court’s recent opinions in Rita, Gall, and Kimbrough. Chief Judge Kozinski concurred, joined by Judge Kleinfeld, stating that despite the opinion’s “quixotic” claim that it was not applying a presumption of reasonableness, “its clear that this is precisely what the opinion does.” Judge Silverman concurred separately, arguing that the Supreme Court in Gall v. U.S., 552 U.S. 38, 128 S.Ct. 586, 597 (2007) held that each panel was entitled to decide whether to apply a presumption of reasonableness. It did not invite the circuits to split over whether to apply a presumption of reasonableness. U.S. v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc).
9th Circuit holds that indictment’s failure to allege a fact necessary to raise statutory maximum is subject to harmless error. (120) Under 8 U.S.C. § 1326(b), a defendant convicted of illegal reentry after removal is subject to an increased maximum sentence if he was removed after committing an aggravated felony. The Ninth Circuit held that when the government seeks an enhanced sentence under § 1326(b), the indictment must allege either the date of the defendant’s prior removal or the temporal relationship between the removal and the defendant’s prior conviction. The court held, however, that the failure to allege in the indictment a fact necessary to trigger a higher sentence is not structural error and that it is subject to harmless error review. U.S. v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007).
9th Circuit says illegal reentry indictment must allege prior removal date to subject defendant to enhanced sentence. (120) Under 8 U.S.C. § 1326(a), it is a crime punishable by two years’ imprisonment to reenter the U.S. after removal. Under 8 U.S.C. § 1326(b), the maximum sentence increases to 20 years if the defendant’s prior removal occurred after his conviction for an aggravated felony. The Ninth Circuit held that under Apprendi v. New Jersey, 530 U.S. 466 (2000), a defendant is not subject to the increased penalty unless the indictment alleges either the date of the defendant’s prior removal or the temporal relationship between the removal and the defendant’s prior conviction. U.S. v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007).
9th Circuit affirms collecting DNA from persons on supervised release. (120) The DNA Analysis Backlog Elimination Act of 2000 authorizes a probation officer to collect a DNA sample from a person on supervised release. In U.S. v. Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc), and U.S. v. Reynard, 473 F.3d 1008 (9th Cir. 2007), the court held that requiring convicted offenders to give DNA samples does not constitute an unconstitutional suspicionless search, in violation of the Fourth Amendment, and did not violate the Ex Post Facto Clause as applied to defendants sentenced before the Act became effective. Here, the Ninth Circuit held that the Act does not impose punishment on a disfavored class and therefore does not constitute an unconstitutional bill of attainder. The court also held that the Act does not violate the constitutional separation of powers by allowing probation officers to exercise executive branch functions. U.S. v. Lujan, 504 F.3d 1003 (9th Cir. 2007).
9th Circuit, in superseding opinion, says that district court’s frustration with guidelines sentence does not allow post-Booker withdrawal of mandate. (120) When defendant Carrington was sentenced in 1990 to 324 months for drug-trafficking offenses, the district court described the Sentencing Guidelines as “bad law,” and expressed frustration with the limitations on the court’s discretion imposed by the guidelines. When defendant Tillitz was sentenced in 1998 to 360 months for drug-trafficking crimes, the same district court judge noted that he had ruled the guidelines unconstitutional when they were first promulgated but that the Supreme Court had overturned that ruling. Both sentences were upheld on appeal. In 2005, after the decision in U.S. v. Booker, 543 U.S. 220 (2005), Tillitz filed a petition for a writ of audita querela seeking relief from his sentence, and Carrington moved for modification of his sentence. The district court judge denied both motions, but asked the court of appeals to recall its mandate so that the court could resentence the defendants. The Ninth Circuit initially held that the two cases presented “extraordinary circumstances” that justified recall of the court’s mandate from the defendants’ earlier appeals so that the district court could resentence the defendants. In a superseding opinion, however, the court held that defendants had not presented the requisite “extraordinary circumstances” to justify recalling the mandate. Carrington v. U.S., 503 F.3d 888 (9th Cir. 2007), amended, 530 F.3d 1183 (9th Cir. 2008).
9th Circuit, in superseding opinion, holds that audita querela may not be used to raise Booker challenge. (120) In 2005, a defendant sentenced in 1990 filed a petition for a writ of audita querela arguing that his sentence was unconstitutional under U.S. v. Booker, 543 U.S. 220 (2005). In a superseding opinion, the Ninth Circuit held that the writ of audita querela is available only to fill “gaps” in the relief available through a habeas petition and that the limits on second or successive habeas petitions do not create a “gap” in habeas relief. On that basis, the court held that a writ of audita querela may not be used to raise a Booker claim that cannot be raised in a habeas petition. Carrington v. U.S., 503 F.3d 888 (9th Cir. 2007), amended, 530 F.3d 1183 (9th Cir. 2008).
9th Circuit holds that 16-level enhancement for prior drug or violent conviction does not violate equal protection. (120) The guideline for illegal reentry after deportation, § 2L1.2, provides for a 16-level increase in offense level if the defendant was deported after incurring a conviction for a “crime of violence” or a “drug trafficking offense.” Defendant claimed that the 16-level enhancement violated the Equal Protection Clause because a defendant convicted of another offense who had the same criminal history would not be subject to a 16-level enhancement. Instead, a defendant convicted of, for example, illegal possession of a firearm who had a prior conviction that would be sufficient to trigger the 16-level enhancement under § 2L1.2 would have a lower offense level. The Ninth Circuit held that the 16-level enhancement has a rational basis, serves a legitimate government interest and therefore does not violate the Equal Protection Clause. U.S. v. Ruiz-Chairez, 493 F.3d 1089 (9th Cir. 2007).
9th Circuit holds that prior conviction triggering enhanced drug sentence does not require proof beyond a reasonable doubt. (120) Under 21 U.S.C. § 841(b)(1)(A), a defendant convicted of a drug-trafficking offense is subject to an increased sentence if he has “a prior conviction for a felony drug offense.” Defendant argued that under Apprendi, the government had to prove the prior felony conviction to a jury beyond a reasonable doubt because application of the enhancement turns on disputed facts concerning the nature of the prior offense. The Ninth Circuit disagreed on the ground that determining whether a prior conviction qualifies under § 841 (b) as a “prior conviction for a felony drug offense” turns on the fact of conviction and the statutory definition of the prior offense. It does not involve judicial fact-finding in violation of Apprendi. U.S. v. Hollis, 490 F.3d 1149 (9th Cir. 2007), abrogated as to cocaine base by DePierre v. U.S., 131 S.Ct. 2225, 180 L.Ed.2d 114 (2011), as recognized in U.S. v. Sykes, 658 F.3d 1140 (9th Cir. 2011).
9th Circuit, en banc, says date of prior conviction falls within prior-conviction exception to Apprendi. (120) Under Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Sixth Amendment does not require the government to prove a defendant’s prior conviction beyond a reasonable doubt to a jury when the fact of that prior conviction increases a defendant’s maximum sentence. Defendant argued that the date of the prior conviction fell outside the prior-conviction exception to the Apprendi rule that any fact that increases a defendant’s maximum sentence must be proved beyond a reasonable doubt to a jury. Therefore, he argued, in seeking an enhanced sentence under the Armed Career Criminal Act, the government had to prove the date of his conviction beyond a reasonable doubt to a jury. Sitting en banc, the Ninth Circuit held that the date of the offense is part of “the fact” of the prior conviction. U.S. v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc).
9th Circuit says district court must consider parties’ written submissions in Ameline remand. (120) Defendant was sentenced before Booker under the then-mandatory guidelines. The Ninth Circuit remanded pursuant to the procedure established in U.S. v. Ameline, 409 F.3d 1073 (2006), to allow the district court to determine whether it would have imposed a different sentence under the advisory guidelines regime established by Booker. On remand, the district court reaffirmed defendant’s sentence without seeking any input from the parties. The Ninth Circuit held that in an Ameline remand, the district court must seek written submissions from the parties and that the error was not subject to harmless error review. U.S. v. Fifield, 485 F.3d 1053 (9th Cir. 2007).
9th Circuit finds no right to habeas relief for sentencing right recognized by California court. (120) The California courts have held that under the Equal Protection Clause, a defendant’s sentence may not be enhanced based on a prior conviction obtained in violation of defendant’s rights. In federal habeas proceedings, defendant argued that the state courts violated this rule by upholding his sentence under California’s three-strikes law. The Ninth Circuit rejected this argument, holding that the U.S. Supreme Court had never recognized the Equal Protection right at issue. Nunes v. Ramirez-Palmer, 485 F.3d 432 (9th Cir. 2007).
9th Circuit says that after Booker, statutory maximum determines maximum term for supervised release violation. (120) The statutory maximum sentence for the offense of conviction usually determines the maximum term of supervised release and the maximum sentence that a defendant can receive for violating the terms of his supervised release. 18 U.S.C. § 3583. Prior to Booker, courts understood the maximum sentence for purposes of determining the permissible supervised release term as the maximum statutory sentence, not the maximum sentence available under the applicable guidelines. Defendant, who was sentenced before Booker, argued that the maximum sentence she could receive for violating the conditions of her supervised release should be determined by the maximum term available under the guidelines. The Ninth Circuit rejected this argument and held that Booker did not alter the meaning of the term “statutory maximum.” Thus the statutory maximum sentence for the underlying offense determines the permissible term of supervised release and the maximum sentence that can be imposed for a violation of supervised release. U.S. v. Ray, 484 F.3d 1168 (9th Cir. 2007).
9th Circuit says that court may assess cooperation under statutory factors, not § 5K1.1. (120) After pleading guilty, defendant cooperated with the government. At sentencing, the government filed a motion under § 5K1.1 asking the court to depart downward by six levels from the sentence required by the guideline range. The district court declined to depart downward; instead, relying on its authority under Booker, the court reduced defendant’s sentence by four years due to his cooperation. The Ninth Circuit held that the district court did not err in assessing defendant’s cooperation as part of its consideration of the sentencing factors set forth in 18 U.S.C. § 3553 instead of under the “anachronistic” guidelines regime. U.S. v. Zolp, 479 F.3d 715 (9th Cir. 2007).
9th Circuit says district court erred in failing to conduct full resentencing on remand. (120) For defendants who were sentenced before the Sentencing Guidelines were rendered advisory in U.S. v. Booker, 543 U.S. 220 (2005), the Ninth Circuit has adopted a “limited remand” procedure. The court of appeals uses that procedure when the defendant failed to object to the use of the mandatory guidelines and the record is insufficient for the court to determine whether the district court would have imposed a different sentence if it had known that the guidelines were advisory. In defendant’s case, the court of appeals concluded from the district court’s comments at defendant’s sentencing that there was a reasonable probability that defendant would have received a different sentence, and it vacated and remanded for a full resentencing. On remand, the district court used the limited remand procedure and concluded that it would have imposed the same sentence if it had known the guidelines were advisory. The Ninth Circuit held that its mandate required the district court to conduct a full resentencing and that the court erred in using the limited remand procedure. U.S. v. Perez, 475 F.3d 1110 (9th Cir. 2007).
9th Circuit reaffirms that acquitted conduct may be used at sentencing. (120) In U.S. v. Watts, 519 U.S. 148 (1997), the Supreme Court held that at sentencing, a district court could consider conduct by the defendant underlying charges on which he was acquitted. Defendants argued that U.S. v. Booker, 543 U.S. 220 (2005), undermined Watts and precluded the use of acquitted conduct in determining a defendant’s sentence. The Ninth Circuit rejected that argument and held that the use of acquitted conduct at sentencing does not violate the Sixth Amendment. U.S. v. Mercado, 474 F.3d 654 (9th Cir. 2007).
9th Circuit rules jury necessarily found that removal from U.S. occurred after aggravated felony conviction. (120) The statute barring illegal reentry after removal, 8 U.S.C. § 1326, provides for an increased statutory maximum if the defendant’s prior removal from the U.S. occurred subsequent to a conviction for an aggravated felony. Defendant argued that the district court violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and U.S. v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006), by finding that his removal occurred after the commission of an aggravated felony. Instead, he argued, he could be subjected to the enhanced penalty only if a jury found that fact beyond a reasonable doubt. The Ninth Circuit held that because the only removals introduced at trial were subsequent to defendant’s aggravated felony conviction, the jury necessarily found beyond a reasonable doubt that defendant’s prior removal was subsequent to his conviction for an aggravated felony. U.S. v. Martinez-Rodriguez, 472 F.3d 1087 (9th Cir. 2006).
9th Circuit holds that new challenges to sentence may not be raised in Ameline remand. (120) In U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the court held that when a defendant failed to challenge his sentence in the district court prior to the decision in U.S. v. Booker, 543 U.S. 220 (2005), but sought the benefit of that decision before his appeal became final, the court of appeals would order a limited remand to allow the district court to determine whether it would have imposed the same sentence under an advisory guidelines regime. The Ninth Circuit held that during a limited “Ameline remand,” a defendant may not raise new challenges to his sentence that he had not previously raised. U.S. v. Combs, 470 F.3d 1294 (9th Cir. 2006).
9th Circuit says that district court’s conclusion that it would have imposed same sentence under Booker is unreviewable. (120) Defendant was sentenced before the decision in U.S. v. Booker, 543 U.S. 220 (2005). On appeal, he did not challenge his sentence, and the court of appeals affirmed. After Booker was decided, defendant filed a timely petition for rehearing seeking the benefit of Booker. Pursuant to U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the court of appeals remanded to allow the district court to determine whether it would have imposed a lower sentence if it had known that the guidelines were advisory. The district court concluded that it would not have imposed a materially different sentence. The Ninth Circuit held that a district court’s decision in an “Ameline remand” that it would have imposed the same sentence under an advisory guideline system is “effectively unreviewable” and subject to “absolute deference,” as long as the district court understood the scope of its discretion after Ameline and Booker. U.S. v. Combs, 470 F.3d 1294 (9th Cir. 2006).
9th Circuit says that district court’s frustration with guidelines sentence justifies post-Booker withdrawal of mandate. (120) When defendant Carrington was sentenced in 1990 to 324 months for drug-trafficking offenses, the district court described the Sentencing Guidelines as “bad law,” and expressed frustration with the limitations on the court’s discretion imposed by the guidelines. When defendant Tillitz was sentenced in 1998 to 360 months for drug-trafficking crimes, the same district court judge noted that he had ruled the guidelines unconstitutional when they were first promulgated but that the Supreme Court had overturned that ruling. Both sentences were upheld on appeal. In 2005, after the decision in U.S. v. Booker, 543 U.S. 220 (2005), Tillitz filed a petition for a writ of audita querela seeking relief from his sentence, and Carrington moved for modification of his sentence. The sentencing district court judge denied both motions, but asked the court of appeals to recall its mandate so that the court could resentence the defendants. The Ninth Circuit held that the two cases presented “extraordinary circumstances” that justified recall of the court’s mandate from the defendants’ earlier appeals so that the district court could resentence the defendants. Carrington v. U.S., 470 F.3d 920 (9th Cir. 2006), superseded, Carrington v. U.S., 503 F.3d 888 (9th Cir. 2007).
9th Circuit holds that audita querela may not be used to raise Booker challenge. (120) In 2005, a defendant sentenced in 1990 filed a petition for a writ of audita querela arguing that his sentence was unconstitutional under U.S. v. Booker, 543 U.S. 220 (2005). The Ninth Circuit held that the writ of audita querela is available only to fill “gaps” in the relief available through a habeas petition and that the limits on second or successive habeas petitions do not create a “gap” in habeas relief. On that basis, the court held that a writ of audita querela may not be used to raise a Booker claim that cannot be raised in a habeas petition. Carrington v. U.S., 470 F.3d 920 (9th Cir. 2006), superseded, Carrington v. U.S., 503 F.3d 888 (9th Cir. 2007).
9th Circuit holds that composition of Sentencing Commission does not violate separation of powers. (120) The statute originally creating the Sentencing Commission provided that at least three of its members had to be federal judges. In 2003, Congress amended the law to provide that no more than three members of the Commission may be federal judges. A defendant argued that the statute altering the composition of the Commission violated the separation of powers because the Commission is part of the judicial branch but a majority of the members of the Commission are not judges, and it is possible that the Commission could contain no judges. The Ninth Circuit rejected this argument and held that because the Commission is not a court and does not exercise judicial power, its composition does not violate the separation of powers. U.S. v. Kuchinski, 469 F.3d 853 (9th Cir. 2006).
9th Circuit says state court need not follow Ninth Circuit Apprendi interpretation. (120) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that facts other than prior convictions that increase a defendant’s maximum sentence must be proved to a jury beyond a reasonable doubt. In U.S. v. Tighe, 266 F.3d 1187 (9th Cir. 2001), the court held that Apprendi’s prior conviction exception does not apply to juvenile adjudications. The California state courts have declined to follow Tighe and instead have held that prior juvenile adjudications are not subject to the Apprendi rule. In federal habeas proceedings, a defendant claimed that the state courts erred by not following Tighe. The Ninth Circuit held that because Tighe does not represent clearly established federal law as determined by the state court, a state court is free to decline to follow it. For that reason, the court declined to grant defendant relief on his habeas petition. Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006).
9th Circuit finds that Arizona “non-dangerous” recidivist sentence does not violate Apprendi. (120) After the jury found defendant guilty of attempted kidnapping and attempted robbery in Arizona state court, it also found that he was “dangerous.” That finding allowed the trial court to sentence defendant either as a first-time “dangerous” offender or as a recidivist “non-dangerous” offender based on his two prior “non-dangerous” convictions. A first-time dangerous offender may be sentenced to a maximum of 15 years, and a recidivist non-dangerous offender faces a 20-year maximum sentence. The judge sentenced defendant as a non-dangerous recidivist offender. The Ninth Circuit held that because under Arizona law the applicable statutory maximum for any defendant with the requisite prior non-dangerous convictions is 20 years, the trial judge did not violate the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), by disregarding the jury’s “dangerousness” finding and sentencing defendant as a non-dangerous recidivist. Stokes v. Shriro, 465 F.3d 397 (9th Cir. 2006).
9th Circuit finds that sentence based on aggravating factors found by judge violates Apprendi. (120) Defendant was convicted of attempted kidnapping and attempted robbery. Those offenses carried a maximum sentence of 20 years. Under Arizona law at that time, the court could increase defendant’s sentence if it found certain aggravating factors. The judge found that defendant had caused physical and emotional harm to his victim and that his prior non-dangerous offenses were strikingly similar to the instant offense. Based on those aggravating factors, the court sentenced defendant to an aggravated term of 25 years. The Ninth Circuit held that increasing defendant’s maximum sentence based on findings made by the judge violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). Stokes v. Shriro, 465 F.3d 397 (9th Cir. 2006).
9th Circuit en banc to review role of guidelines in post-Booker sentencing. (120) On August 21, 2006, the Ninth Circuit granted en banc review in U.S. v. Carty, 453 F.3d 1214 (9th Cir. 2006) and U.S. v. Zavala, 443 F.3d 1165 (9th Cir. 2006) to undertake a comprehensive review of post-Booker sentencing decisions. The questions the court invited the parties to address include whether the court of appeals has jurisdiction to review a within-guidelines sentence; whether within-guidelines sentences are entitled to a presumption of reasonableness; the approach the court of appeals should use in reviewing a sentence for reasonableness; whether the district court has a duty to articulate its consideration of the factors set forth in 18 U.S.C. § 3553(a); and the weight that the advisory guidelines range has in relation to other § 3553(a) factors. U.S. v. Carty, 462 F.3d 1066 (9th Cir. 2006) (granting rehearing en banc).
9th Circuit holds that counsel’s view must be sought during limited remand. (120) Because defendant was sentenced before Booker, the Ninth Circuit ordered a limited remand of his case to allow the district court to determine whether it would have imposed the same sentence under the advisory guidelines scheme. On remand, the district court did not solicit the views of defendant’s counsel or the government and instead simply stated that it would re-impose the same sentence it had originally imposed if the sentence were vacated. The Ninth Circuit held that when the court orders a limited remand to determine whether the district court would have imposed the same sentence after Booker, the district court must obtain the views of counsel. U.S. v. Montgomery, 462 F.3d 1067 (9th Cir. 2006).
9th Circuit holds that departures have been replaced by requirement to impose reasonable sentence. (120) Taking sides in an issue that divides the circuits, the Ninth Circuit held that the guidelines scheme of departures has been replaced by the requirement under Booker that judges impose a “reasonable” sentence. The court explained that the judge’s determination of a reasonable sentence under Booker will necessarily take into account the departure factors outlined in § 5K of the guidelines. Thus, in reviewing sentences outside the guideline range, the Ninth Circuit will conduct “unitary review for reasonableness,” even if the district court stated that it was departing under the guidelines. U.S. v. Mohamed, 459 F.3d 979 (9th Cir. 2006).
9th Circuit rules that district court need not explain why it selected one sentence over another. (120) At defendant’s sentencing for illegal reentry after deportation, the district court considered the factors outlined in 18 U.S.C. § 3553(a) and imposed a sentence of 36 months, which was within the guidelines range. Defendant argued that because the district court did not explain why it was imposing a sentence of 36 months instead of some other sentence, it improperly treated the guidelines sentence as the presumptive sentence. The Ninth Circuit rejected this contention and held that the sentence was reasonable. U.S. v. Maciel-Vasquez, 458 F.3d 994 (9th Cir. 2006).
9th Circuit says enhancement for stolen firearm does not violate equal protection. (120) The sentencing guideline for possession of a firearm by a convicted felon, § 2K2.1(b)(4), requires a two-level enhancement if the firearm was stolen. The guideline specifically states that the defendant need not know the gun was stolen. By contrast, the guideline for illegal possession of explosives provides for a two-level increase only if the defendant knew or had reason to believe the explosives were stolen. The Ninth Circuit held that the disparity of treatment between stolen firearms and stolen explosives did not violate the Equal Protection Clause because the Sentencing Commission could rationally conclude that the ready availability of stolen firearms justified the disparate treatment. U.S. v. Ellsworth, 456 F.3d 1146 (9th Cir. 2006).
9th Circuit finds sentence for firearm possession reasonable. (120) At defendant’s sentencing for possession of a firearm by a convicted felon, the court noted that defendant had earned his high school degree, said that defendant had likely “turned a corner” to a more productive life, and expressed sympathy for the fear of retaliation from gang members that had led defendant to carry a gun. The court nevertheless sentenced defendant within the advisory guideline range because defendant had two loaded firearms and tried to escape from a police officer. The Ninth Circuit found that the sentence was reasonable, noting that the district court had considered the guidelines and the applicable factors under 18 U.S.C. § 3553(a). U.S. v. Clark, 452 F.3d 1082 (9th Cir. 2006).
9th Circuit vacates sentence based on “preserved nonconstitutional” Booker error. (120) Defendant was sentenced prior to Booker under the mandatory guidelines regime. At sentencing, the district court enhanced defendant’s offense level by 16 levels based on his prior convictions, but did not increase defendant’s sentence based on any other facts that had not been admitted by the defendant or found by the jury. The court sentenced defendant in the middle of the guideline range. After finding that defendant had preserved his claim that the district court committed nonconstitutional error by sentencing him under the then-mandatory guidelines, the Ninth Circuit held that the government had not pointed to any evidence showing that the error was harmless. On that basis, the court vacated defendant’s sentence. U.S. v. Beng-Salazar, 452 F.3d 1088 (9th Cir. 2006).
9th Circuit holds that constitutional objection to sentence preserves nonconstitutional Booker claim. (120) At defendant’s pre-Booker sentencing for illegal reentry after deportation, he argued that the district court’s use of his prior conviction to enhance his offense level and calculate his criminal history category violated the Sixth Amendment. The district court rejected these challenges and sentenced defendant under the then-mandatory guidelines. In imposing sentence, however, the district court did not rely on any facts (other than defendant’s prior convictions) that had not been admitted by the defendant or found by the jury beyond a reasonable doubt. On appeal, the Ninth Circuit held that defendant’s Sixth Amendment objections to the use of his prior convictions were sufficient to preserve his nonconstitutional claim that the district court erred in sentencing him under the then-mandatory guidelines. U.S. v. Beng-Salazar, 452 F.3d 1088 (9th Cir. 2006).
9th Circuit says illegal re-entry statute is constitutional because Almendarez-Torres remains valid. (120) Defendant argued that 8 U.S.C. § 1326 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it permits a judge to increase the statutory maximum sentence from two years to ten or twenty years based on facts that were not admitted by the defendant or found by a jury beyond a reasonable doubt. The Ninth Circuit rejected the argument, holding that it was foreclosed by U.S. v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005), which affirmed the continued validity of Almendarez-Torres v. U.S., 523 U.S. 224 (1998). The court noted that U.S. v. Lopez-Torres, 443 F.3d 1182, 1185 (9th Cir. 2006) had also rejected the argument that subsequent cases have undermined Almendarez-Torres’ holding. U.S. v. Beng-Salazar, 452 F.3d 1088 (9th Cir. 2006).
9th Circuit says Almendarez-Torres is not limited to cases where defendant admits the prior conviction. (120) In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that “subsection [(b) of 8 U.S.C. § 1326] is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution requires the government to charge the factor that it mentions, an earlier conviction, in the indictment.” 523 U.S. at 226-27. Nevertheless, the defendant argued that recent decisions of the Supreme Court in Shepard v. U.S., 544 U.S. 13 (2005), and Dretke v. Haley, 541 U.S. 386 (2004), limit Almendarez-Torres’s holding to cases where a defendant has admitted his prior convictions during a guilty plea. The Ninth Circuit rejected the argument, holding that Almendarez-Torres permits a judge to find facts about prior convictions that increase the maximum sentence, even when the defendant does not admit the prior convictions. U.S. v. Beng-Salazar, 452 F.3d 1088 (9th Cir. 2006).
9th Circuit finds that district court’s consideration of higher sentence does not defeat Ameline remand. (120) In U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the court held that to obtain a remand to allow the district court to consider imposing a lower sentence after Booker, a defendant must demonstrate a reasonable probability that the district court would have imposed a lower sentence if it had known that the guidelines were advisory. At defendant’s sentencing, the district court imposed the minimum guidelines sentence but stated that it had considered giving a higher sentence. The Ninth Circuit rejected the government’s argument that the district court’s statement showed that it would not give defendant a lower sentence if he received an Ameline remand. Accordingly, it granted defendant a limited Ameline remand. U.S. v. Thomas, 447 F.3d 1191 (9th Cir. 2006).
9th Circuit finds no plain error in judge’s participation in “sentencing council.” (110) In the District of Oregon, the district judges hold a “sentencing council” to discuss sentences to be imposed on individual defendants. At defendant’s sentencing, the court mentioned that he had discussed defendant’s sentencing at the council. Defendant did not object to the court’s participation in the sentencing council. The Ninth Circuit held that a judge’s discussion of defendant’s sentence at a sentencing council did not rise to the level of plain error. U.S. v. Brigham, 447 F.3d 665 (9th Cir. 2006).
9th Circuit holds that Booker does not require severance of drug penalty provisions. (120) Defendant argued that the Supreme Court’s decision in Booker held that whenever a sentencing provision could be construed to violate the Sixth Amendment, it should be severed from the remainder of the statute. On this basis, defendant argued that 21 U.S.C. § 841(b), which sets the sentence for drug offenses, should be severed because it could be construed to require the court, not the jury, to find facts that result in an increase in the statutory maximum sentence. The Ninth Circuit rejected this argument, and held that because § 841(b) could be construed to be constitutional, Booker did not require its severance. U.S. v. Ching Tang Lo, 447 F.3d 1212 (9th Cir. 2006).
9th Circuit says disparity caused by lack of fast-track program does not make illegal-reentry sentences unreasonable. (120) Defendants were convicted in the District of Montana of illegal reentry after deportation, in violation of 8 U.S.C. §1326. On appeal, they argued that their sentences were unreasonable under Booker because they would have been eligible for a shorter “fast-track” sentence in a district that offers fast-track dispositions to illegal-reentry defendants who are willing to plead guilty and waive their right to appeal. The Ninth Circuit held that in light of Congress’ express authorization of lesser sentences for fast-track defendants, the disparity between sentences in districts with fast-track programs and those without such programs was not unreasonable. The court also found that the disparity did not violate the Equal Protection Clause. U.S. v. Marcial-Santiago, 447 F.3d 715 (9th Cir. 2006).
9th Circuit says that family ties may warrant non-guidelines sentence even if they do not support departure. (120) Under § 5H1.6, family ties and responsibilities are not ordinarily relevant in determining whether a departure is warranted. The district court departed downward in part because defendant was the sole parent of her child and had an unusually strong relationship with the child. The Ninth Circuit upheld the departure, but noted that even if the court erred in departing, a court may after Booker now consider family ties and responsibilities as part of the “history and characteristics” of the defendant under 18 U.S.C. § 3553(a)(1). Balancing that factor against the other factors under § 3553(a), the court held that the defendant’s sentence was reasonable. U.S. v. Menyweather, 447 F.3d 625 (9th Cir. 2005), implied overruling recognized by U.S. v. Munoz-Camarena, 621 F.3d 967 (9th Cir. 2010).
9th Circuit says that revocation of supervised release does not violate Booker. (120) Defendant argued that the revocation of his supervised release term and imposition of a new term of imprisonment violated the Supreme Court’s ruling in U.S. v. Booker, 543 U.S. 220 (2005), that the Sentencing Guidelines were unconstitutional to the extent that they were mandatory. The Ninth Circuit held that because the guidelines applicable to supervised release violations were always advisory, a sentence imposed under them cannot violate Booker. U.S. v. Huerta-Pimental, 445 F.3d 1220 (9th Cir. 2006).
9th Circuit holds that it has jurisdiction to review sentence within guidelines range. (120) Prior to the Supreme Court’s decision in Booker, the Ninth Circuit had held that it did not have jurisdiction to review a sentence that fell within the range provided by the Sentencing Guidelines. The Ninth Circuit found that this rule “would not make sense” now that the guidelines are advisory and held that it could review for reasonableness a sentence within the Sentencing Guidelines range. U.S. v. Plouffe, 436, F.3d 1062 (9th Cir. 2006), amended, 445 F.3d 1126 (9th Cir. 2006).
9th Circuit holds that supervised release does not violate Apprendi. (120) Under 18 U.S.C. § 3583, a district court may impose a term of supervised release for any felony (and must impose supervised release when required by statute). The Ninth Circuit held that § 3583 does not require proof of any fact beyond the fact of the defendant’s conviction on the underlying offense and thus that supervised release does not amount to punishment beyond the punishment authorized by the offense of conviction. For that reason, the court held that imposition of a term of supervised release does not violate the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), that a court may not increase a defendant’s statutory maximum sentence based on a fact not found by a jury. U.S. v. Huerta-Pimental, 445 F.3d 1220 (9th Cir. 2006).
9th Circuit says that sentences for offenses without a guideline are reviewed for “reasonableness.” (120) Under 18 U.S.C. § 3742(a), a sentence for an offense for which there is no Sentencing Guideline will be reversed only if it is “plainly unreasonable.” The Ninth Circuit held that after Booker, the applicable standard for all sentences, including sentences for offenses for which there is no guideline, is “reasonableness.” Accordingly, although the sentencing range for a violation of supervised release is set by policy statements, not guidelines, the court reviewed a sentence imposed upon revocation of supervised release for “reasonableness.” U.S. v. Miqbel, 444 F.3d 1173 (9th Cir. 2006).
9th Circuit says guidelines have no greater weight than other sentencing factors. (120) At defendant’s sentencing, the district court placed the burden on defendant to justify a sentence outside of the range generated by the Sentencing Guidelines calculation. The Ninth Circuit held that the district court erred in treating the guidelines sentence as the presumptive sentence. Instead, the court held, the guideline range is only the “starting point” for determining the sentence and should be given the same weight as the other factors set forth in 18 U.S.C. § 3553(a). The court stated that it was not deciding whether a reviewing court should treat a sentence within the guideline range as presumptively reasonable. U.S. v. Zavala, 443 F.3d 1165 (9th Cir. 2006), vacated, U.S. v. Carty, 520 F.3d 984 (9th Cir. 2008).
9th Circuit finds 15-year sentence for child porn offense reasonable. (120) Defendant was found guilty of possession of images of minors engaged in sexually explicit conduct. At sentencing, the district court found that defendant had a sentencing range under the guidelines of 151 to 188 months. The district court noted that defendant had sexually abused his own granddaughter, created child pornography using his granddaughter, accused his son of the sexual abuse he committed, failed to show any remorse, and collected thousands of images of minors engaged in sexually explicit conduct. A psychiatric evaluation found that defendant continued to present a risk to the community. On the basis of these factors, the district court imposed a sentence of 180 months, the statutory maximum. The Ninth Circuit held that this sentence was not unreasonable. U.S. v. Williamson, 439 F.3d 1125 (9th Cir. 2006).
9th Circuit finds sentence above guideline range was reasonable. (120) Defendant was convicted of assault resulting in serious bodily injury based on an incident in which he severely kicked and beat his girlfriend. Defendant’s sentencing range under the guidelines was 27-33 months. At sentencing, the district court imposed a 48-month sentence based on the defendant’s extensive criminal record, the likelihood that defendant would offend again, defendant’s capacity to commit brutal and degrading acts, and the substantial injury he inflicted on his girlfriend with his heavy boots. The Ninth Circuit found that the district court had properly considered the appropriate factors under 18 U.S.C. § 3553(a) and concluded that the sentence was reasonable. U.S. v. Bad Marriage, 439 F.3d 534 (9th Cir. 2006).
9th Circuit says remand to sentence “within appropriate range” did not require sentence within range calculated at first sentencing. (120) At defendant’s sentencing for assault causing serious bodily injury, the district court found that defendant’s criminal history score underrepresented his prior criminal history and departed upward. The Ninth Circuit vacated, finding that the upward departure was not justified by the facts and remanded for a sentence “within the appropriate range.” On remand, after U.S. v. Booker, 125 S.Ct. 738 (2005), rendered the guidelines advisory, the district court analyzed the applicable factors under 18 U.S.C. § 3553 and imposed a higher sentence that it had originally imposed. In defendant’s second appeal, the Ninth Circuit held that its prior mandate did not require the district court to sentence the defendant within the guideline range as the court calculated it at defendant’s initial sentencing and that, in any event, Booker was intervening controlling authority that excused the district court from following the law of the case. U.S. v. Bad Marriage, 439 F.3d 534 (9th Cir. 2006).
9th Circuit finds 15-year sentence for child porn offense reasonable. (120) Defendant was found guilty of possession of images of minors engaged in sexually explicit conduct. At sentencing, the district court found that defendant had a sentencing range under the guidelines of 151 to 188 months. The district court noted that defendant had sexually abused his own granddaughter, created child pornography using his granddaughter, accused his son of the sexual abuse he committed, failed to show any remorse, and collected thousands of images of minors engaged in sexually explicit conduct. A psychiatric evaluation found that defendant continued to present a risk to the community. On the basis of these factors, the district court imposed a sentence of 180 months, the statutory maximum. The Ninth Circuit held that this sentence was not unreasonable. U.S. v. Williamson, 439 F.3d 1125 (9th Cir. 2006).
9th Circuit upholds pre-Booker non-guidelines alternate sentence. (120) At defendant’s sentencing, which occurred before the decision in U.S. v. Booker, 125 S.Ct. 738 (2005), the district court sentenced defendant under the guidelines, but also imposed an alternate sentence to take effect if the guidelines were found unconstitutional. The court did not, however, expressly consider all the factors set forth in 18 U.S.C. § 3553(a) in determining the alternate sentence. The Ninth Circuit held that because the district court had considered many of the § 3553(a) factors in determining defendant’s guideline sentence, the alternate sentence did not violate Booker’s requirement that the court consider those factors in imposing sentence. U.S. v. Sylvester Norman Knows His Gun, 438 F.3d 913 (9th Cir. 2006).
9th Circuit vacates sentence imposed under Blakely. (120) Relying on the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), the district court held that it could impose a sentence under the guidelines based only on the facts found by the jury. Applying that reasoning, the court sentenced defendant to 12 months. The court stated that if it could calculate defendant’s sentence based on facts that it found, it would have sentenced defendant to 46 months. On the government’s appeal after the Supreme Court decided U.S. v. Booker, 125 S.Ct. 738 (2005), the Ninth Circuit vacated defendant’s sentence and remanded for resentencing. U.S. v. Hagege, 437 F.3d 943 (9th Cir. 2006).
9th Circuit says that disparity between co-defendants’ sentences does not make sentence unreasonable. (120) Defendant plead guilty to assault resulting in serious bodily harm and was sentenced to 71 months, a sentence at the high end of the advisory guidelines range. A co-defendant received a 37-month sentence. The Ninth Circuit held that the 71-month sentence was reasonable, and that it was not rendered unreasonable by the fact that it was nearly twice as long as the co-defendant’s sentence. U.S. v. Plouffe, 436, F.3d 1062 (9th Cir. 2006), amended, 445 F.3d 1126 (9th Cir. 2006).
9th Circuit announces that guidelines sentence is “presumptively reasonable.” (120) In the course of determining whether the district court had properly calculated defendant’s sentencing level, the Ninth Circuit noted that although the guidelines are advisory after U.S. v. Booker, 543 U.S. 220 (2005), “a sentence suggested by the guidelines is presumptively reasonable.” U.S. v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. 2006).
9th Circuit says guideline error that affects sentence will lead to remand. (120) After reaffirming that after Booker, it would continue to address challenges to the district court’s interpretation and application of the guidelines, the Ninth Circuit made clear that district courts must continue to calculate the guidelines. The court held that if it determines that a sentence resulted from an incorrect application of the guidelines, it will remand to the sentencing court for further proceedings without considering whether the sentence was reasonable. U.S. v. Cantrell, 433 F.3d 1269 (9th Cir. 2006).
9th Circuit clarifies procedure for post-Booker review. (120) The Ninth Circuit set out the procedure it will use to review sentences under Booker. First, the court held, it will determine whether the district court correctly calculated the applicable guidelines range. If not, and the error is material, the court will remand. Second, if the district court did not err in applying the guidelines, the court will consider the overall reasonableness of the sentence in light of the factors set forth in 18 U.S.C. § 3553(a). U.S. v. Cantrell, 433 F.3d 1269 (9th Cir. 2006).
9th Circuit declines to grant limited remand when parties stipulated to sentence. (120) Defendant pleaded guilty pursuant to a plea agreement that stipulated that he would receive 120 months, the statutory maximum. On appeal, he sought a limited remand pursuant to the procedure announced in U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), under which a district court may resentence a defendant if the court finds that it would have imposed a different sentence if the court knew that the guidelines were advisory. The Ninth Circuit held that when a defendant is sentenced pursuant to a plea agreement that included a stipulation to a specific sentence, remand is not required under Ameline. U.S. v. Pacheco-Navarette, 432 F.3d 967 (9th Cir. 2005).
9th Circuit grants limited remand and declines to rule on departure issue. (120) At defendant’s sentencing on his conviction for theft of government funds and Social Security fraud, the district court adjusted defendant’s offense level based on the court’s determination of the amount of loss caused by defendant’s offense. Following the procedure announced in U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the Ninth Circuit granted a limited remand to allow the district court to determine whether the district court would have imposed a materially different sentence if it had known that the Sentencing Guidelines were advisory. The majority declined to reach the merits of defendant’s sentence, but one judge dissented, arguing that the district court erred in concluding that it lacked authority to depart based on diminished capacity. U.S. v. Schneider, 429 F.3d 888 (9th Cir. 2005).
9th Circuit finds no error in sentence based on quantity of drugs admitted by defendant. (120) Defendant and his accomplices engaged in negotiations to sell five pounds of methamphetamine to undercover officers, but never consummated the sale. He was convicted of conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a). At sentencing, he stipulated that his offense involved five pounds of methamphetamine. The Ninth Circuit held that because defendant admitted the quantity of meth involved in his offense, use of that quantity to set his offense level did not violate the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Labrada-Bustamante, 428 F.3d 1252 (9th Cir. 2005).
9th Circuit holds that mandatory minimums based on prior convictions do not violate Constitution. (120) When a defendant convicted of certain drug offenses under 21 U.S.C. § 841(a) has prior drug convictions, and the government files an information alleging those convictions, the defendant is subject to a mandatory minimum sentence. The Ninth Circuit held that these mandatory sentences do not violate the separation of powers or the non-delegation doctrine by giving the executive branch authority over sentencing. The court also found that the mandatory minimum sentencing scheme did not violate the Due Process Clause by vesting discretion in the Attorney General, instead of the court. U.S. v. Jensen, 425 F.3d 698 (9th Cir. 2005).
9th Circuit amends opinion to reiterate that appeal waiver bars Booker claim. (120) In its initial opinion on defendant’s appeal, the Ninth Circuit summarily noted that defendant waived his appellate rights and declined to grant him a limited remand to argue for a lower sentence pursuant to U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), and U.S. v. Booker, 543 U.S. 220 (2005). In an amended opinion, the court reiterated that holding, but added that “a favorable change in the law does not entitle a defendant to renege on a knowing and voluntary guilty plea.” U.S. v. Cortez-Arias, 425 F.3d 547 (9th Cir. 2005).
9th Circuit holds that Apprendi and Booker do not apply to mandatory minimum sentences. (120) Defendant pleaded guilty to possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c), based on an incident in which he drunkenly fired a shotgun while selling 12 grams of marijuana to an undercover agent. Section 924(c) requires a court to impose a minimum 10-year sentence if a defendant discharges a firearm while committing the offense. In Harris v. U.S., 536 U.S. 545 (2002), the Court held that a district court’s imposition of a mandatory minimum sentence required by § 924(c) does not violate the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires any fact, other than the fact of a prior conviction, that increases the defendant’s statutory maximum sentence to be admitted by the defendant or proved to a jury by a reasonable doubt. The Ninth Circuit held that Harris had not been overruled by U.S. v. Booker, 543 U.S. 220 (2005), and therefore that a court could impose a mandatory minimum sentence based on facts not admitted by the defendant or found by a jury. U.S. v. Dare, 425 F.3d 634 (9th Cir. 2005).
9th Circuit says pre-Booker departure based on criminal history violated Apprendi. (120) Under § 4A1.3, a district court may depart upward if the defendant’s guideline range inadequately represented the seriousness of defendant’s prior criminal conduct and the likelihood of recidivism. The Ninth Circuit held that upward departures under § 4A1.3 involve facts beyond the fact of a prior conviction and therefore that under the mandatory guidelines regime in effect before U.S. v. Booker, 543 U.S. 220 (2005), a departure based on the defendant’s prior criminal history violated the rule announced in Apprendi v. New Jersey, 530 U.S. 4667 (2000), which requires that any fact, other than the fact of a prior conviction, that increases a defendant’s sentence must be admitted by the defendant or proved beyond a reasonable doubt to the jury. U.S. v. Kortgaard, 425 F.3d 602 (9th Cir. 2005).
9th Circuit says increasing sentence for lack of remorse in allocution did not violate First Amendment. (120) At defendant’s sentencing, the district court announced that it planned to sentence defendant at the low end of the guideline range. Defendant then gave an allocution in which he denied committing the offense, challenged the jurisdiction of the district court, and demanded to be set free. After hearing defendant’s speech, the court stated that because defendant showed no remorse it was sentencing him to the high end of the guideline range. The Ninth Circuit rejected defendant’s contention that the district court had penalized defendant for exercising his First Amendment rights and instead held that the court properly decided on a higher sentence within the range based on defendant’s lack of remorse. U.S. v. Smith, 424 F.3d 992 (9th Cir. 2005).
9th Circuit holds that Booker does not apply retroactively to final decisions. (120) The Ninth Circuit held that the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005), which found that the mandatory sentences required by the federal Sentencing Guidelines violated the Sixth Amendment, did not apply retroactively to convictions that had become final before the date that Booker was decided. U.S. v. Cruz, 423 F.3d 1119 (9th Cir. 2005).
9th Circuit recalls mandate to give defendant benefit of Booker when judge expressed doubt about sentence. (120) In the Ninth Circuit, the court may not recall its mandate absent “extraordinary circumstances.” Here, in a brief per curiam order, the Ninth Circuit recalled its mandate, vacated the defendant’s sentence, and remanded for resentencing to allow the defendant to seek a new sentence under the post-Booker advisory guidelines. The extraordinary circumstances were (1) the sentencing judge expressed explicit reservations on the record about the sentence required under the guidelines, and (2) the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), was rendered before the mandate issued. U.S. v. Crawford, 422 F.3d 1145 (9th Cir. 2005).
9th Circuit says retirement of sentencing judge requires sentence to be vacated. (120) In U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the court adopted a “limited remand” procedure for cases in which the defendant was sentenced under the mandatory guidelines scheme. Under that approach, the court remands to the district court to determine whether the court would have imposed the same sentence under an advisory guidelines scheme. Here, the Ninth Circuit held that when the original sentencing judge is not available to conduct a limited remand, the original sentence must be vacated and the case remanded for a full sentencing hearing. U.S. v. Sanders, 421 F.3d 1044 (9th Cir. 2005).
9th Circuit holds that Booker does not justify recalling court of appeals’ mandate. (120) Defendant’s appeal became final before the Supreme Court issued its decision in U.S. v. Booker, 543 U.S. 220 (2005). After Booker was decided, defendant filed a motion in the court of appeals to recall the mandate and remand for resentencing in light of Booker. The Ninth Circuit held that the decision in Booker did not constitute the kind of “extraordinary circumstances” necessary to support recalling the court’s mandate. U.S. v. King, 419 F.3d 1035 (9th Cir. 2005).
9th Circuit says defendant did not waive his right to have jury decide sentencing fact. (120) The indictment charging defendant with smuggling aliens alleged that defendant placed lives in danger by committing the offense. Defense counsel objected to the inclusion of this language because it was relevant only to sentencing, and was not an element of the offense. The court agreed and held that evidence as to the injuries suffered by the aliens should be presented only at sentencing. Defendant was convicted, and at sentencing the court found that he had caused harm to the smuggled aliens and enhanced his sentence on that basis. After trial, the Supreme Court held in U.S. v. Booker, 543 U.S. 220 (2005), that the Sentencing Guidelines violated the Sixth Amendment to the extent that they allowed a court to enhance a defendant’s sentence based on facts not found by the jury. The government argued that defendant had waived his Sixth Amendment right to have the jury find that he caused injury to the smuggled aliens. However, the Ninth Circuit held that defendant had not waived his Sixth Amendment right to have the jury decide the sentencing factor because he not personally agreed to forego this proof. U.S. v. Gonzalez-Flores, 418 F.3d 1093 (9th Cir. 2005).
9th Circuit finds no Blakely error when sentence after increase was in range for sentence without increase. (120) At defendant’s sentencing on drug charges, the court applied a two-level enhancement under § 2D1.1 because defendant possessed a firearm during the offense, even though that fact had not been found by the jury. The court sentenced defendant to 262 months. Defendant’s sentencing range without the enhancement was 210-262 months. The Ninth Circuit found that defendant’s sentence did not violate the rule announced in Blakely v. Washington, 124 S.Ct. 2531 (2004), because defendant could have received the 262-month sentence without the enhancement for possessing a firearm. U.S. v. Mayfield, 418 F.3d 1017 (9th Cir. 2004).
9th Circuit finds Booker remand unnecessary when court imposed discretionary consecutive sentence. (120) Under § 5G1.3 (c), a district court has discretion to impose a consecutive sentence if it finds such a sentence appropriate after considering the factors set forth in the guideline. After upholding a district court’s decision to impose consecutive sentences, the Ninth Circuit declined to remand to allow the court to consider whether consecutive sentences were appropriate in light of U.S. v. Booker, 543 U.S. 220 (2005). The court held that because the court had discretion in deciding whether to impose a consecutive sentence, there was no reason to remand to allow the court to exercise discretion under Booker. U.S. v. Dowd, 417 F.3d 1080 (9th Cir. 2005).
9th Circuit finds no Booker violation where jury must have found fact that supported enhancement. (120) Defendant was convicted of violating 18 U.S.C. § 2261(a)(2), which makes it a crime to force an intimate partner to travel in interstate commerce and in the course of that conduct commit a crime of violence on the partner. The indictment charged that while forcing his companion to travel in interstate commerce, he sexually assaulted her. Although the jury was not required to find that defendant sexually assaulted the woman, it was required to find that defendant committed a “crime of violence,” and the sexual assault was the only crime of violence on which the jury heard testimony. Defendant’s sentence under the Sentencing Guidelines was enhanced based on his commission of the sexual assault. The Ninth Circuit held that the jury must have found that defendant committed a sexual assault and therefore that his Sixth Amendment rights under U.S. v. Booker, 543 U.S. 220 (2005), had not been violated by his enhanced sentence. U.S. v. Dowd, 417 F.3d 1080 (9th Cir. 2005).
9th Circuit says career offender predicate offenses need not be proved to a jury beyond a reasonable doubt. (120) Defendant, convicted of a crime of violence, had two prior convictions for crimes of violence and was subject to sentencing as a career offender. He argued that under U.S. v. Booker, 543 U.S. 220 (2005), the government must prove to a jury beyond a reasonable doubt that his prior convictions should be classified as “crimes of violence” as that term is defined in § 4B1.1. The Ninth Circuit held that “the categorization of a prior conviction as a ‘violent felony’ or a ‘crime of violence’ is a legal question, not a factual question” that must be alleged in the indictment and proved to a jury beyond a reasonable doubt. U.S. v. Brown, 417 F.3d 1077 (9th Cir. 2005).
9th Circuit holds that defendant’s admission to facts showing brandishing of firearm eliminates Booker issue. (120) As part of an agreement to plead guilty to bank robbery and using a firearm during a crime of violence, defendant admitted that during the robbery he held a rifle in plain view and laid it on the counter when demanding money. Based on that admission, the district court found that he “brandished” the firearm within the meaning of 18 U.S.C. § 924(c) and imposed the mandatory seven-year sentence. On appeal, defendant claimed that the Supreme Court’s recent decisions in Blakely v. Washington, 124 S.Ct. 2531 (2004), and U.S. v. Booker, 543 U.S. 220 (2005), undermined prior decisions holding that facts triggering mandatory minimum sentences need not be proved to a jury beyond a reasonable doubt. The Ninth Circuit held that because defendant admitted the facts that supported the district court’s brandishing finding, he could not raise a Sixth Amendment issue on appeal. U.S. v. Beaudion, 416 F.3d 965 (9th Cir. 2005).
9th Circuit says failure to apply Blakely to Washington defendant did not violate due process. (120) Defendant was convicted in Washington state court, and he was sentenced under Washington’s Sentencing Guidelines based on facts found by the judge. Because his conviction became final before the Supreme Court invalidated the Washington guidelines in Blakely v. Washington, 124 S.Ct. 2531 (2004), he was not entitled to have his sentence vacated under Blakely. In federal habeas proceedings, he claimed that failing to apply Blakely to his case denied him a forum to challenge his sentence and violated due process. The Ninth Circuit held that because Blakely did not hold that defendant’s conduct was beyond the state’s power to punish, no due process violation occurred. Schardt v. Payne, 414 F.3d 1025 (9th Cir. 2005).
9th Circuit holds that Blakely does not apply retroactively to final Washington sentences. (120) Defendant was convicted in Washington state court of rape of a child, and he was sentenced pursuant to the Washington state Sentencing Guidelines. His conviction became final before the Supreme Court held in Blakely v. Washington, 124 S.Ct. 2531 (2004), that sentences imposed under those guidelines violate the Sixth Amendment because they rest on facts not found by the jury. The Ninth Circuit held that Blakely does not apply retroactively to Washington state sentences that were final before it was decided. Schardt v. Payne, 414 F.3d 1025 (9th Cir. 2005).
9th Circuit remands sentence involving non-constitutional error for post-Booker review. (120) Defendant, convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, claimed that the district court had improperly increased his sentence based on a prior conviction. The Ninth Circuit rejected that argument, but then employed the “limited remand” procedure it adopted in U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005), to allow the district court to determine whether it would have imposed the same sentence under the advisory guidelines scheme adopted in U.S. v. Booker, 543 U.S. 220 (2005). Although footnote 8 of the Ameline decision had reserved the question of whether the limited remand procedure should be used in cases, like defendant’s, in which no constitutional error occurred, the panel did not discuss the issue, but simply ordered a limited remand. U.S. v. Hermoso-Garcia, 413 F.3d 1085 (9th Cir. 2005).
9th Circuit, en banc, requires “limited remand” in Booker plain error cases. (120) Under U.S. v. Booker, 543 U.S. 220 (2005), a Sixth Amendment violation occurs if a defendant’s sentencing range under the Sentencing Guidelines is increased based on facts not found by a jury or admitted by the defendant. Sitting en banc, the Ninth Circuit held that when defendant failed to preserve an objection to the Sixth Amendment violation, the following procedure will be used: first, the court of appeals will determine whether the record is sufficiently clear to determine whether the district court would have imposed the same sentence if it had known that the guidelines would be held to be advisory; if the court of appeals cannot make that determination, it will remand to the district court for the limited purpose of having that court state whether the sentence would have been “materially different” under an advisory guidelines regime; if the district court responds that it would have imposed a different sentence, the district court is to impose a new sentence; if the district court determines that it would have imposed the same sentence under advisory guidelines, the defendant may appeal, and the court of appeals will review for reasonableness. U.S. v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
9th Circuit says that Booker does not undermine appeal waiver. (120) Defendant pleaded guilty pursuant to a plea agreement that waived his right to appeal. He nevertheless appealed, arguing that the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005) rendered his appeal waiver involuntary and unknowing. The Ninth Circuit held that the change in the law effected by Booker does not make a plea prior to that decision involuntary or unknowing. U.S. v. Cardenas, 405 F.3d 1046 (9th Cir. 2005).
9th Circuit remands downward departure for post-Booker review. (120) In sentencing defendant for illegal reentry after deportation, the district court departed downward based on a combination of factors, and particularly defendant’s cultural assimilation. While the government’s appeal was pending, the Supreme Court held in U.S. v. Booker, 125 S.Ct. 738 (2005), that the Sentencing Guidelines were advisory. On the government’s appeal, the Ninth Circuit vacated the sentence and remanded on the ground that the court could not say that the district court would have imposed the same sentence if it had known that the guidelines were not mandatory. U.S. v. Ruiz-Alonso, 397 F.3d 815 (9th Cir. 2005).
9th Circuit finds no Blakely problem where enhancement supported by admitted facts and jury verdict. (120) Defendant was convicted of retaliating against a federal witness, in violation of 18 U.S.C. § 1513(b)(2). At sentencing, the district court enhanced her sentence under § 2J1.2(b)(1) because her offense involved threatened physical injury and an intent to obstruct justice. The Ninth Circuit found that this enhancement did not raise any issue under Blakely v. Washington, 124 S.Ct. 2531 (2004), because it rested on facts admitted by the defendant during her testimony at trial or supported by the jury’s verdict. The court acknowledged, however, that the Supreme Court’s upcoming decisions on the application of Blakely to the guidelines may affect its decision and directed the district court to consider the effect of the Supreme Court’s decisions on remand. U.S. v. Smith, 387 F.3d 826 (9th Cir. 2004).
9th Circuit says Blakely is not retroactive and may not be raised in second or successive petition. (120) Defendant sought to file a second or successive petition under 28 U.S.C. § 2255 to raise his claim that his sentence was unconstitutional under Blakely v. Washington, 124 S.Ct. 2531 (2004). The Ninth Circuit summarily denied defendant’s application because the Supreme Court has not held that Blakely applies retroactively to cases on collateral review. Cook v. U.S., 386 F.3d 949 (9th Cir. 2004).
9th Circuit says Blakely does not require proving prior convictions to jury. (120) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that any fact, other than the fact of a prior conviction, that increases the statutory maximum sentence for a crime must be proved to a jury beyond a reasonable doubt. In Blakely v. Washington, 124 S.Ct. 2531 (2004), the Court applied Apprendi to a sentencing guideline scheme, but expressly preserved the “prior conviction” exception recognized in Apprendi and Almendarez-Torres v. U.S., 523 U.S. 224 (1998). The Ninth Circuit summarily rejected defendant’s claim that Blakely required the government to prove a prior conviction that resulted in an increase in his statutory maximum. U.S. v. Quintana-Quintana, 383 F.3d 1052 (9th Cir. 2004).
9th Circuit says Apprendi does not bar use of drug quantities from dismissed counts as relevant conduct. (120) Defendant was charged with smuggling two loads of marijuana into the U.S. The district court severed trial on the charges arising from the first load from the trial on the charges arising out of the second load, and the trial on the second incident went first. Defendant was convicted of the charges arising out of the second incident, and the government later dismissed the charges arising out of the first incident. At defendant’s sentencing for the conviction arising out of the second smuggling effort, the court refused to include the drugs smuggled in the first incident as relevant conduct to calculate defendant’s offense level. On the government’s appeal, the Ninth Circuit held that Apprendi did not bar the district court from using the marijuana from both loads to calculate defendant’s offense level because the resulting offense level would not be greater than the statutory maximum for the crime of conviction. U.S. v. Plancarte-Alvarez, 366 F.3d 1058 (9th Cir. 2004), amended, U.S. v. Plancarte-Alvarez, 449 F.3d 1059 (9th Cir. 2006).
9th Circuit holds that prior offense must be alleged in order to transform later offense into a felony. (120) Under 8 U.S.C. § 1325, the statute forbidding illegal entry into the U.S., the first offense is punishable by a maximum of six months’ imprisonment. The statute raises the maximum penalty to 24 months for “a subsequent commission” of the offense. Defendant was charged with two counts of violating § 1325, but the second count did not allege that the offense occurred after the first offense. The Ninth Circuit held that the government’s failure to allege the prior offense in the second count limited the maximum penalty for the second offense to six months. Although the court acknowledged that under Apprendi and Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the government generally does not have to allege a prior offense when the prior conviction increases the statutory maximum on the offense of conviction, it held that when the earlier offense transforms the second offense from a misdemeanor to a felony, the prior offense must be alleged and proved. U.S. v. Rodriguez-Gonzalez, 358 F.3d 1156 (9th Cir. 2004).
9th Circuit says guilty plea without admitting drug quantity will not support enhanced sentence. (120) An indictment charged defendant with possession with intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841. Defendant agreed to plead guilty but refused to admit the type and quantity of drug that he possessed. Although the district court initially ruled that defendant had to admit the indictment’s type and quantity allegations to enter a guilty plea, it let defendant enter a plea in which he admitted that the government’s type and quantity allegations were correct but denied that he knew how much cocaine base he had possessed. The Ninth Circuit held that because drug quantity and type are not elements of the offense defined by § 841, but instead are material facts necessary to trigger increased maximum sentences under that statute, defendant’s guilty plea to the charged offense did not encompass the quantity and type allegations necessary to trigger the increased sentences. The court also found that because defendant challenged only his sentence, not his conviction, on remand the district court must impose the maximum sentence authorized for a violation of § 841 without a finding of quantity. U.S. v. Thomas, 355 F.3d 1191 (9th Cir. 2004).
9th Circuit reaffirms that Apprendi does not apply to drug quantity calculations that do not increase maximum sentence. (120) The jury at defendant’s trial convicted him of drug trafficking conspiracy and determined that the conspiracy involved cocaine, but it could not reach a verdict on the amount of cocaine involved in the conspiracy. The maximum sentence for an offense involving any quantity of cocaine is 20 years. 21 U.S.C. § 841(b). At sentencing, the district court determined that the conspiracy involved five kilograms of cocaine and sentenced defendant within the guideline range dictated by that quantity, which was less than 20 years. The Ninth Circuit reaffirmed that Apprendi does not bar a district court from making drug quantity findings at sentencing as long as they do not increase the maximum sentence. U.S. v. Toliver, 351 F.3d 423 (9th Cir. 2003).
9th Circuit holds that graduated penalty provisions of drug statute do not define lesser-included offenses. (120) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), the government must allege in the indictment and prove to the jury the drug types and quantities that trigger increased maximum sentences under the controlled substance statute, 21 U.S.C. § 841(b). The Ninth Circuit held, however, that the drug types and quantities that increase the maximum sentence are not traditional elements of the offense defined by § 841 and therefore do not define lesser-included offenses. U.S. v. Toliver, 351 F.3d 423 (9th Cir. 2003).
9th Circuit finds that use of uncharged cocaine to calculate sentencing range does not violate Apprendi. (120) Defendant was convicted of two counts of possessing five grams of crack cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a) and (b)(1)(B). The maximum sentence for that offense is 40 years. At sentencing, the district court, relying on Apprendi, declined to consider 34 grams of cocaine that defendant admitted to selling even though use of that amount would not increase defendant’s sentence above the statutory maximum. On the government’s appeal, the Ninth Circuit reversed, finding that consideration of the cocaine would not violate Apprendi. U.S. v. Brown, 347 F.3d 1095 (9th Cir. 2003).
9th Circuit finds that any error in sentencing RICO defendants is harmless because RICO maximum for offense involving murder is life. (120) Defendants were convicted of participating in a RICO enterprise that engaged in murder and drug dealing. The district court decided to sentence defendants who did not directly participate in the murders using the guideline for controlled substance offenses. On appeal, defendants alleged that their sentences violated Apprendi because the court, rather than the jury, made the drug quantity determinations to set their sentences. The Ninth Circuit held that any error was harmless because the maximum sentence for a RICO violation that includes murder is life. Because “the district court did not sentence [defendants] to more than life imprisonment,” the court affirmed their sentences. U.S. v. Shryock, 342 F.3d 948 (9th Cir. 2003).
9th Circuit, in deciding if Apprendi error is harmless, will not consider sentencing record even if defendant pleaded guilty. (120) Defendant pleaded guilty to drug conspiracy, but contested the quantity of drugs attributable to him for sentencing purposes. After finding that the district court violated Apprendi by making a quantity finding at sentencing using a preponderance standard, the Ninth Circuit held that the error was not harmless. The court held that in determining whether there was sufficient evidence of drug quantity in the record to render the error harmless, it could not look to the record of defendant’s sentencing hearing and was instead limited to the record of the plea colloquy. U.S. v. Banuelos, 322 F.3d 700 (9th Cir. 2003).
9th Circuit holds Apprendi applies to drug quantity attributable to each conspirator if it increases statutory maximum. (120) Defendant pleaded guilty to drug conspiracy. At his change-of-plea hearing, he conceded that the conspiracy involved at least 1000 kilograms of marijuana, but argued that he was not responsible for the full amount for sentencing purposes. He also argued that under Apprendi, the amount of marijuana attributable to him had to be found beyond a reasonable doubt. Nevertheless, the district court found him responsible for more than 1000 kilos by a preponderance of the evidence. The Ninth Circuit reversed, holding that when a finding concerning the quantity of drugs that a conspirator reasonably foresaw exposes him to a higher statutory maximum that he otherwise would face, that finding must be made by a jury, or, in the case of a guilty plea, by the court beyond a reasonable doubt. U.S. v. Banuelos, 322 F.3d 700 (9th Cir. 2003).
9th Circuit says drug statutes remain constitutional after recent Supreme Court Apprendi interpretation. (120) In U.S. v. Buckland, 289 F.3d 558 (9th Cir. 2001) (en banc), the court held that the drug statutes, 21 U.S.C. §§ 841 and 960, were not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466(2000), because they allocated to the judge the determinations of drug quantity and type. The court reasoned that it is irrelevant whether a given fact is labeled as a “sentencing factor” or “element”; instead, it must be submitted to the jury if it increases the sentence for the offense. Here, the Ninth Circuit held that the Supreme Court’s recent decision in Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406 (2002), which held that mandatory minimum sentences were not subject to Apprendi, does not undercut or require reconsideration of Buckland. U.S. v. Hernandez, 322 F.3d 592 (9th Cir. 2002).
9th Circuit permits restitution under MVRA for uncharged conduct in scheme that began before statute’s enactment. (120) Defendant engaged in a scheme to defraud that began before the 1996 enactment of the Mandatory Victim Restitution Act, 18 U.S.C. § 3663. She was convicted of only four of the 90 acts of fraud in which she engaged because the others were barred by the statute of limitations. The district court nevertheless relied on the MVRA to impose restitution for the losses caused by the entire scheme. The Ninth Circuit upheld the order, finding that the ex post facto clause is not violated when a district court orders restitution under the MVRA for related but uncharged conduct that is part of a mail fraud scheme beginning prior to and continuing past the MVRA’s effective date. U.S. v. Grice, 319 F.3d 1174 (9th Cir. 2003).
9th Circuit finds mandatory minimum sentence violated Apprendi even though it did not exceed statutory maximum for offense proved at trial. (120) Defendant was convicted of drug conspiracy at a bench trial in which he stipulated that he had agreed to transport 18 kilograms of marijuana into the U.S. This subjected him to a maximum sentence of five years under 21 U.S.C. § 841(b)(1)(D). However, at sentencing, the court found by a preponderance of the evidence that defendant was also responsible for marijuana seized from other conspirators. This amount yielded a sentencing range under the Guidelines of 37 to 46 months, but also increased the statutory maximum to 40 years, with a mandatory minimum of five years. The court sentenced defendant to five years. The Ninth Circuit held that the district court’s drug quantity finding violated Apprendi because it exposed the defendant to a 40-year maximum sentence. The fact that the five-year sentence was within the statutory maximum for the drug quantity to which he stipulated at trial did not make the error harmless, because the five-year mandatory minimum sentence resulted from district court’s finding at sentencing, not from the stipulated amount. U.S. v. Velasco-Heredia, 319 F.3d 1080 (9th Cir. 2003).
9th Circuit finds en banc decision interpreting Apprendi is retroactive to defendants sentenced under vacated panel decision. (120) On August 9, 2001, in U.S. v. Buckland, 259 F.3d 1157 (9th Cir.), a panel of the court held that the mandatory minimum term of imprisonment set forth in 21 U.S.C. § 841(b)(1)(A) was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). Relying on the panel decision, a district court sentenced defendant below the mandatory minimum that otherwise would have been required by § 841(b)(1)(A). The government appealed that sentence. On September 14, the Ninth Circuit vacated the panel decision in Buckland and granted en banc review. On January 18, 2002, the en banc court upheld the constitutionality of § 841(b)(1)(A). U.S. v. Buckland, 289 F.3d 558 (9th Cir. 2002). Defendant claimed that the en banc Buckland decision should not apply to him, but the Ninth Circuit vacated defendant’s sentence and held that the en banc decision in Buckland applied retroactively to sentences that were imposed between the original panel decision and the order granting en banc review. U.S. v. Hosoi, 314 F.3d 353 (9th Cir. 2002).
9th Circuit holds use of “relevant conduct” is not unconstitutional under Apprendi (120) The Ninth Circuit rejected a defendant’s contention that Apprendi v. New Jersey, 530 U.S. 466 (2000), renders the relevant conduct guideline, § 1B1.3, unconstitutional because it permits courts to impose a sentence based on drug quantity neither charged in the accusatory pleading nor proven beyond a reasonable doubt. Instead, the court held, application of § 1B1.3 is constitutional because a sentence based in part on relevant conduct cannot exceed the statutory maximum for the underlying offense of conviction. U.S. v. Ochoa, 311 F.3d 1133 (9th Cir. 2002).
9th Circuit holds that Apprendi errors at plea colloquy did not rise to plain error. (120) Defendant pleaded guilty to a drug conspiracy. At the plea colloquy, the court failed to inform him that if the matter went to trial, the government would be required to prove drug quantity beyond a reasonable doubt. The court also failed to establish the drug quantity as part of the factual basis for the plea. Defendant was ultimately sentenced to 262 months’ imprisonment. The Ninth Circuit held that the district court’s failure to advise defendant of the need to prove quantity and to establish quantity as part of the factual basis violated the rule announced in Apprendi v. New Jersey¸ 530 U.S. 466 (2000), but that error did not rise to the level of plain error because the evidence of quantity was overwhelming and uncontroverted. U.S. v. Valensia, 299 F.3d 1068 (9th Cir. 2002).
9th Circuit holds that Apprendi does not bar imposition of supervised release term. (120) Defendant pleaded guilty to importing marijuana, in violation of 21 U.S.C. §§ 952 and 960, and was sentenced to a mandatory term of supervised release. When he violated the terms of his supervised release, the district court revoked it and sentenced him to nine months in prison. The Ninth Circuit held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), does not bar a district court from imposing a term of supervised release. The court held that the mandatory supervised release term is part of the maximum sentence authorized for the offense, not an addition to the sentence for the original offense. U.S. v. Liero, 298 F.3d 1175 (9th Cir. 2002).
9th Circuit reiterates that mandatory minimums do not violate Apprendi (120) In U.S. v. Hitchcock, 263 F.3d 878 (9th Cir. 2001), the court held that because under its now-reversed decision in U.S. v. Buckland, 259 F.3d 1157 (9th Cir. 2001), rev’d, 277 F.3d 1173 (9th Cir. 2002) (en banc), amended & superseded, 289 F.3d 558 (9th Cir. 2002) (en banc), 21 U.S.C. § 841(b)(1)(A) and (B) were “facially unconstitutional” under Apprendi, a court could not sentence a defendant to the mandatory minimum sentence required by those provisions. In an amended opinion, the court reiterated its conclusion in U.S. v. Antonakeas, 255 F.3d 714 (9th Cir. 2001), that “mandatory minimums do not implicate Apprendi.” U.S. v. Hitchcock, 298 F.3d 1021 (9th Cir. 2002).
9th Circuit holds that Armed Career Criminal Act does not violate due process nor equal protection. (120) The Ninth Circuit rejected the contention that the Armed Career Criminal Act (21 U.S.C. § 924(e)) is unconstitutional because, unlike the so-called Three Strikes statute (18 U.S.C. § 3559(c)(1)(A)), it does not contain an “escape clause” that exempts certain prior offenses from being used to enhance the defendant’s sentence on the instant offense. The court found no equal protection or due process violation because a defendant convicted under the ACCA is not similarly situated to a three-strikes defendant and because Congress had a rational basis for treating defendants subject to the two statutes differently. U.S. v. Stokes, 292 F.3d 964 (9th Cir. 2002).
9th Circuit holds Apprendi error is not harmless when drug quantity is neither charged nor proved to a jury. (120) Despite a timely objection, the government did not charge drug quantity in the indictment, nor was drug quantity submitted to the jury. At sentencing, the judge found that the offense involved more than 50 grams of methamphetamine, and sentenced defendant to life in prison. On appeal, the Ninth Circuit held that this violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The court also found that the error was not harmless, reasoning that where drug quantity is neither charged in the indictment nor proved to a jury beyond a reasonable doubt, the government cannot meet its burden of showing harmless error because “there are too many unknowns to be able to say with any confidence, let alone beyond reasonable doubt, that the error was harmless.” The panel rejected the argument that a stipulation could cure the Apprendi error. “A stipulation at sentencing does not address the jury’s finding and cannot be considered under Apprendi.” U.S. v. Jordan, 291 F.3d 1091 (9th Cir. 2002).
9th Circuit holds that Apprendi does not require proof that defendant knew type and amount of drug that he imported. (120) Defendant sought to have the jury at his drug smuggling trial instructed that it must find that he knew the type and amount of drug that he was smuggling. The Ninth Circuit upheld the district court’s refusal to give that instruction. It found that Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires the government to prove drug type and quantity to the jury beyond a reasonable doubt when those facts increase defendant’s maximum sentence, did not change the long-standing rule that the government need not prove that defendant knew the type and amount of controlled substance that he imported or possessed; instead, the government need only prove that defendant knew that he possessed or imported some controlled substance. U.S. v. Carranza, 289 F.3d 634 (9th Cir. 2002).
9th Circuit, en banc, finds that drug statute is constitutional under Apprendi. (120) In U.S. v. Buckland, 259 F.3d 1157 (9th Cir. 2001), a panel of the Ninth Circuit held that 21 U.S.C. §§ 841(b)(1)(A) and (B) violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). Relying on U.S. v. Nordby, 225 F.3d 1053 (9th Cir. 2000), the panel found that because Congress intended the drug quantities that result in enhanced sentences under those sections to be “sentencing factors” determined by the judge at sentencing, those subsections were “facially unconstitutional” under Apprendi. Sitting en banc, the Ninth Circuit overruled Nordby and concluded that regardless of whether the drug quantities that result in enhanced sentences under § 841(b) are labeled “elements” or “sentencing factors,” the statute can be interpreted consistently with Apprendi by requiring that those drug quantities be “charged in the indictment, submitted to the jury, subject to the rules of evidence, and proved beyond a reasonable doubt.” U.S. v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc)
9th Circuit, en banc, says failure to challenge drug quantity and “stacking” sentences overcome Apprendi plain error. (120) Sitting en banc, the Ninth Circuit accepted the government’s argument that the failure to prove drug quantity to the jury, although error under Apprendi v. New Jersey, 530 U.S. 466 (2000), was not plain error. Because defendant conceded that his offense involved at least a drug quantity sufficient to trigger an enhanced statutory maximum, “it appears beyond all doubt that the Apprendi error did not affect the outcome of the proceedings.” The court also agreed that the error did not affect defendant’s substantial rights because under USSG § 5G1.2(d), the district court would have been obligated to achieve defendant’s guideline sentence of at least 324 months by “stacking” consecutive sentences on the multiple counts on which defendant was convicted. U.S. v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc).
9th Circuit says drug importation statute is not unconstitutional under Apprendi. (120) Defendant contended that the drug importation statute, 21 U.S.C. § 960, was facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it required the judge, not the jury, to make drug type and quantity findings that increase a defendant’s maximum sentence. Relying on U.S. v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc), which rejected an identical challenge to 21 U.S.C. § 841, the court held that § 960 was constitutional. U.S. v. Mendoza-Paz, 286 F.3d 1104 (9th Cir. 2002).
9th Circuit holds that Apprendi claim cannot be raised in second or successive habeas petition. (120) In U.S. v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002), the court held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), did not apply retroactively to convictions that had become final on the date Apprendi was decided. Thus, a federal habeas petitioner could not obtain relief based on Apprendi. Here, the Ninth Circuit held that Sanchez-Cervantes required the conclusion that a federal habeas petitioner could not obtain relief based on Apprendi in a second or successive petition. Rees v. Hill, 286 F.3d 1103 (9th Cir. 2002).
9th Circuit vacates life sentence that violated Apprendi. (120) At sentencing, the district court found by a preponderance that defendant Hernandez had been responsible for distributing 1,000 kilograms or more of marijuana and imposed the maximum sentence of life imprisonment. The Ninth Circuit held that this was plain error under Apprendi v. New Jersey, 530 U.S. 466 (2001), because the judge, rather than the jury, found the facts that increased defendant’s maximum sentence under 21 U.S.C. § 841(b)(1)(A). The panel also vacated several sentences on other drug counts that were within the statutory maximum imposed on the same defendant because “the total sentence was a package.” It vacated the same defendant’s sentence on a money laundering conviction that was within the statutory maximum because “the district court calculated the sentence … based on a guideline which considered the quantity of drugs involved in” defendant’s drug case. The court remanded for sentencing on that count “separate from” the drug sentences. U.S. v. Rodriguez, 285 F.3d 759 (9th Cir. 2002).
9th Circuit says overwhelming evidence of drug quantity renders Apprendi error harmless. (120) The jury at defendant’s drug smuggling trial was instructed that it need not find the quantity of drugs charged in the indictment. Those quantities were used to increase defendant’s statutory maximum sentence. Although the Ninth Circuit found that Apprendi error occurred, it found the error harmless in light of the undisputed evidence of drug quantity that the government introduced at trial. U.S. v. Smith, 282 F.3d 758 (9th Cir. 2002).
9th Circuit holds Apprendi is not retroactive to final convictions. (120) Under Teague v. Lane, 489 U.S. 288 (1989), new rules of constitutional law do not apply retroactively in collateral attacks on final convictions unless they fall within two narrow exceptions. The Ninth Circuit held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires proof beyond a reasonable doubt to a jury of facts (other than the fact of a prior conviction) that increase a defendant’s maximum sentence, does not fall within either of the two exceptions to the Teague rule and thus does not apply retroactively in collateral attacks on already final convictions. Judge Hug filed a concurring opinion. U.S. v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002).
9th Circuit holds that Apprendi does not require special verdict for drug quantity finding. (120) Defendant’s indictment alleged that he manufactured more than 500 grams of methamphetamine, and the district court instructed the jury that a conviction required a finding of at least that quantity. The Ninth Circuit held that when the jury found defendant guilty it found beyond a reasonable doubt that he manufactured more than 500 grams of methamphetamine. The court rejected defendant’s contention that his conviction and sentence had to be vacated because Apprendi v. New Jersey, 530 U.S. 466 (2000), required the jury to make a specific drug quantity finding on its verdict form. U.S. v. Valencia-Amezcua, 278 F.3d 901 (9th Cir. 2002).
9th Circuit finds any Apprendi violation was harmless where sentences were concurrent. (120) Defendant contended that the assault statute, 18 U.S.C. § 111(a), was unconstitutional as applied to him under Apprendi v. New Jersey, 530 U.S. 466 (2000), because his statutory maximum sentence for his conviction on that offense had been increased from one to three years based on facts not found by the jury. The Ninth Circuit declined to consider whether Apprendi error had occurred because defendant received a sentence on the assault count that was concurrent to his sentence on his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. For this reason, the court concluded that any error was harmless. U.S. v. Ramos-Godinez, 273 F.3d 820 (9th Cir. 2001).
9th Circuit rejects new effort to apply Apprendi to Almendarez-Torres. (120) In U.S. v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000), the Ninth Circuit held that the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overturn its prior decision in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which held that a district court may increase the defendant’s maximum sentence for the offense of illegal reentry after deportation based on the defendant’s commission of a prior aggravated felony. The court here rejected defendant’s contention that Pacheco-Zepeda was limited to those defendants who failed to challenge the accuracy of their prior aggravated felony conviction. The court also rejected defendant’s contention that it could ignore Almendarez-Torres because Justice Thomas, who provided the fifth vote for the majority in that case, stated in Apprendi that he had erred in Almendarez-Torres. U.S. v. Echavarria-Escobar, 270 F.3d 1265 (9th Cir. 2001).
9th Circuit holds Armed Career Criminal Act is not facially unconstitutional under Apprendi. (120) The Ninth Circuit held that the Armed Career Criminal Act, 18 U.S.C. § 924(e), is not facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it requires the government to prove the prior convictions that are used to enhance the defendant’s sentence only by a preponderance of the evidence. The court reiterated that Apprendi has no application to prior convictions that increase a statutory penalty. U.S. v. Summers, 268 F.3d. 683 (9th Cir. 2001).
9th Circuit holds Apprendi bars use of juvenile conviction as a predicate offense. (120) Defendant pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). At sentencing, the district court found he had three prior convictions for “violent felonies” and imposed a 15-year mandatory sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). One prior felony was a juvenile adjudication for reckless endangerment, robbery, and unauthorized use of a vehicle. The Ninth Circuit held that § 924(e) is not facially unconstitutional because Apprendi v. New Jersey, 530 U.S. 466 (2000) held that prior convictions are exempt from the rule that facts that increase a prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. It concluded, however, that juvenile adjudications do not fall within the prior-conviction exception to Apprendi because the juvenile has no right to a jury trial and proof beyond a reasonable doubt. It also found that the error was not harmless because it increased defendant’s sentence above the otherwise applicable statutory maximum. Because the Guidelines grouping rules increased defendant’s overall offense level based on the length of his sentence on § 922(g) count, the court also vacated his sentence on a drug conspiracy count. Judge Brunetti dissented. U.S. v. Tighe, 266 F.3d 1187 (9th Cir. 2001).
9th Circuit holds Apprendi does not affect loss calculation resulting in fine below statutory maximum. (120) Based on its loss calculation, the district court found that defendant corporation’s fine range straddled the statutory maximum. The district court then sentenced the corporation to a fine below the statutory maximum. The Ninth Circuit rejected defendant’s claim that Apprendi v. New Jersey, 530 U.S. 466 (2000), required the district court to submit the amount of loss for a jury determination, ruling that its prior precedent established that Apprendi does not apply to sentences below the statutory maximum. U.S. v. West Coast Aluminum Heat Treating Co., 265 F.3d 986 (9th Cir. 2001).
9th Circuit again reaffirms that Almendarez-Torres survives Apprendi. (120) The Ninth Circuit again reiterated that the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overturn its prior decision in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which held that a district court may increase the defendant’s maximum sentence for the offense of illegal reentry after deportation based on the defendant’s commission of a prior aggravated felony. See also U.S. v. Reyes-Pacheco, 248 F.3d 942 (9th Cir. 2001); U.S. v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2001). U.S. v. Ochoa-Gaytan, 265 F.3d 837 (9th Cir. 2001).
9th Circuit holds five-year supervised release term under 21 U.S.C. § 841(b)(1)(C) does not violate Apprendi. (120) Under 18 U.S.C. § 3559(a)(3), a defendant convicted of a Class C felony is subject to a maximum of three years of supervised release. Under 21 U.S.C. § 841(b)(1) (C), however, a defendant convicted of drug offenses that fall into the definition of a Class C felony must receive “at least three years” of supervised release. In U.S. v. Garcia, 112 F.3d 395 (9th Cir. 1997), the court held that § 841’s supervised release requirements overrode the limits in § 3559(a)(3). Here, relying on Garcia, the Ninth Circuit held that defendant’s five-year supervised release term imposed under § 841(b)(1)(C) did not violate the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), because it was within the term authorized under that provision for a conviction under 21 U.S.C. § 841(a)(1) without regard to the quantity involved in the offense. U.S. v. Barragan, 263 F.3d 919 (9th Cir. 2001).
9th Circuit holds that 37-month sentence for marijuana does not violate Apprendi. (120) Defendant was convicted of possession with intent to distribute marijuana. At sentencing, the district court found that he was responsible for 97 kilograms of marijuana and sentenced him under 21 U.S.C. § 841(b)(1)(D) to 37 months’ imprisonment. The Ninth Circuit held that § 841(b)(1)(D) does not implicate the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), because it does not provide for an increase in the defendant’s maximum sentence based on the drug quantity involved in his offense. U.S. v. Pinela-Hernandez, 262 F.3d 974 (9th Cir. 2001).
9th Circuit says guidelines have not changed maximum sentences for Apprendi purposes. (120) Defendant argued that the sentencing guidelines adopted pursuant to 18 U.S.C. § 3353 necessarily restrict the district court from selecting a sentence as high as the statutory maximum, and therefore set a new statutory maximum for purposes of applying Apprendi v. New Jersey, 530 U.S. 466 (2000). The Ninth Circuit noted that that this precise argument had been previously rejected in U.S. v. Restrepo, 946 F.2d 654, 657 n.4, which stated that the restrictions imposed by the guidelines do not alter “the maximum penalty available for the crime committed” in any way that the Supreme Court would recognize as important for the constitutionally required standard of proof at sentencing. U.S. v. Jordan, 256 F.3d 922 (9th Cir. 2001).
9th Circuit finds no “plain error” under Apprendi where sentence was in range for unenhanced cocaine offense. (120) The jury found only “a measurable amount of cocaine.” This quantity exposed defendant to a sentence of less than twenty years under 21 U.S.C. § 841(b)(1) (C). However, because the judge found that eight kilograms of cocaine were attributable to defendant, he was actually exposed to a life sentence under § 841(b)(1)(A)(ii). Nevertheless, although the judge’s drug quantity determination violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Ninth Circuit found no “plain error” because the defendant was actually sentenced to only 14 years in custody. See U.S. v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000). U.S. v. Antonakeas, 255 F.3d 714 (9th Cir. 2001).
9th Circuit finds no Apprendi violation where facts were alleged in indictment and jury convicted on all counts. (120) Defendant argued that his sentence of 150 months on each count exceeded the statutory maximum for mail fraud, which is five years. However, the indictment and sentence were based on defendant’s convictions under 18 U.S.C. § 2326(2) as well as the mail fraud statute, § 1341. Section 2326(2) prescribes an enhanced penalty with a statutory maximum of ten years when a person convicted of a fraud offense under § 1341 has victimized ten or more persons over the age of 55. Defendant also argued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). However, the indictment charged the age of 11 telemarketing victims, which ranged from 75-91 years; each testified about her age; and the jury convicted defendant on all counts. There was no plain error. U.S. v. Kentz, 251 F.3d 835 (9th Cir. 2001).
9th Circuit says “stacking” sentences for offense while on bail does not violate Apprendi. (120) Defendant was convicted on 21 counts of telemarketing fraud, in violation of 18 U.S.C. §§ 1341 and 2326, in addition to committing an offense while released on bail, in violation of 18 U.S.C. § 3147. He argued that it violated Apprendi v. New Jersey, 530 U.S. 466 (2000) to sentence him to 160-months (10 months of which were attributable to § 3147) because the issue of whether he committed an offense while in pre-trial release was not charged in the indictment, or determined by the jury beyond a reasonable doubt. The Ninth Circuit found no plain error. Defendant was convicted on 21 counts of fraud, each bearing a 5-year maximum sentence, so the statutory maximum found by the jury was 105 years. Contrary to defendant’s claim that “stacking” sentences is improper, USSG § 5G1.2 (d) requires the sentence to be consecutive to the extent necessary to achieve the total punishment. Moreover, the district court did not plainly err in considering the statutory maximum to be 15 years on the counts which charged defendant under 18 U.S.C. § 2326 with telemarketing which impacts more than ten victims over the age of 55. U.S. v. Kentz, 251 F.3d 835 (9th Cir. 2001).
9th Circuit says Apprendi does not bar increase in sentence under the guidelines. (120) Defendant argued that an enhancement under the sentencing guidelines increased his sentence “beyond the de facto maximum established in the plea agreement,” and therefore violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically, he argued that because he did not stipulate to the facts upon which the increase in his sentence was based, those facts had to be found by a jury beyond a reasonable doubt. The Ninth Circuit rejected the argument, finding no plain error. The court said that the increase in offense level “did not increase the maximum penalty for the crime to which [defendant] plead guilty.” Thus, there was no violation of the Apprendi rule. U.S. v. Johansson, 249 F.3d 848 (9th Cir. 2001).
9th Circuit holds guilty pleas waived Apprendi right to have jury determine amount of meth. (120) Defendants’ plea agreements contained an express waiver of the right to challenge the conviction or sentence. Moreover, they pled guilty to the precise crimes for which they were sentenced: conspiring to manufacture with intent to distribute 50 grams or more of methamphetamine. Each plea agreement stated that the maximum potential sentence was ten years to life. The Ninth Circuit observed that an unconditional guilty plea “constitutes a waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all antecedent constitutional defects.” U.S. v. Reyes-Platero, 224 F.3d 1112, 1114 (9th Cir. 2000). Here, defendants’ 262-month sentences were within the statutory maximum for the crime to which they pleaded guilty — 10 years to life. 21 U.S.C. § 841(b)(1) (A)(viii). There was no Apprendi violation. U.S. v. Silva, 247 F.3d 1051 (9th Cir. 2001).
9th Circuit finds career offender sentence violated Apprendi but was not plain error. (120) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its Ninth Circuit progeny, a sentence cannot exceed the “offense statutory maximum” unless the jury finds, beyond a reasonable doubt, the facts which increase the sentence. Generally the “offense statutory maximum” plays no role in applying the guidelines. But for “career offenders, § 4B1.1 makes the “offense statutory maximum” the determinative factor. Here, the district court attributed 50 pounds of “ice” to defendant at sentencing which increased his maximum sentence from 20 years to life under 21 U.S.C. § 841(b)(1)(A)(viii). This in turn tainted the calculation under the career offender guideline. Nevertheless, the Ninth Circuit found no plain error because defendant admitted at the time of his plea that he was responsible for the 50 pounds of ice. Moreover, his sentence did not exceed the 20-year statutory maximum authorized for conspiracy to possess with intent to distribute a detectable amount of methamphetamine under § 841(b)(1)(C). U.S. v. Saya, 247 F.3d 929 (9th Cir. 2001).
9th Circuit finds use of a firearm increased statutory penalty, so it was an “element” of offense. (120) The state court jury did not convict defendant of using a firearm, but the judge found that he did. This transformed his conviction into a “serious” felony under California Penal Code § 1192.7(c), and increased his maximum sentence under Penal Code § 667(a) by five years for each of his prior convictions, to be served consecutively. In this federal habeas appeal, the Ninth Circuit held that this violated due process. In McMillan v. Pennsylvania, 477 U.S. 79, 84 (1977), the Supreme Court upheld the constitutionality of a mandatory minimum sentence imposed by a judge, where the judge’s finding that the defendant “visibly possessed a firearm” during the events “neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty.” Here, by contrast, the judge’s finding that defendant used a firearm “transforms the offense for which [defendant] was charged and convicted into a different, more serious offense that exposes him to greater and additional punishment.” The error was not harmless and the district court properly granted habeas relief. Dillard v. Roe, 244 F.3d 758 (9th Cir. 2001).
9th Circuit finds no Apprendi error where sentence did not exceed statutory maximum for offense of conviction. (120) Defendant argued that a violation of 18 U.S.C. § 3147 (failure to appear) constitutes a separate criminal offense, rather than a mere sentencing enhancement under guideline § 2J1.7, and that the question of his guilt should therefore have been submitted to a jury and proved beyond a reasonable doubt under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). The Ninth Circuit rejected the argument, because defendant “failed to satisfy the threshold condition of Apprendi that the actual sentence imposed be longer than the maximum sentence for the crime for which defendant has been validly convicted.” Here, defendant received “only 87 months of imprisonment, far less than the 120-month maximum term for his firearm conviction alone.” U.S. v. Ellis, 241 F.3d 1096 (9th Cir. 2001).
9th Circuit says Apprendi did not prohibit sentence which exceeded mandatory minimum by one month. (120) In this second appeal after remand for resentencing, defendant argued that his guideline sentence – which exceeded the ten-year mandatory statutory minimum by one month – required a new trial with new jury instructions because of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Ninth Circuit noted that the question had not been presented to the district court, but ruled that in any event “Apprendi has no application here.” Apprendi dealt with the consideration of facts in sentencing enhancement beyond the statutory maximum. In the instant case the sentence imposed was nine years and eleven months below the statutory maximum.” U.S. v. Garcia-Sanchez, 238 F.3d 1200 (9th Cir. 2001).
9th Circuit reaffirms Apprendi did not overrule Almendarez-Torres in alien cases. (120) In a brief opinion, the Ninth Circuit held that the Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 “preserved the specific holding” of Almendarez-Torres v. U.S., 523 U.S. 224, 226 (1998), that 8 U.S.C. § 1326(b)(2) which increases the penalty for deported aliens who re-enter the United States following conviction of an aggravated felony – “was a mere penalty provision for recidivist behavior and did not define a separate offense.” “The plain language of the Apprendi holding “makes clear that the government was not required to charge the fact of this conviction on the Information and prove its existence to a jury beyond a reasonable doubt.” U.S. v. Fresnares-Torres, 235 F.3d 481 (9th Cir. 2000).
9th Circuit says Apprendi did not overrule Almendarez-Torres regarding priors in alien cases. (120) In Almendariz-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that the enhanced penalties in 8 U.S.C. § 1326(b)(2) for aliens who re-enter the United States after deportation following conviction of an aggravated felony, “simply authorizes a court to increase the sentence for a recidivist . . . [and] does not define a separate crime.” 523 U.S. at 226. Defendant argued that Almendarez-Torres had been overruled by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Ninth Circuit rejected the argument, noting that the Supreme Court in Apprendi chose not to overrule Almendariz-Torres, and unmistakably carved out an exception for “prior convictions” that specifically preserved its holding. The panel acknowledged that the Supreme Court in Apprendi expressed reservations about Almendarez-Torres and noted that if the views of the individual justices and the composition of the court remained the same, “Almendarez-Torres may eventually be overruled.” However, “such speculation does not permit us to ignore controlling Supreme Court authority.” U.S. v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000).
9th Circuit holds Apprendi is not retroactive to cases that became final before June 26, 2000. (120) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (June 26, 2000), a 5-4 majority of the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the proscribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In this habeas case, the Ninth Circuit held that the nonretroactivity principle of Teague v. Lane, 489 U.S. 288 (1989), prevented the petitioner from benefiting from Apprendi’s new rule on collateral review. Under Teague, “a case announces a new rule when it breaks new ground or imposes a new obligation on the states or the federal government [or] if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” The Ninth Circuit held that “Apprendi certainly established a new rule.” None of the exceptions to Teague applied here, because the variance between the information and the jury instructions over the word “premeditation” did not make the trial fundamentally unfair. Therefore, it was unnecessary to decide whether Apprendi made “premeditation” an element of the attempted murder offense, rather than a mere sentencing factor. Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000).
9th Circuit finds Apprendi error harmless where sentence was within statutory maximum. (120) Defendant argued that the judge’s drug quantity finding under the “relevant conduct” section of the guidelines increased the statutory maximum penalty to which he was exposed, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000). In a footnote, the panel found it unnecessary to address the issue because defendant was not prejudiced by any Apprendi error. He was sentenced to 135 months, which was less than the lowest possible statutory maximum applicable for manufacture of methamphetamine: the 20-year maximum under 21 U.S.C. § 841(b)(1)(C) for distribution of an unspecified quantity of methamphetamine. Thus, even if the district court’s finding of drug quantity increased the prescribed maximum, defendant was not prejudiced “because the sentence he received fell well below the statutory maximum for the offense to which he pleaded guilty.” U.S. v. Scheele, 231 F.3d 492 (9th Cir. 2000).
9th Circuit finds no Apprendi error where sentence was below statutory maximum for offense. (120) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Here, defendant argued that the two-level increase in his alien smuggling sentence for creating a substantial risk of death or serious bodily injury violated Apprendi, because the facts on which the increase was based were neither charged nor submitted to the jury. The Ninth Circuit rejected the argument because the two-level increase in § 2L1.1(b)(5) “did not result in a sentence that exceeded the 10-year statutory maximum” for the conviction. There was no Apprendi error. U.S. v. Hernandez-Guardado, 228 F.3d 1017 (9th Cir. 2000).
9th Circuit holds drug quantity finding violated Apprendi but was not plain error. (120) Defendant was convicted of distribution of an unspecified quantity of methamphetamine, with a statutory maximum sentence of 20 years under 21 U.S.C. § 841(b)(1)(C). However at sentencing, the judge found by a preponderance that he distributed 50 grams or more of meth, thereby increasing his statutory maximum sentence to life under § 841(b)(1)(A). This violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), which requires facts which increase the statutory maximum sentence to be submitted to the trier of fact and found beyond a reasonable doubt. In this case, however, the Ninth Circuit found no plain error because defendant was sentenced to 168 months, which was “substantially less than the twenty-year prescribed statutory maximum to which [defendant] was subject under the facts as found by the jury.” Thus, the increase in the maximum penalty had “no effect” on the sentence that defendant actually received and the Apprendi error did not affect his “substantial rights.” U.S. v. Garcia-Guizar, 227 F.3d 1125 (9th Cir. 2000).
9th Circuit says Supreme Court has not made Apprendi retroactive to habeas cases. (120) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the Supreme Court held that, except for prior convictions, any fact that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. The Ninth Circuit assumed that Apprendi establishes a new rule of constitutional law but noted that the Supreme Court did not say that the rule was retroactive to habeas cases under Teague v. Lane, 489 U.S. 288 (1989). See 28 U.S.C. § 2241(b)(2)(A). In any event, the state prisoner could not succeed on any Apprendi claim because he had not exhausted his state remedies on this issue. Under 28 U.S.C. § 2254(b)(1)(A), a state prisoner’s habeas petition “shall not be granted unless it appears the applicant has exhausted the remedies available in the courts of the State.” Scott v. Baldwin, 225 F.3d 1020 (9th Cir. 2000).
9th Circuit says defendants were not punished for exercising right to trial. (120) Defendants were convicted of violating Forest Service regulations after a court trial, and were sentenced to 60 days in custody and a $500 fine. A co-defendant arrested on the same day for the same activity who pleaded guilty on the day of trial was sentenced to only 14 days in custody and no fine. Defendants argued that this demonstrated that they were punished for exercising their right to a trial. The Ninth Circuit disagreed, noting that the district court explained that it imposed heavier sentences on these defendants because they said they would not abide by any restitution order imposed by the court. This recalcitrance was sufficient reason to subject them to greater sentences. U.S. v. Mack, 200 F.3d 653 (9th Cir. 2000).
9th Circuit upholds “three strikes” statute against separation of powers claim. (120) Defendant argued that the “three strikes” statute, 18 U.S.C. § 3559(c), violated the principle of separation of powers because it impermissibly increased the discretionary power of prosecutors while stripping the judiciary of all discretion. The en banc Ninth Circuit rejected the argument, noting that in Chapman v. U.S., 500 U.S. 453, 467 (1991), the Supreme Court stated unequivocally that “Congress has the power to define criminal punishments without giving the courts any sentencing discretion.” See also Mistretta v. U.S., 488 U.S. 361, 364 (1989) (upholding the constitutionality of the federal sentencing guidelines in part because “the scope of judicial discretion with respect to a sentence is subject to Congressional control”). U.S. v. Kaluna, 192 F.3d 1188 (9th Cir. 1999) (en banc).
9th Circuit upholds constitutionality of Mandatory Victim’s Restitution Act. (120) The Mandatory Victim’s Restitution Act of 1996, 18 U.S.C. §§ 3663(A)-3664, makes restitution mandatory, without regard to a defendant’s economic situation, to identifiable victims who have suffered physical injury or pecuniary loss from crimes of violence, crimes against property, and crimes related to tampering with consumer products. In these two consolidated cases, one defendant was ordered to pay restitution for burning down a church and the other for bank robbery. They argued that the requirement of full restitution violated the Eighth Amendment’s proscription against excessive monetary sanctions and that the act resulted in discrimination based on wealth in violation of equal protection. They further argued that the imposition of a restitution obligation enforceable for twenty years after their release from prison constituted cruel and unusual punishment. Finally, they argued that the Seventh Amendment requires a jury trial before imposing a restitution debt obligation that is enforceable as a civil judgment lien. The Ninth Circuit rejected each of these arguments in turn, holding that the act was constitutional both facially and as applied to these defendants. U.S. v. Dubose, 146 F.3d 1141 (9th Cir. 1998).
9th Circuit reverses sentence that penalized defendant for choosing to go to trial. (120) Under a Washington statute in effect when defendant was sentenced, defendants who went to trial could receive a sentence of death or life imprisonment without possibility of parole, while defendants who pled guilty could receive no more than life with the possibility of parole. In Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir. 1989), the Ninth Circuit held, relying on U.S. v. Jackson, 390 U.S. 570 (1968), that this statute was unconstitutional because it penalized a defendant who chose to go to trial. The petitioner in the present case was sentenced to life without parole under the same statute. Despite the state’s attempt to distinguish Robtoy, the Ninth Circuit held that petitioner’s sentence was unconstitutional and ordered defendant to be resentenced. Grisby v. Blodgett, 130 F.3d 365 (9th Cir. 1997).
9th Circuit says “safety valve” requires disclosure of unconvicted conduct despite self-incrimination claim. (120) In a 2-1 opinion, the Ninth Circuit held that 18 U.S.C. § 3553(f) requires a defendant to disclose information concerning conduct of which he has never been convicted in order to qualify for “safety valve” relief from a mandatory minimum sentence. The majority rejected defendant’s argument that this violated his Fifth Amendment right against self-incrimination, agreeing with the Seventh Circuit’s opinion in U.S. v. Arrington, 73 F.3d 144, 149 (7th Cir. 1996), that § 3553(f)(5) does not raise constitutional concern because it does not mete out additional punishment if a defendant decides not to disclose under § 3553(f)(5). The majority found this consistent with the intent of Congress “to remedy an inequity in the guidelines whereby more senior operatives could obtain lighter sentences than less culpable lower level operatives because the former had more information to offer than the latter so could benefit from the Substantial Assistance downward departure under USSG § 5K1.1.” Judge Norris dissented, arguing that despite the Sentencing Commission’s interpretation, the word “offense” in subsection (f)(5) was intended to require disclosure only of convicted conduct. U.S. v. Washman, 128 F.3d 1305 (9th Cir. 1997).
9th Circuit says “intended loss” in fraud guideline is not unconstitutionally vague. (120) Application Note 7 to guideline § 2F1.1 provides that if the “intended loss” can be determined, it should be used if it is greater than the actual loss. Defendant argued that this definition conflicted with the ordinary understanding of the term and therefore was unconstitutionally vague. The Ninth Circuit disagreed, holding that the definition is sufficiently clear. In this case, defendant succeeded in obtaining $1,000 from the First Interstate Bank. He accomplished this by causing two fraudulent checks totaling $3,000 to be deposited into a checking account, from which he intended to withdraw all the money. Therefore the intended loss was $3,000. U.S. v. Gallagher, 99 F.3d 329 (9th Cir. 1996).
9th Circuit says comity prevents modifying sentence to make it concurrent with state. (120) After the federal court imposed a five year sentence, the state court imposed its own five year sentence for offenses arising out of the same conduct, and ordered its sentence to run consecutive to the federal sentence. In a federal habeas petition, defendant argued that the district court should have changed the federal sentence to make it run concurrently with the state sentence because section 5G1.3 of the federal sentencing guidelines expresses a general policy against consecutive sentences. The 9th Circuit declined to grant relief. “Were we to order the district court to modify its sentence, . . . [defendant’s] federal sentence would be placed in direct conflict with the state court sentence.” Therefore, considerations of comity and federalism prevented modifying the federal sentence. U.S. v. Mun, 41 F.3d 409 (9th Cir. 1994).
9th Circuit holds pre-sentence urine testing unreasonable for non-drug crime. (120) Defendant pled guilty to theft from a military base. As part of the pre-sentence process, the district court ordered defendant to submit to urine testing for drug use, stating that any adverse results would not be used against him. In a per curiam opinion, the 9th Circuit granted the defendant’s mandamus petition, and held that since there was no evidence that defendant’s crime of theft bore any correlation to drug usage, it was error to require him to submit to presentence urine testing. Judge Shroeder concurred, but disagreed with the majority’s view that sentencing is an integral part of the probation system and that the “special needs” exception to the probable cause requirement could be satisfied by a non-drug conviction that correlated with drug usage. Portillo v. U.S. District Court, 15 F.3d 819 (9th Cir. 1994).
9th Circuit rejects equal protection challenge based on defendant’s “middle class” status. (120) Defendant argued the district court violated equal protection principles, discriminating against him as a member of the middle class, by imposing a greater sentence on him than on his wealthier co-defendant. The Ninth Circuit found that the sentencing disparity resulted from differing guideline calculations and not because of his middle class status. The court also noted that defendant’s membership in the middle class did not qualify him as a member of a suspect class. U.S. v. Morales, 11 F.3d 915 (9th Cir. 1993).
9th Circuit upholds higher sentence on retrial by a different judge. (120) In North Carolina v. Pearce, 395 U.S. 711, 726 (1969), the court held that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear . . . so that the Constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” However, the 9th Circuit noted that when different courts impose different sentences, there is no presumption of vindictiveness, although “the defendant may still obtain relief if he can show actual vindictiveness upon resentencing.” Here, a different judge imposed a “wholly logical sentence.” The court stated its reasons, including defendant’s breach of trust, on the record. Accordingly, defendant’s assertion of vindictiveness failed. U.S. v. Newman, 6 F.3d 623 (9th Cir. 1993).
9th Circuit finds no equal protection violation in denying custody credit for pretrial home detention. (120) Defendant argued that denying credit for pretrial home detention with electronic monitoring would deny her equal protection of the laws, because people with minimum sentences of not more than six months may serve their term of imprisonment in home confinement. Defendant argued that if they “receive credit” for one day of sentence by serving one day of house arrest, then so should she. Agreeing with the 2nd and 10th Circuits, the 9th Circuit found no equal protection violation, because “presentence residents are not being punished; they are conditionally released to the halfway house to protect the community and assure their presence at trial and sentencing.” Defendant was therefore not similarly situated to post-sentenced prisoners, and denying her credit for her seven-month house arrest did not violate equal protection. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924 (9th Cir. 1993).
9th Circuit finds “greater sting” of obstruction increase at higher offense levels does not violate equal protection. (120) Defendant was convicted of narcotics offenses and the district court increased his offense level under §3C1.1 based on his testimony at trial. The Ninth Circuit sustained the increase, finding that the fact the obstruction increase will have a “greater sting” for defendants at higher offense levels did not constitute disproportionate punishment and was not irrational under the Equal Protection Clause of the Fifth Amendment. It is entirely rational to punish perjury more severely when the underlying crime about which the defendant is trying to lie is more serious. However, the case was remanded because the district court’s finding that defendant’s testimony was “inaccurate” was not a sufficient finding to justify the increase based on perjury. U.S. v. Rubio-Topete, 999 F.2d 1334 (9th Cir. 1993).
9th Circuit upholds basing sentence on culpability at time of sentencing. (120) Defendant argued that guideline sections 4A1.1 and 4A1.2 violated the 5th Amendment’s guarantee of due process by requiring his sentence to be based on his culpability at the time of sentencing, rather than his culpability at the time of the crime. He also contended that this violated his right to equal protection by treating similarly situated prisoners differently, depending on whether the state sentencing occurred before or after the federal sentencing. The 9th Circuit rejected both arguments, noting that in the sentencing context, “an argument based on equal protection essentially duplicates an argument based on due process.” The 9th Circuit found that basing a defendant’s sentence on his culpability at the time of sentencing was rationally related to the government’s legitimate interests in proportional punishment for repeat offenders. U.S. v. Carson, 988 F.2d 80 (9th Cir. 1993).
9th Circuit says sentence was not based on defendant’s refusal to testify against himself. (120) The petitioner in this habeas case argued that the state judge improperly relied on the fact that petitioner had not identified the location of the victim’s body until several weeks into the trial. He argued that use of this information at sentencing punished him for refusing to testify against his own interests in violation of the 5th and 14th Amendment. The 9th Circuit rejected the argument, noting that a criminal defendant is obliged to assist the authorities “[u]nless his silence is protected by the privilege against self incrimination.” Roberts v. U.S., 445 U.S. 552, 558 (1980). Here the petitioner did not invoke the 5th Amendment privilege until he raised it on appeal. The 9th Circuit held that the sentencing court was simply suggesting that petitioner could have made known the location of the body even before he was apprehended by the FBI, in a way that would not have incriminated him. Therefore his sentence was not based on his refusal to testify against his own interests. Dallas v. Arave, 984 F.2d 292 (9th Cir. 1993).
9th Circuit says disparity between guidelines sentence and coconspirators’ “old law” sentence did not violate equal protection. (120) In U.S. v. Ray, 920 F.2d 562 (9th Cir.), modified, 930 F.2d 1368 (9th Cir. 1990), the 9th Circuit permitted the district court to depart downward to equalize the defendant’s guideline sentence with his codefendants’ non-guideline sentences which were imposed during the time the guidelines were held unconstitutional in the Ninth Circuit. The Ninth Circuit permits such “old law/new law” disparity departures, while forbidding disparity departures where all the codefendants are sentenced under the guidelines. Here, the defendant argued that his 10 year guideline sentence violated equal protection because his coconspirators’ 10 and 13 year “old law” sentences were subject to greater good time credits and perhaps parole. In this reissued opinion, the court rejected the merits of the equal protection challenge, finding a district judge is not required to depart in order to equalize a defendant’s sentence with that of a co-defendant not sentenced under the guidelines. The court lacked appellate jurisdiction to consider the discretionary refusal to depart. U.S. v. Kohl, 972 F.2d 294 (9th Cir. 1992).
9th Circuit upholds crack and powder cocaine guidelines against equal protection challenge. (120) The 9th Circuit rejected an equal protection challenge to the sentencing provisions in 21 U.S.C. section 841(b)(1), and the sentencing guidelines, agreeing with U.S. v. Lawrence, 951 F.2d 751, 755 (7th Cir. 1991); U.S. v. House, 939 F.2d 659, 664 (8th Cir. 1991); U.S. v. Avant, 907 F.2d 623, 627 (6th Cir. 1990); U.S. v. Thomas, 900 F.2d 37, 39 (4th Cir. 1990); U.S. v. Cyrus, 890 F.2d 1245, 1248-49 (D.C. Cir. 1989); and U.S. v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988), The court held that the statute and the guidelines were subject only to “rational basis” scrutiny, and found that the distinction between crack and powder cocaine is “neither arbitrary nor irrational.” U.S. v. Harding, 971 F.2d 410 (9th Cir. 1992).
9th Circuit rejects constitutional challenges to minimum life sentence for first degree murder. (120) Defendants argued that their mandatory minimum life sentence for first degree murder under 18 U.S.C. section 1111(b) constituted cruel and unusual punishment, and violated equal protection and due process. The 9th Circuit rejected each of these arguments, relying on Harmelin v. Michigan, 111 S.Ct. 2680 (1991). The court found no right to an individual assessment of the appropriateness of a life sentence, and no violation of the 8th Amendment’s protection against cruel and unusual punishments. With regard to equal protection, the court noted that even though defendants convicted of murder under 21 U.S.C. section 848(e) may receive a sentence of between 20 years and death, the differences between that statute and section 1111(b) provide a rational basis for proscribing different punishments and for allowing sentencing discretion under 848(e). U.S. v. LaFleur, 971 F.2d 200 (9th Cir. 1991).
9th Circuit holds that phrase “sophisticated weaponry” is not vague. (120) Appellants argued that section 2M5.2 violated due process and was vague on its face because nothing in the guideline defined the term “sophisticated” as it applied to weaponry. The 9th Circuit rejected the argument, based on evidence that the only use of the material exported by the appellants was for the production of ballistic missiles. The material was necessary to construct flexible engine nozzles and the State Department had specifically found that it met the “munitions list” criteria. The court said that because “missiles fall within any common sense definition of ‘sophisticated weaponry’ and because the government established that the materials exported here were intended for use as missile components, the guideline is not vague with respect to appellants.” U.S. v. Helmy, 951 F.2d 988 (9th Cir. 1991).
9th Circuit holds that term “prepubescent” was not unconstitutionally vague as applied. (120) Defendant was convicted of interstate transportation of material involving the sexual exploitation of minors in violation of 18 U.S.C. section 2252. Guideline section 2G2.2(b)(1) provides for a two level increase in the base offense level “if the material involved a prepubescent minor or a minor under the age of 12 years.” Here there was uncontested testimony by a postal inspector that one of the children was “under the age of 12, as well as the fact that puberty has obviously not begun, let alone been completed.” There was nothing in the record to indicate that an observer could not tell that puberty had not started, “or that there are in fact conflicting definitions that would have led someone like [defendant] to believe that these children had not reached puberty.” Accordingly, the 9th Circuit found no basis on which to find the guideline unconstitutionally vague as applied. U.S. v. Marquardt, 949 F.2d 283 (9th Cir. 1991).
9th Circuit reiterates that sentencing guidelines are constitutional. (120) Relying on numerous prior cases, the 9th Circuit rejected the defendant’s arguments that the guidelines are unconstitutional because they limit judicial discretion, transfer sentencing power to the prosecutor, and violate the right against self incrimination. U.S. v. Mondello, 927 F.2d 1463 (9th Cir. 1991).
9th Circuit holds that guidelines do not violate the presentment clause or due process. (120) The Sentencing Reform Act provides that the guidelines do not go into effect until Congress has had 6 months to examine them and consider the reports submitted to it. Defendant argued that Congress’s silence during the 6 months’ “examine and consider period” was tantamount to legislative action approving the guidelines, and therefore the guidelines should have been presented to the President. The 9th Circuit rejected the argument, noting that the act “does not purport to allow Congress to alter or invalidate the guidelines by unilateral resolution. “Instead, if Congress desires to alter the proposed guidelines, it must do so by a legislative enactment which would then need to be submitted to the President.” U.S. v. Scampini, 911 F.2d 350 (9th Cir. 1990).
9th Circuit finds guidelines constitutional despite arguments about individual sentencing, probation, and presentment clause. (120) The defendant argued that the guidelines violate due process because they fail to grant the trial judge adequate discretion to individualize sentencing. He also argued that the Commission went beyond its statutory mandate when it decided that straight probation should be available only rarely, and that the guidelines violate the presentment clause of the Constitutional because the guidelines were not presented to the President. The 9th Circuit rejected each of these arguments in turn. U.S. v. Litteral, 910 F.2d 547 (9th Cir. 1990).
9th Circuit rules probation officer’s role in sentencing does not violate separation of powers doctrine. (120) Defendant claimed that under the Sentencing Reform Act, the probation officer acts as an arm of the executive branch, and the probation officer’s influence on sentencing therefore violates the separation of powers doctrine. Relying on Williams v. New York, 337 U.S. 241 (1949), the 9th Circuit found that the probation officer’s role in providing information to the sentencing judge is essential, and the recommendations are no more binding today than in 1949. Further, in preparing the pre-sentence report, the probation officer “is acting as an arm of the court,” as stated in U.S. v. Gonzales, 765 F.2d 1393 (9th Cir. 1985). U.S. v. Belgard, 894 F.2d 1092 (9th Cir. 1990).
9th Circuit holds that career offender provision is not an unlawful delegation of congressional authority to the states. (120) Defendant argued that the career offender provision of the sentencing guidelines involves an unconstitutional sub-delegation of congressional authority to the states because the career offender provision is triggered not only by previous federal drug convictions, but also by state drug convictions, which allows the states to define a felonious drug offense for purposes of federal law. Relying on the Supreme Court’s decision in Mistretta v. U.S., 109 S.Ct. 647 (1989);, the 9th Circuit held that the career offender provision is well within the “intelligible principle” requirement for permissible delegation of legislative power. U.S. v. Sanchez-Lopez, 879 F.2d 541 (9th Cir. 1989).
9th Circuit holds that correction of sentence to add penalty assessment came too late. (120) The oral pronouncement of sentence controls over the written judgment. Thus the trial judge’s inclusion of the mandatory $25 penalty assessment in the written judgment pursuant to 18 U.S.C. § 3013 was “illegal because the sentence as pronounced by the judge in the presence of the defendant did not include it.” U.S. v. Kaufman, 862 F.2d 236 (9th Cir. 1988).
9th Circuit overrules Gubiensio and holds guidelines constitutional. (120) In Mistretta v. U.S., 488 U.S. 361 (989), the Supreme Court upheld the constitutionality of the sentencing guidelines. Thereafter, it vacated the Ninth Circuit’s contrary ruling in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), vacated sub nom. U.S. v. Chavez-Sanchez, 109 S.Ct. 859 (1989). On remand, in a brief order, the Ninth Circuit overruled its earlier opinion and held the guidelines constitutional. Gubiensio-Ortiz v. Kanahele, 871 F.2d 104 (9th Cir. 1989).
10th Circuit upholds use of preponderance standard for distribution enhancement. (120) Defendant was convicted of child pornography charges. He argued that the district court violated his 5th Amendment due process rights and his 6th Amendment right to a jury trial when it imposed a § 2G2.2(b)(3)(F) distribution enhancement based on a preponderance of the evidence. He relied on the line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Tenth Circuit rejected this argument. The Supreme Court has held that Apprendi does not apply to the present advisory-guideline regime. U.S. v. Booker, 543 U.S. 220 (2005). Although courts have left open the possibility that due process might require proof by clear and convincing evidence for an enhancement that increases a sentence by an extraordinary amount, there was no such increase here. U.S. v. Ray, 704 F.3d 1307 (10th Cir. 2013).
10th Circuit says increase for three or more weapons was not double counting. (120) Defendant was convicted of three drug counts, five counts of being a drug user in possession of a firearm, and three counts of possessing a firearm during a drug trafficking crime. The court grouped the drug counts together with the five counts of being an unlawful user in possession counts, and applied a one-level increase under § 2K2.1(b)(1)(A) for an offense involving three or more firearms. The court imposed concurrent sentences for the grouped counts, and a consecutive five-year sentence for the § 924(c)(1)(A)(i) counts. Defendant later moved for a sentence reduction based, in part, on Amendment 599. This amendment says that if a § 924(c) sentence is imposed in conjunction with a sentence for an underlying offense, then the court should not apply an enhancement for possession, brandishing, use or discharge of the firearm. The Tenth Circuit held that the number of weapons involved in the underlying offense to a § 924(c) conviction is a separate type of conduct than that punished by § 924(c) itself. Thus, the district court did not engage in double counting when it applied a one-level increase under § 2K2.1(b) (1)(A). U.S. v. Terrell, 608 F.3d 679 (10th Cir. 2010).
10th Circuit rules Booker does not apply to resentencing under amended guidelines. (120) In 1991, defendant was convicted of drug charges and sentenced to 360 months. In 2006, he filed a motion under 18 U.S.C. §3582(c)(2) to reduce his sentence based on Amendment 505, which reduced the upper level for all drug sentences. He asked the court not only to substitute the amended guideline range for his previous guideline range, but also to reduce his sentence even further under Booker. The court reduced defendant’s sentence to the bottom of the amended guideline range but declined a further reduction, believing that it had no power to do so. The Tenth Circuit agreed, relying on U.S. v. Rhodes, 549 F.3d 833 (10th Cir. 2008), and holding that Booker does not apply to resentencing under §3582(c)(2) following the lowering of a sentencing range by the Sentencing Commission. See U.S. v. Pedraza, 550 F.3d 1218 (10th Cir. 2008).
10th Circuit says “reasonablenss” standard applies only on appeal, but error was harmless. (120) Defendant requested either a downward departure or a variance below his guideline range of 57-71 months. The district court rejected the request, explaining that it believed it could not sentence below the applicable guideline range unless it first determined that a sentence within the applicable range would be unreasonable. The court sentenced defendant to 60 months, three months above the low end of the applicable range. The Tenth Circuit held that the court erred in refusing to consider a variance, ruling that “reasonableness” is the appellate standard of review, and it is error for the district court to apply this standard at sentencing. See U.S. v. Begay, 470 F.3d 964 (10th Cir. 2006). A court may impose a non-guideline sentence if the sentencing factors set forth in § 3553(a) warrant it, even if a guidelines sentence might also be reasonable. However, the error was harmless because the district court exercised its discretion to impose a sentence above the low end of the applicable guideline range. U.S. v. Arrevalo-Olvera, 495 F.3d 1211 (10th Cir. 2007).
10th Circuit reverses pre-Booker sentence that rested on facts found by judge. (120) Defendant was convicted of possession with intent to distribute cocaine based on his purchase of a kilogram of cocaine from a confidential informant. At defendant’s pre-Booker sentencing, the district court found that defendant intended to convert the cocaine to crack and applied the base offense level for offenses involving crack. Based on that determination, the court imposed a sentence of 292 months, but stated that if the guidelines were found unconstitutional it would impose a sentence of 180 months. The Tenth Circuit held that defendant’s sentence violated Booker because it rested on facts found by the judge and that the court’s announcement of an alternative sentence showed that the error was not harmless. U.S. v. Nash, 482 F.3d 1209 (10th Cir. 2007).
10th Circuit holds that court was not required to explain why it rejected below-guidelines sentence. (120) Although defendant presented a variety of reasons for a sentence below the 46-57 month guideline range, the district court imposed a 46-month sentence. Defendant argued that his sentence was procedurally unreasonable because the district court failed to explain why it rejected his arguments that he should be sentenced below the guideline range. The Tenth Circuit held that the court was not required to state why it rejected a below-guideline sentence. Although a court is not obligated to expressly weigh on the record each of the factors set out in § 3553(a), it must state its reasons for imposing a given sentence. Although the court never said explicitly why it was unconvinced by defendant’s arguments for leniency, it stated the two “most compelling” reasons why it chose a sentence of 46 months: defendant’s prior drug trafficking crime involved a large amount of methamphetamine and marijuana, and his continued criminal activity following his conviction and deportation showed that he was not repentant. The court satisfied its obligation to give reasons for choosing a 46-month sentence. U.S. v. Jarrillo-Luna, 478 F.3d 1226 (10th Cir. 2007), overruled as to fast-track by Kimbrough v. U.S., 552 U.S. 85, 128 S.Ct. 558 (2007), as recognized by U.S. v. Lopez-Macias, 661 F.3d 485 (10th Cir. 2011).
10th Circuit upholds mandatory life sentence for carjacking under federal three-strikes law. (120) Defendant was convicted of carjacking, in violation of 18 U.S.C. § 2119. Because the district court found that defendant had two prior “serious violent felony” convictions, the court sentenced him to life imprisonment under the federal three strikes law, 18 U.S.C. § 3559(c). The Tenth Circuit affirmed the mandatory life sentence, rejecting defendant’s arguments that the law violated separation of power principles, due process clause, or the cruel and unusual punishment ban in the U.S. Constitution. U.S. v. Gurule, 461 F.3d 1238 (10th Cir. 2006).
10th Circuit rules Booker error was not harmless where court expressed “great reluctance” in imposing guideline sentence. (120) Defendant argued that the district court committed non-constitutional Booker error by applying the guidelines in a mandatory manner. The Tenth Circuit agreed. Not only did the district court sentence defendant at the bottom of the sentencing range, but the court expressed “great reluctance” in imposing the 37-month sentence, characterizing it as “terribly unfair.” U.S. v. Hernandez-Garduno, 460 F.3d 1287 (10th Cir. 2006).
10th Circuit holds that crack sentence was reasonable. (120) At sentencing, defendant argued that there was no “legitimate basis” for the harsher treatment imposed under the Sentencing Guidelines for crimes involving crack cocaine versus those involving powder cocaine. The district court overruled defendant’s objection and refused to depart from the advisory guideline range. Because defendant’s sentence was within the advisory guideline range, and defendant did not challenge the court’s calculation of that range, the sentence imposed by the district court must be considered reasonable, and the burden was on defendant to rebut that presumption. The Tenth Circuit ruled that defendant could not meet that burden. All circuits to consider this issue have ruled that a sentence is not unreasonable merely because of a district court’s refusal to deviate from the advisory guideline range on the basis of the crack cocaine/powder cocaine disparity. Moreover, at least two circuits have held that it is error for a court to impose a sentence outside the advisory guideline range based upon its own disagreement with the crack cocaine/powder cocaine disparity. The panel agreed with these opinions. U.S. v. McCullough, 457 F.3d 1150 (10th Cir. 2006).
10th Circuit holds that defendant who received § 5K1.1 departure was not affected by mandatory guidelines. (120) Defendant argued that he was entitled to be resentenced because he was sentenced under a mandatory sentencing regime. The Tenth Circuit rejected the request for resentencing because the error was harmless. Remand is not required where harmless error can be shown. The district court did not impose a sentence at the bottom of the applicable guideline range, but rather, exercised its discretion to impose a sentence less than the minimum indicated by the guidelines. The court followed the government’s recommendation that the court depart to a sentence 32 percent below the guideline range. In so doing, the court was not limited by the guidelines. Once a court exercises its discretion to depart from the guidelines, determination of the extent of that discretionary departure is within the sound discretion of the sentencing court and is not limited in any way by the guidelines. There was nothing of a mandatory nature in the guidelines that determined the extent of that departure. Thus, defendant’s sentence was not adversely affected by an erroneous belief that the guidelines were mandatory. U.S. v. Krejcarek, 453 F.3d 1290 (10th Cir. 2006).
10th Circuit remands where court failed to address non-frivolous claim that § 3553(a) factor warranted below-guideline sentence. (120) Defendant received a sentence at the low end of the correctly calculated guideline range. Nonetheless, defendant argued that the presumption of reasonableness did not apply, and that his sentence was unreasonable, because the district court failed to state reasons for the sentence it imposed and failed to consider his arguments that the § 3553(a) factors warranted a sentence below the applicable guideline range. The Tenth Circuit agreed that the court’s failure to address defendant’s arguments at sentencing required resentencing. The court stated no reasons for the sentence it imposed, other than noting that it had reviewed the PSR’s factual findings and considered the guidelines application, and then citing defendant’s offense conduct. The court did not refer to the § 3553(a) factors. The pre-Booker requirement that district courts provide sufficient reasons to allow meaningful appellate review of their discretionary sentencing decisions continues to apply in the post-Booker context. Where a defendant has raised a nonfrivolous argument that the § 3553(a) factors warrant a below-guidelines sentence and has expressly requested such a sentence, the appellate court must be able to discern from the record that the sentencing judge did not rest on the guidelines alone, but considered whether the guideline sentence actually conformed to the statutory factors. Defendant’s argument that the incongruity between his actual conduct and the 16-level enhancement in § 2L1.2 merited a below-guideline sentence was not clearly meritless – some district courts have imposed below-guideline sentences because of such incongruities. Therefore, the court needed to address this argument. U.S. v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006).
10th Circuit upholds its jurisdiction to review sentence that falls within guideline range. (120) The government argued that the court of appeals lacked subject matter jurisdiction over defendant’s appeal of his sentence because defendant’s sentence was within the calculated guidelines range. The government argued that a claim that a sentence within a correctly calculated guideline range is unreasonable is outside the “limited appellate review” authorized by 18 U.S.C. § 3742(a). The Tenth Circuit disagreed, holding that unreasonable sentences, whether they fall within or outside the advisory guidelines range, are “imposed in violation of law,” and thus are reviewable under § 3742(a)(1). Moreover, the Supreme Court in Booker expressly directed appellate courts to review all sentences for reasonableness. U.S. v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006).
10th Circuit holds that court is not required to state on the record how it weighed the § 3553(a) sentencing factors. (120) Defendant contended that the district court erred by not stating on the record how it weighed the § 3553(a) factors other than the guidelines. The Tenth Circuit held that the court was not required to state on the record how it weighed the statutory sentencing factors other than the sentencing guideline range. Section 3553(c)(2) had no bearing on the case because the sentence was within the guideline range. Section (c)(1) did apply, because the sentence exceeded 24 months, but for obvious reasons defendant did not challenge the court’s failure to state why it was imposing a sentence at the bottom of the guideline range. When the defendant has not raised any substantial contentions concerning non-guidelines § 3553(a) factors and the district court imposes a sentence within the guideline range, the court is not required to explain on the record how the § 3553(a) factors justify the sentence. U.S. v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006).
10th Circuit upholds consecutive sentence for violating terms of supervised release. (120) In 1999, defendant pled guilty to illegal reentry after deportation for an aggravated felony. He was sentenced to 57 months, followed by a three-year term of supervised release, which included a provision that he not return to the U.S. Less than one year later, defendant was again found in the U.S. illegally and again pled guilty to illegal reentry. Defendant’s supervised release was revoked and he was ordered to serve an additional 15 months’ imprisonment for violating the terms of his supervised release, to be served consecutively to a 30-month term imposed for the current illegal-reentry offense. The Tenth Circuit held that the district court did not act unreasonably by making the revocation sentence consecutive to the sentence imposed upon his conviction for the underlying offense. Consecutive sentences were in accordance with the advisory policy statement in U.S.S.G. §7B1.3(f). Although the Supreme Court altered the standard of review for most sentencing cases, the standard of review for cases where the defendant challenged the revocation of his supervised release remained the same — the sentence will be upheld “if it can be determined from the record to have been reasoned and reasonable.” The sentence here was reasonable. U.S. v. Rodriguez-Quintanilla, 442 F.3d 1254 (10th Cir. 2006).
10th Circuit holds that court properly refused to grant variance based on cultural assimilation. (120) Defendant pled guilty to reentry after deportation. The district court denied defendant’s request to sentence him below the applicable guideline range based on his “cultural assimilation,” i.e. his close familial and cultural ties to the U.S. The Tenth Circuit held that the district court did not err in imposing a guideline sentence. First, it was “presumptively reasonable” for the court to sentence defendant within the applicable guideline range. Second, the court specifically reviewed and rejected defendant’s claim in light of the relevant factors contained in § 3553(a) and the circumstances of the case. The judge noted that he had seen “lots of tragic situations” where “families’ lives are torn by the border” and that he did not believe that defendant’s case warranted differentiation from the others. U.S. v. Galarza-Payan, 441 F.3d 885 (10th Cir. 2006).
10th Circuit holds that Booker did not support § 3582(c)(2) sentence reduction. (120) Defendant argued that the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005), which severed the portion of the Sentencing Guidelines that made them mandatory, “indirectly lowered” the sentencing range under which he was sentenced, and thus gave the district court authority under 18 U.S.C. § 3582(c)(2) to reduce his sentence. Section 3583(c)(2) provides in part that a court has authority to modify a sentence when the range has been lowered “by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” The Tenth Circuit held that § 3582(c) (2) only expressly allows a reduction where the Sentencing Commission, not the Supreme Court, has lowered the sentencing range. Booker did not provide a basis for a sentence reduction under § 3583(c)(2). U.S. v. Price, 438 F.3d 1005 (10th Cir. 2006).
10th Circuit outlines post-Booker standard of review. (120) In its first case considering a sentence imposed after Booker, the Tenth Circuit “delineate[d] the contours of this newly pronounced standard of review.” Reasonableness review is guided by the factors set forth in 18 U.S.C. § 3553(a). However, the now-advisory guidelines are one of the factors to be considered in imposing a sentence, which means that district court “must consult those guidelines and take them into account when sentencing.” The Tenth Circuit joined other circuits in holding that a sentence that is properly calculated under the guidelines is entitled to a rebuttable presumption of reasonableness. This is a deferential standard that either the defendant or the government may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in § 3553(a). This new standard of review does not dispute the oft-cited principle that in considering the district court’s application of the guidelines, the appellate court reviews factual findings for clear error and legal determinations de novo. U.S. v. Kristl, 437 F.3d 1050 (10th Cir. 2006).
10th Circuit holds that 360-month sentence for career offender was reasonable. (120) Defendant argued that his 360-month sentence for armed bank robbery was unreasonable, citing the 155-month sentence received by his co-defendant.. He also contended that the court treated the guidelines as de facto mandatory, and that he should not have been designated as a career offender. The Tenth Circuit rejected all of these arguments and affirmed the 360-month sentence. The reason defendant received a sentence so much longer than his co-defendant was defendant’s status as a career offender. Although the court imposed a sentence within the guideline range of 360 months to life imprisonment, the court did not treat the guidelines as mandatory. The court properly sentenced defendant as a career offender. The government submitted certified documentation to the district court establishing that defendant was over 18 years old at the time of the armed robbery. There was no dispute that attempted armed robbery is a crime of violence under § 4B1.2(1)(a). Finally, defendant had prior convictions for possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and assault and battery on a peace officer. These felony convictions were either crimes of violence or controlled substance offenses under § 4B1.2(a) and (b). U.S. v. Davis, 437 F.3d 989 (10th Cir. 2006).
10th Circuit finds no Booker error where court did not consider guidelines mandatory. (120) Defendant argued that, following U.S. v. Booker, 543 U.S. 220 (2005), the court erred in calculating his sentence. Although defendant was sentenced prior to Booker, he preserved his claim by objecting at sentencing that, under Blakely v. Washington, 542 U.S. 296 (2004), the court erroneously took into account judge-found facts in applying a four-level enhancement. The Tenth Circuit found that the case did not implicate Booker. Despite the fact that the court sentenced defendant before Booker was decided, the court “apparently divined that the Supreme Court would strike down the mandatory application of the Sentencing Guidelines.” Because the court sentenced defendant to a discretionary non-mandatory sentence of 262 months, Booker was not implicated. Booker does not prohibit the district from making factual findings and applying the enhancements and adjustments to defendant’s sentence as long as it did not view or apply the guidelines as mandatory. U.S. v. Visinaiz, 428 F.3d 1300 (10th Cir. 2005).
10th Circuit remands for sentencing under advisory guidelines where sentence imposed was at the bottom of guideline range. (120) Defendant argued that the court erred in applying the Sentencing Guidelines in a mandatory fashion. Because he raised this claim in the district court, the Tenth Circuit reviewed for harmless error. Given that defendant was sentenced at the bottom of his guideline range, the government conceded that remand was appropriate under U.S. v. Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005). U.S. v. Austin, 426 F.3d 1266 (10th Cir. 2005).
10th Circuit holds that use of mandatory Sentencing Guidelines was not plainly erroneous. (120) Defendant was convicted of being a felon in possession of ammunition. The Tenth Circuit upheld defendant’s conviction and sentence, but the Supreme Court granted his petition for a writ of certiorari and remanded for further consideration in light of U.S. v. Booker, 543 U.S. 220 (2005). The Tenth Circuit reinstated its prior opinion, holding that the imposition of a sentence under the mandatory Sentencing Guidelines was not plainly erroneous. Defendant could not meet the “demanding standard” of the fourth prong of the plain error test – he could not establish that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Nothing in the record suggested that if the court were to remand, the district judge would not simply reimpose the same sentence, nor did anything in the record suggest any unfairness in the sentencing. Defendant made no objection at sentencing to the PSR, he disputed no facts, he presented no mitigating evidence, and did not argue for a downward departure. Moreover, the judge did not express any dissatisfaction with the guideline sentence, stating that the sentence would “achieve a reasonable punishment for the offense committed as well as provide for other purposes of sentencing as established by statute.” U.S. v. Jones, 425 F.3d 1274 (10th Cir. 2005).
10th Circuit rules finding of additional drugs was plain error where there was lack of substantial evidence to support increase. (120) Defendant was arrested transporting 4.97 kilograms of cocaine from California to Minnesota. The arresting agent testified that defendant told him she had made nine previous trips from California to Minnesota. The district court sentenced defendant based on five kilograms of cocaine, finding it “highly unlikely” that the prior trips would not have involved more than 30 grams of cocaine. The first two prongs of the plain error test were met with regard to the drug quantity issue, because the district court, rather than the jury, made the finding that defendant carried at least 30 grams of cocaine on her prior trips. The Tenth Circuit found that the last two prongs of the plain error analysis were also satisfied, and remanded for resentencing. The error was prejudicial, because but for the court’s finding that defendant carried the additional 30 grams of cocaine on a previous trip, defendant’s total offense level would have been two levels lower, since it would have been based only on the 4.97 kilograms of cocaine to which she pled guilty of possessing. Finally, although not all constitutional Booker errors undermine the integrity, fairness, or public reputation of judicial proceedings, the panel found remand appropriate here. Defendant made numerous objections to the PSR and objected strenuously to the factual basis on which the judge found an additional 30 grams of cocaine. This combined with the conceded lack of substantial evidence supporting the upward adjustment was sufficient for the court to notice the error and remand for resentencing. U.S. v. Bradford, 423 F.3d 1149 (10th Cir. 2005).
10th Circuit holds that plain error in imposing obstruction increase did not warrant remand. (120) The district court applied a two-level obstruction of justice increase because defendant absconded from supervision after offering assistance to the government. The Tenth Circuit agreed that the enhancement violated Booker, because the court made the finding that defendant absconded from supervision, a fact not found by a jury, and one to which she did not plead guilty. However, remand was not warranted because defendant could not satisfy the third prong of the plain error test – she could not show that the constitutional error affected her substantial rights. There was no reason to think a jury would not have found the same material facts as the judge nor any indication that the court would have sentenced any differently had it analyzed the proper sentencing factors. Defendant never suggested that she did not abscond from supervision while under arrest; to the contrary, she admitted during sentencing that she was sorry “for the fact that I ran.” U.S. v. Bradford, 423 F.3d 1149 (10th Cir. 2005).
10th Circuit finds Booker error was harmless where court imposed sentence near guideline maximum. (120) Defendant preserved his claim of Booker error, so the only issue was whether the court’s mandatory application of the guidelines constituted harmless error. The Tenth Circuit ruled that the error was harmless, since defendant received a sentence near the guidelines maximum. The sentencing range for defendant was 51 to 63 months. The court, following the PSR’s recommendation and the government’s request, imposed a sentence of 60 months. Thus, the court exercised discretion by imposing a sentence near the guidelines maximum when it could have imposed the minimum. “We have no reason to think that the district court would impose a different sentence on remand.” U.S. v. Paxton, 422 F.3d 1203 (10th Cir. 2005).
10th Circuit rules defendant did not show Booker error affected substantial rights. (120) Defendant argued for the first time on appeal that he was entitled to resentencing in light of Booker. The Tenth Circuit ruled that defendant did not demonstrate that any Booker error in imposing an obstruction of justice increase affected his substantial rights. Defendant did not point to any evidence in the record that the judge believed that the guideline range was excessive in light of the record before the court. Moreover, a review of the record on appeal made clear that the jury would most certainly have found beyond a reasonable doubt the predicate facts necessary to support the obstruction of justice increase. Despite defendant’s trial testimony that he was unaware of the presence of marijuana in the car he was driving, the jury found him guilty of possession of more than 100 kilograms of marijuana. Implicit in the guilty verdict was a conclusion that defendant lied on the witness stand about the central issue in the case. U.S. v. Badilla, 419 F.3d 1128 (10th Cir. 2005).
10th Circuit says applying Booker’s remedial holding to offense that predated Booker did not violate due process. (120) Defendant argued that the applying the remedial holding in U.S. v. Booker, 543 U.S. 220 (2005) (guidelines are in effect but advisory rather than mandatory) for an offense that predated Booker violated due process because it was a “judicially created rule [that] is [an]unforeseeable alteration of what was up until Booker a clear statutory requirement [that he be sentenced within the guidelines range.]” The Tenth Circuit noted that this argument was contrary to the Supreme Court’s explicit instructions in Booker. Justice Breyer clearly states that courts “must apply today’s holdings – both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act – to all cases on direct review.” Booker, 125 S.Ct. at 769. The Supreme Court did not order courts to violate the Constitution. Moreover, the district court adequately considered the § 3553(a) factors, stating it had looked at the record in its entirety, and after its review concluded that 70 months was an appropriate sentence. U.S. v. Rines, 419 F.3d 1104 (10th Cir. 2005).
10th Circuit says non-constitutional Booker error did not constitute plain error. (120) In response to defendant’s Booker claim, the Tenth Circuit found no Sixth Amendment error because the district court enhanced defendant’s sentence based only upon the existence of his prior violent felony conviction. However, the district court did commit non-constitutional Booker error by treating the guidelines as mandatory. This was sufficient to satisfy the first two prongs of the plain-error analysis. However, the panel found it unnecessary to determine if defendant satisfied the third prong of prejudice, because he could not meet the fourth prong of plain error review: the court may exercise its discretion to notice a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Failing to correct a non-Sixth Amendment Booker error when the defendant has failed to preserve the error will rarely be found to have seriously affected the fairness, integrity, or public reputation of judicial proceedings. Such an error is only an “error” at all “as the serendipitous consequence of the severability analysis the Supreme Court employed to correct the constitutional infirmity created by the combination of judicial factfinding and the mandatory application of the guidelines.” There was no reason to conclude that the sentence imposed was “anything but reasonable.” U.S. v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir. 2005).
10th Circuit says defendant who agreed to specific sentence could not raise claim of improper use of mandatory guidelines. (120) Defendant’s plea agreement provided that he should be sentenced at the bottom of the applicable guideline range. Based on stipulated facts, the “tentative” guideline range contemplated by the plea agreement was 70-87 months. The district court disagreed with one of the PSR’s recommended enhancements, and imposed a 63-month sentence. Defendant argued that he was entitled to a remand on the grounds that he was sentenced under a mandatory sentencing scheme, in violation of U.S. v. Booker, 543 U.S. 220 (2005). The Tenth Circuit held that it lacked jurisdiction over the appeal. Defendant received the specific sentence he bargained for as part of his guilty plea. Having exposed himself to a specific punishment, he could not now claim he was the victim of a mandatory sentencing system. Booker did not undermine the validity of sentences imposed under Rule 11(c)(1)(C). U.S. v. Silva, 413 F.3d 1283 (10th Cir. 2005).
10th Circuit holds that error in applying firearm increase would be noticed as plain error. (120) Defendant, convicted of drug charges, argued that the district court erred in adding a two-level firearm enhancement based on judge-found facts not alleged in the superseding indictment or tried to the jury. The Tenth Circuit agreed that the case involved constitutional Booker error, and found that the error would be noticed as plain error. While the court’s “rough satisfaction” with defendant’s sentence weighed against noticing plain error, the district court rejected the government’s request for a life sentence and sentenced defendant at the bottom of the guideline range. “On balance, these circumstances weigh in favor of noticing a sentencing error.” Moreover, the errors increased defendant’s minimum guideline sentence nearly 100 months, from 262 to 360 months. Even a sentence at the high end of the lower range would be a significant reduction in jail time. This “significant increase” in defendant’s sentence similarly weighed in favor of noticing the error, especially since the error was constitutional in nature. U.S. v. Johnson, 414 F.3d 1260 (10th Cir. 2005).
10th Circuit finds Booker error harmless where court had discretion under § 5K1.1 as to extent of downward departure. (120) Defendant was sentenced prior to the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005), therefore, the district court sentenced defendant under the mistaken impression that the Sentencing Guidelines were mandatory rather than advisory. The Tenth Circuit found the error harmless because the record showed that defendant’s sentence would have been the same under the post-Booker discretionary regime. The government had moved under § 5K1.1 for a downward departure based on defendant’s substantial assistance. Under that provision, the district court had considerable discretion regarding the amount of reduction, if any, and it could undoubtedly have exercised its discretion to impose a lesser sentence than it did. Although in determining the extent of a downward departure, “substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance,” the district court nonetheless retains discretion to depart to the degree it finds appropriate, regardless of a specific recommendation by the government. If the court thought defendant deserved an even lesser sentence, it could have departed further. Nothing in the record overcame the presumption that the court was aware of its discretion. U.S. v. Ollson, 413 F.3d 1119 (10th Cir. 2005).
10th Circuit says judicial finding that offense involved trafficking in child pornography affected substantial rights. (120) Defendant was convicted of five counts of possession of child pornography. The district court, applying the then-mandatory guidelines, enhanced his sentence based on its finding that the offense involved trafficking in, rather than simple possession of, child pornography. See § 2G2.2. The court also enhanced his sentence based on a finding that the material involved prepubescent minors under the age of 12. § 2G2.2(b)(1). These enhancements were imposed in violation of U.S. v. Booker, 543 U.S. 220 (2005). Reviewing under the plain error test, the Tenth Circuit found that defendant showed that the error affected his substantial rights. Although the PSR asserted, and the district court in turn found, that the offenses involved trafficking, rather than mere possession of, child pornography, neither the PSR nor the district court offered a rationale for the finding, and there was little evidence in the record to support such a finding. Given the complete lack of record support for the enhancements, the panel also concluded that, under the fourth prong of the plain error test, it should correct the plain error. The court imposed a sentence at the bottom of the 37-46 month guideline range, and there were indications that it might have selected an even lower sentence if it knew it had the discretion to do so. U.S. v. Bass, 411 F.3d 1198 (10th Cir. 2005).
10th Circuit holds that court’s mandatory application of the guidelines was not reversible. (120) Defendant was convicted of sexually assaulting a person under the age of 12. He argued that the court committed plain error under U.S. v. Booker, 543 U.S. 220 (2005) by enhancing his sentence based upon judicial fact-finding. The finding, that defendant had care and custody over the victim, resulted in a two-level increase under § 2A3.1(b)(3)(A). The Tenth Circuit held that the court’s mandatory application of the guidelines, while error, was not reversible. First, there was no constitutional error. Booker made it clear that it is the actual sentence, not the sentencing range, that must be increased based upon judicial finding in order to violate the Sixth Amendment. Defendant’s 135-month sentence still fell within the range applicable without the enhancement. Treating the guidelines as mandatory, regardless of whether the defendant is sentenced under § 3553(b)(1) or (b)(2), is error. However, defendant could not meet the fourth prong of plain error review – i.e. that failure to correct the forfeited error would seriously affect the fairness, integrity or public reputation of judicial proceedings. This prong is only met “in those rare cases in which core notions of justice are offended.” U.S. v. Yazzie, 407 F.3d 1139 (10th Cir. 2005).
10th Circuit holds that preserved Booker error was harmless. (120) The district court enhanced defendant’s sentence based on facts found by a preponderance of the evidence. The government conceded that defendant’s timely Apprendi objection adequately preserved his Booker argument, but contended that the error was harmless. The Tenth Circuit agreed that the error was harmless, since the evidence to support those factual findings was overwhelming. At trial, two adult witnesses identified themselves as the youths depicted in defendant’s pornographic pictures, and testified about the circumstances in which defendant had taken pictures of them. There was no reason to believe that if the factual issues of transporting minors, the ages of the victims and whether there was more than one victim had been submitted to the jury, it would have found any differently. There also was no reason to think the court would have imposed a less severe sentence in the exercise of its post-Booker discretion. The court sentenced defendant at the top of the applicable guideline range, and the court’s comments did not suggested that it believed the sentence it imposed was not appropriate. U.S. v. Riccardi, 405 F.3d 852 (10th Cir. 2005).
10th Circuit holds that treating guidelines as mandatory rather than advisory constituted plain error. (120) Defendant argued for the first time on appeal that his sentence was unconstitutional in light of Blakely v. Washington, 124 S.Ct. 2531 (2004). The Tenth Circuit held that the district court’s non-constitutional Booker error in treating the Sentencing Guidelines as mandatory rather than as advisory rose to the level of plain error. Defendant demonstrated a reasonable probability that had the district court applied the post-Booker sentencing framework, he would have received a lesser sentence. The relatively trivial nature of defendant’s criminal history was at odds with the substantial 16-level enhancement he received under § 2L1.2(a)(1) (A)(ii) for a prior Oklahoma conviction for arson. The state court assessed restitution of a mere $35 for defendant’s third-degree arson, suggesting a quite minor offense. In addition, the district court’s expression of sympathy for defendant and complaint about the minimum guideline sentence also implied the court was inclined to depart. Finally, given the mismatch between the sentence suggested by the post-Booker framework and the actual sentence given to defendant, the error affected the fairness, integrity, and caprice inherent in less structured sentencing determinations. U.S. v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005).
10th Circuit finds plain error where court says 210-month ACCA guideline sentence was “immoral.” (120) Defendant was found guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and sentenced as an armed career criminal to 210 months’ imprisonment. While the district court denied defendant’s request for a downward departure, it was clearly dissatisfied with the sentence required by the guidelines, stating that the sentence was “immoral” and “so grossly out of proportion to the offense conduct here that it just smacks of something that certainly isn’t justice.” The district court sentenced defendant under the erroneous belief that the guidelines were mandatory, thus committing a “non-constitutional Booker error.” The Tenth Circuit found that under the unique circumstances of this case, and regardless of factors which are developed for the application of plain error post-Booker, defendant satisfied the third and fourth prongs of plain-error review. Clearly, under the third prong, defendant showed a reasonable probability that but for the error, his sentence would have been different. In addition, he demonstrated that the error was “particularly egregious” and that the appellate court’s failure to notice it would result in a “miscarriage of justice.” U.S. v. Williams, 403 F.3d 1188 (10th Cir. 2005).
10th Circuit, en banc, says non-constitutional Booker error was not plain error. (120) In sentencing defendant, the court did not rely upon judge-found facts, but it did apply mandatorily the guidelines. Defendant argued for the first time on appeal that the mandatory application of the guidelines constituted reversible error under U.S. v. Booker, 543 U.S. 220 (2005). The Tenth Circuit, en banc, held that the mandatory application of the guidelines is not a structural error. A defendant bears the burden of showing that his substantial rights were affected by a non-constitutional Booker error. The en banc court rejected the 6th Circuit’s approach in U.S. v. Barnett, 398 F.3d 516 (6th Cir. 2005), which applied a presumption of prejudice to non-constitutional Booker errors. Moreover, even if defendant could meet the third prong (which the court did not decide), he was still required to meet the fourth prong, i.e. the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Defendant failed to meet this burden. The error, applying the guidelines in a mandatory fashion, was only error because it ran afoul of the court’s remedy for the unconstitutional aspects of the guidelines. The disconnection between the constitutional violation and the remedy made Booker unique. Moreover, defendant’s guideline sentence was consistent with the national norm, and the record was devoid of any mitigating evidence. Finally, for the last 18 years, every court has given the guidelines approval, applying them to tens of thousands of federal cases. One cannot possibly say that all sentences imposed before Booker threatened the fairness, integrity, or public reputation of judicial proceedings. U.S. v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005) (en banc).
10th Circuit holds that prior conviction need not be proven to jury. (120) Defendant was sentenced under the Armed Career Criminal Act pursuant to 18 U.S.C. § 924(e) based on the court’s finding that he had three prior convictions for a violent felony. The Tenth Circuit rejected defendant’s claim that the three previous felony convictions are facts that must be charged in the indictment and either admitted to by the defendant or proven to a jury beyond a reasonable doubt. Under Almendarez-Torres v. U.S., 523 U.S. 224 (1998) the court held that the fact of a prior conviction was a traditional sentencing factor that need not be charged in the indictment and proven. Almendarez-Torres was not overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000). U.S. v. Dorris, 236 F.3d 582 (10th Cir. 2000). Almendarez-Torres is still good law, despite language in recent Supreme Court cases suggesting otherwise. See the concurrence of Justice Thomas in Shepard v. U.S., 125 S.Ct. 1254 (2005) (Almendarez-Torres has been eroded and a majority of the Supreme Court now recognizes it was wrongly decided). The panel also rejected defendant’s argument that the determination of a previous felony as “violent” under § 924(c) was a fact to be proven to a jury. It is a question of law whether a given conviction constitutes a “violent felony” and such a question does not trigger the Sixth Amendment. U.S. v. Moore, 401 F.3d 1220 (10th Cir. 2005).
10th Circuit remands under Booker even though sentence was based on admitted drug quantity. (120) The district court applied Sentencing Guidelines that corresponded to the drug quantity admitted by defendant in his guilty plea rather than the larger drug quantity contained in the PSR. The Tenth Circuit remanded for resentencing under U.S. v. Booker, 543 U.S. 220 (2005), even though defendant’s case did not involve a Sixth Amendment violation. In Booker’s companion case, the district court held that Blakely applied to the federal Sentencing Guidelines and sentenced the defendant Fanfan based solely on drugs found by the trial jury. The Supreme Court nonetheless found that the government and defendant could seek resentencing under Booker. U.S. v. Lynch, 397 F.3d 1270 (10th Cir. 2005).
10th Circuit rules sentence determined under mandatory guidelines was not harmless error. (120) In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court held that Blakely v. Washington, 124 S.Ct. 2531 (2004) applies to the federal Sentencing Guidelines, so that any fact (other than a prior conviction) used to support a sentence exceeding the maximum authorized by the guilty plea or jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. In defendant’s case, no facts were found by a judge and no Blakely violation occurred. Even though defendant’s sentence did not violate the Sixth Amendment, the Tenth Circuit found that it was required to apply the remedial holding of U.S. v. Booker, 543 U.S. 220 (2005), which invalidated the guidelines’ mandatory application and required district courts to consult them in an advisory fashion. Here, because the district court plainly sentenced defendant under the guidelines, and viewed the guidelines as mandatory, the error was not harmless. Defendant was sentenced at the bottom of the guideline range. “[T]o say that the district court would have imposed the same sentence given the new legal landscape) even after consulting the Sentencing Guidelines in an advisory capacity) places us in a zone of speculation and conjecture – we simply do not know what the district court would have done after hearing from the parties.” U.S. v. Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005).
10th Circuit says Blakely did not provide grounds for second § 2255 motion. (120) Relying on Blakely v. Washington, 124 S.Ct. 2531 (2004), defendant sought authorization under the Antiterrorism and Effective Death Penalty Act to file a second or successive motion under 28 U.S.C. § 2255, claiming that Blakely sets forth a new rule of constitutional law made retroactive to cases on collateral review. The Tenth Circuit held that defendant did not make a sufficient showing that satisfied the requirements of § 2252(2). The Supreme Court did not, in Blakely, invalidate the federal Sentencing Guidelines or hold that Blakely applies to the federal guidelines. It also has not held that the rule is retroactive to cases on collateral review for purposes of granting a second or successive § 2255 motion. Leonard v. U.S., 383 F.3d 1146 (10th Cir. 2004).
10th Circuit finds Apprendi error did not affect substantial rights due to required sentence “stacking.” (120) Defendants argued for the first time on appeal that their sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The government conceded that imposing sentences in excess of 20 years on counts where drug quantity was omitted from the indictment or where the jury was not instructed on drug quantity constituted “error” that was “plain.” However, the Tenth Circuit held that neither defendant could show that the error affected their substantial rights because their total length of imprisonment would not have been shorter under § 841(b)(1)(C) due to the mandatory “stacking” requirement of U.S.S.G. § 5G1.2(d). The first defendant received a life sentence. However, he was convicted of counts which, if ordered to run consecutively, would have resulted in a total sentence of 125 years. A 125-year sentence is the effective equivalent of a life sentence. The second defendant received a 360-month sentence. His two counts of conviction each carried a 240-month maximum under 21 U.S.C. § 841(b)(1)(C). Running these sentences consecutively easily reached the level needed to support a total sentence of 30 years. U.S. v. Lott, 310 F.3d 1231 (10th Cir. 2002).
10th Circuit reviews failure to submit drug quantity to jury for plain error. (120) Defendants argued for the first time on appeal that their sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because the jury was not instructed that it had to find drug quantity beyond a reasonable doubt. In U.S. v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002), the Supreme Court analyzed an Apprendi error based on an indictment’s omission of drug quantity. Cotton held that an omission from an indictment is not jurisdictional, and thus the indictment’s defect should be analyzed under Rule 52(b)’s plain error test. The Tenth Circuit found that plain error review was also appropriate for defendants’ unpreserved challenge to the jury’s failure to find drug quantity. Imposing sentences in excess of 20 years where drug quantity was omitted from the indictment and the jury was not instructed to find drug quantity constituted “error” that was “plain.” However, neither defendant could show that the Apprendi errors affected their substantial rights because their total length of imprisonment would not have been shorter even if they were properly sentenced under § 841(b)(1)(C) due to the mandatory “stacking” requirement of USSG § 5G1.2(d). See U.S. v. Price, 265 U.S. 1097 (10th Cir. 2001). The mandatory application of § 5G1.2(d) in multi-count indictment cases will often result in Apprendi errors failing to affect a defendant’s substantial rights. U.S. v. Lott, 310 F.3d 1231 (10th Cir. 2002).
10th Circuit holds Apprendi does not bar firearm increase under § 2D1.1(b)(1). (120) The Tenth Circuit noted that the enhancement in § 2D1.1(b)(1) for possession of a firearm does not increase the penalty beyond the statutory maximum and therefore need not be proved as an element of the offense. Accordingly, Apprendi v. New Jersey, 530 U.S. 466 (2000) does not preclude this guideline enhancement. U.S. v. Alexander, 292 F.3d 1226 (10th Cir. 2002).
10th Circuit finds no prejudice from Apprendi error where guidelines required “stacked” sentences. (120) For the first time on appeal from the dismissal of his 28 U.S.C. § 2255 motion, defendant challenged his 286-month sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000). He had neither objected to nor directly appealed the trial court’s Apprendi error. Therefore, he could not obtain collateral relief unless he demonstrated “cause” excusing his procedural default and “actual prejudice” resulting from the error. The Tenth Circuit dismissed the appeal, finding no “prejudice” because the error would not have been reversible on direct appeal. Guideline § 5G1.2(d) provides if the total punishment for multiple offenses is higher than the highest statutory maximum, the sentences shall run consecutively to the extent necessary to produce a combined sentence equal to the total punishment. Section 5G1.2(D) is a mandatory provision. Absent the Apprendi error, the district court would have been required to impose 20-year terms for each of defendant’s drug convictions and run the sentences consecutively to the extent necessary to produce a combined sentence equal to 286 months. U.S. v. Bailey, 286 F.3d 1219 (10th Cir. 2002).
10th Circuit rejects Apprendi challenge. (120) Defendant pled guilty to charges arising from his attempt to sell three pounds of methamphetamine to an undercover officer. He argued for the first time on appeal that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Tenth Circuit found no Apprendi error. First, the indictment here did specify a drug quantity – it specified that his offense involved 50 grams of methamphetamine. The maximum penalty for this offense is life imprisonment. Defendant’s ten-year sentence was well under that statutory maximum, and less than the 20-year maximum provided in § 841(b)(1)(C) for offenses with no specified quantity of meth. In order for defendant to prevail, the court would have to extend the Apprendi rule to mandatory minimum sentences, a position which only one circuit has adopted. See U.S. v. Strayhorn, 250 F.3d 462 (6th Cir. 2001). Finally, even if the court were to follow Strayhorn, that alone would not entitle defendant to relief. The indictment’s phrase “50 grams of more of methamphetamine” should be construed as meaning what it says, rather than meaning “50 grams or more of a mixture of substance containing a detectable amount of methamphetamine.” U.S. v. Lujan, 268 F.3d 965 (10th Cir. 2001).
10th Circuit holds that § 5G1.2(d)’s consecutive sentence requirement is mandatory and thus Apprendi error did not affect substantial rights. (120) The quantity of drugs was not listed in the indictment nor submitted to the jury as a fact to be proved beyond a reasonable doubt. Thus, defendant’s life sentences imposed pursuant to 21 U.S.C. § 841(b)(12)(A) were plain error. See Apprendi v. New Jersey, 530 U.S. 466 (2000). The government argued that defendant’s “substantial rights” were not affected because the district court, if it had properly sentenced defendant under § 841(b)(1)(C), would have been required by USSG § 5G1.2(d) to impose consecutive sentences in order to approximate the life sentence required by the guidelines. In U.S. v. Jones, 235 F.3d 1231 (10th Cir. 2001), the Tenth Circuit rejected a similar argument, because such a result would be “guided by idle speculation” as to the sentence that might be imposed by the district court on remand. However, the government here contended that § 5G1.2(d) is a mandatory provision that must be applied. Noting a circuit split on this issue, the Tenth Circuit joined those circuits holding that § 5G1.2(d) is a mandatory provision, and thus the Apprendi error did not affect defendant’s substantial rights. Section 5G1.2(d) speaks in terms of “shall” rather than “may.” Because § 5G1.2(d) is a mandatory provision, there was no “idle speculation” as to the sentence the court would impose on remand. U.S. v. Price, 265 F.3d 1097 (10th Cir. 2001).
10th Circuit holds that Apprendi did not render federal drug statutes facially unconstitutional. (120) Defendant argued for the first time on appeal that Apprendi v. New Jersey, 530 U.S. 466 (2000), rendered 21 U.S.C. § 841 facially unconstitutional. Rather than re-interpreting § 841(b) as setting forth the elements of a drug offense, defendant argued that the court should follow its prior interpretation of § 841(b) as setting forth only sentencing factors that are to be decided by the district court. Under this interpretation, the statute would be unconstitutional under Apprendi, which does not permit the jury to decide facts that could increase the penalty for a conviction beyond the prescribed statutory maximum in 21 U.S.C. § 841(b)(1)(C). The Tenth Circuit rejected this argument. In U.S. v. Jones, 235 F.3d 1231 (10th Cir. 2000), the court interpreted § 841(b) as setting forth the elements of a federal drug offense to be decided by a jury. Thus, even if it agreed with defendant, the panel could not overrule Jones and apply the contrary interpretation he urged. U.S. v. James, 257 F.3d 1173 (10th Cir. 2001).
10th Circuit says Apprendi does not apply to guideline factors that do not increase statutory maximum. (120) Defendant argued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because the amount of tax loss and enhancement for sophisticated concealment were not required to be proved beyond a reasonable doubt. The Tenth Circuit joined other circuits who have held that Apprendi does not apply to sentencing factors that increase a defendant’s guideline range but do not increase the statutory maximum. Since the tax loss calculation and sophisticated concealment enhancements did not increase defendant’s sentence beyond the statutory maximum of 12 months for each count of failure to file, his sentence did not violate Apprendi. U.S. v. Sullivan, 255 F.3d 1256 (10th Cir. 2001).
10th Circuit holds that sentence in excess of statutory maximum violated Apprendi. (120) Defendant argued that Apprendi v. New Jersey, 530 U.S. 466 (2000), rendered 21 U.S.C. § 841 facially unconstitutional. The Tenth Circuit rejected this argument, finding no inconsistency between Apprendi and § 841. However, the district court plainly erred in its application of § 841(b) in light of Apprendi. The indictment did not charge defendant with possessing any specific quantity of marijuana, and his plea agreement did not admit to possessing any specific quantity. The district court based its 87-month on a finding by a preponderance of the evidence that defendant possessed 66 pounds of marijuana in his car, 35 pounds in his home, and transported 100 pounds of marijuana per month for three years. Section 841(b)(1)(D) sets forth a statutory maximum sentence of 60 months for persons convicted of possessing fewer than 50 kilograms of marijuana. Because defendant was neither indicted nor convicted of possessing more than 50 kilograms of marijuana, § 841(b)(1)(D) limited his maximum sentence exposure. U.S. v. Cernobyl, 255 F.3d 1215 (10th Cir. 2001).
10th Circuit upholds application of AEDPA’s standard to deny § 2255 Apprendi petition. (120) Under the AEDPA, the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), is not applicable to second or successive habeas motions unless and until it has been “made applicable to cases on collateral review by the Supreme Court,” as required by 28 U.S.C. § 2255. The Tenth Circuit has held that applications to file second or successive habeas petitions based on Apprendi will be dismissed until the Supreme Court chooses specifically to declare the new rule applicable to cases on collateral review. See Browning v. U.S., 241 F.3d 1262 (10th Cir. 2001). Defendant argued that because this was his first § 2255 petition after AEDPA’s enactment, applying AEDPA’s standard to deny his application would render the standard impermissibly retroactive. The Tenth Circuit first held that AEDPA’s purely procedural “gatekeeping” requirements are applicable to all petitioners seeking to file post-AEDPA’s second or successive habeas applications, regardless of when their initial habeas petitions were filed. The court also concluded that there was no retroactive effect in applying post-AEDPA substantive standards to defendant – the result was the same under either standard. The court analyzed the difference between the pre-AEDPA standard for applying the new rule retroactively under Teague v. Lane, 489 U.S. 288 (1989) and the post-AEDPA standard. Although the AEDPA did not adopt the Teague doctrine wholesale, they have similar elements of “antiretroactivity.” Daniels v. U.S., 254 F.3d 1180 (10th Cir. 2001).
10th Circuit finds no Apprendi violation where sentence fell within statutory maximum supported by jury verdict. (120) Defendant argued that his trial and sentencing procedures violated Apprendi v. New Jersey, 530 U.S. 466 (2000) Although the jury did not determine drug quantity beyond a reasonable doubt, defendant’s sentence fell within the prescribed statutory maximum for the offense the jury did consider, and thus the Tenth Circuit ruled there was no Apprendi violation. The jury was instructed that it need only find that defendant possessed “a measurable amount” of the drug. Although the jury considered drug amounts beyond the 36 ounces alleged in the indictment when computing defendant’s sentence, that is not error unless the statutory maximum was exceeded. Defendant had a prior felony drug conviction, so the statutory maximum for his offense was increased from 20 to 30 years under § 841(b)(1)(C). Thus, his 262-month fell within the heightened statutory maximum. Defendant’s claim that prior convictions should be decided by a jury was expressly foreclosed by Almendarez-Torres v. U.S., 523 U.S. 224 (1998). Apprendi did not overrule Almendarez-Torres. U.S. v. Wilson, 244 F.3d 1208 (10th Cir. 2001).
10th Circuit holds that Apprendi is not applicable to Sentencing Guidelines. (120) Citing Justice O’Connor’s dissent in Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant argued that the case overruled the Federal Sentencing Guidelines. The Tenth Circuit disagreed. A dissenting opinion does not constitute binding precedent. More importantly, the Supreme Court majority “specifically avoided disrupting the use or adequacy of the Sentencing Guidelines” by affirmatively stating in Apprendi “[t]he Guidelines are, of course, not before the Court. We therefore express no view on the subject beyond what this Court has already held.” U.S. v. Jackson, 240 F.3d 1245 (10th Cir. 2001).
10th Circuit holds that sentence based on drug quantity not alleged in the indictment required resentencing. (120) The indictment charged defendant with distributing crack in violation of 21 U.S.C. § 841(a)(1), but did not specify the amount involved. The district court sentenced her to 360 months’ imprisonment pursuant to § 841(b)(1)(A). The Seventh Circuit initially rejected her appeal, but the Supreme Court remanded for further consideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). After Apprendi, a trial court may not use § 841(b)(1)(A) or § 841(b)(1)(B) for sentencing without drug quantity being charged in the indictment. Because the indictment did not allege drug quantity, the Seventh Circuit held that the court erred in imposing a 30-year sentence. Since defendant had no prior felony drug convictions, the maximum sentence she could receive under § 841(b)(1)(C) for an offense involving an unspecified drug quantity was 20 years. The indictment error was not subject to harmless error analysis. “The error … is best characterized as sentencing in excess of the statutory maximum penalty applicable to the offense of conviction.” However, the court’s failure to require the jury to determine drug type and quantity was harmless error, since defendant stipulated to a quantity of cocaine base at trial (24.36 grams) sufficient to support a sentence of up to 40 years under § 841(b)(1)(B). No reasonable jury could have rationally concluded that defendant was guilty of the charged offenses, but that the amount of crack possessed was less than five grams. U.S. v. Jackson, 240 F.3d 1245 (10th Cir. 2001).
10th Circuit holds that Apprendi error did not violate substantial rights. (120) Defendant argued that because the jury did not make a specific finding as to the amount of cocaine he possessed, his conviction and sentences should be overturned, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Tenth Circuit agreed that defendant’s sentence was in error, and the error was plain. However, no substantial rights were affected, because defendant was sentenced to 14 years, well below the 20-year limit in § 841(b)(1)(C) for offenses involving an unspecified quantity of cocaine. Therefore, no reversal was necessary. In addition, the district court did not err in considering drugs amounts as aggravating factors in establishing defendant’s offense level under the guidelines. Not all facts that affect a defendant’s sentence are essential elements, requiring prosecutorial proof and a jury finding. “Judges may still ascertain drug quantities by a preponderance of the evidence for the purpose of calculating offense levels under the Sentencing Guidelines, so long as they do not sentence above the statutory maximum for the jury.” U.S. v. Heckard, 238 F.3d 1222 (10th 2001).
10th Circuit finds no Apprendi error where sentence fell within range for unspecified drug quantity. (120) In Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Although defendant’s indictment did not allege drug quantity, the Tenth Circuit found that it was legally sufficient because his 121-month sentence fell within the 240-month statutory maximum for an offense involving an unspecified quantity of cocaine base. See 21 U.S.C. § 841(b)(1)(C). “A district court may not impose a sentence in excess of the maximum set forth in 21 U.S.C. § 841(b)(1)(C) unless the benchmark quantity of cocaine base for an enhanced penalty is alleged in the indictment in addition to being submitted to the jury and proven beyond a reasonable doubt.” U.S. v. Jones, 235 F.3d 1231 (10th Cir. 2000). Moreover, defendant’s concurrent five-year terms of supervised release did not violate Apprendi because they were within the minimum statutory range. Section 841(b)(1)(C) provides for a minimum of three years’ supervised release, and consistent with this, the guidelines authorize a term of not less than three years and not more than five years. USSG § 5D1.2. U.S. v. Thompson, 237 F.3d 1258 (10th Cir. 2001).
10th Circuit holds that Apprendi does not apply to prior convictions. (120) Because defendant had three prior felony convictions, the penalty for defendant’s felon in possession offense increased from a maximum of ten years to a mandatory minimum sentence of 15 years. See 18 U.S.C. § 924(e). Defendant argued that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), required that prior convictions be charged, treated as elements of the offense, instructed upon, and proven to a jury. The Tenth Circuit disagreed, since Almendarez-Torres v. United States, 523 U.S. 224 (1998) held that prior convictions are mere sentence enhancements, not elements of the offense. The Apprendi majority did not overrule Almendarez-Torres, expressly carving out an exception for previous convictions: “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 120 S.Ct. 2362-62. U.S. v. Dorris, 236 F.3d 582 (10th Cir. 2000).
10th Circuit says Apprendi does not bar use of relevant drugs if sentence falls within statutory maximum. (120) Agreeing with every other circuit interpreting Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the Tenth Circuit ruled that, under § 841(b)(1), the quantity of drugs is a fact that may “increase[] the penalty for a crime beyond the prescribed statutory maximum” and therefore “must be submitted to a jury” and proved beyond a reasonable doubt. The failure to require specific jury findings regarding the quantity of cocaine involved in defendant’s offense constituted a “plain or obvious error.” However, defendant was not prejudiced by this error. At trial, the government chemist described a total of 44.6 grams of crack, enough to trigger the five to 40 year term in § 841(b)(1)(B) for offenses involving more than five grams of crack. Defendant’s 360-month sentence fell within that statutory maximum. Defendant admitted that he possessed this crack. Defendant’s sentence was properly based upon consideration of drugs quantities beyond the offense of conviction. “As long as the defendant’s sentence falls within the maximum established by statute, Apprendi does not foreclose consideration of drug quantities beyond the offense of conviction.” U.S. v. Hishaw, 235 F.3d 565 (10th Cir. 2000).
10th Circuit holds that failure to comply with Apprendi not plain error. (120) Defendant argued for the first time on appeal that since drug quantity was not determined by the jury, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), his sentence could not exceed the maximum statutory range for an undetermined amount of marijuana, specifically five years’ imprisonment under 21 U.S.C. § 841(b) (1)(D). The Tenth Circuit agreed with other circuits that Apprendi applies to drug quantities under § 841(b). Since defendant did not raise this issue below, however, he had to show that failure to comply with Apprendi constituted plain error. The first two requirements for plain error were met: there was actual error, and the error was plain or obvious. However, the error did not affect defendant’s substantial rights because he could not establish prejudice. To demonstrate prejudice, the evidence must suggest a reasonable doubt on drug quantity. The evidence of defendant’s involvement with Hodges’ growing operation over time was overwhelming. The explanation Hodges gave for the discrepancy in his debriefing and the 150 pounds he testified to at trial went unchallenged. Moreover, Anderson’s testimony was highly corroborative of Hodges’ testimony about the relationship between Hodges and defendant. Because the evidence of drug quantity was overwhelming, there was no plain error. U.S. v. Keeling, 235 F.3d 533 (10th Cir. 2000).
10th Circuit holds that drug quantity is element of offense if it exposes defendant to increased maximum. (120) Defendant’s indictment did not allege the amount of cocaine base involved in either count. Section 841(b)(1) (C) authorizes a maximum sentence of 20 years for offenses involving an unspecified quantity of cocaine. At sentencing, the court found that 165.5 grams of cocaine base were involved in both offenses and sentenced defendant under § 841(b) (1)(A), which authorizes a maximum term of life imprisonment. On defendant’s first appeal, U.S. v. Jones, 194 F.3d 1178 (10th Cir. 1999), the Tenth Circuit rejected defendant’s argument that drug quantity was an element of the offense. The Supreme Court vacated and remanded for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). On remand, the Tenth Circuit held that drug quantity involved in a violation of § 841 is an essential element of the offense if that fact exposes the defendant to a heightened maximum sentence under § 841(b)(1)(A) or (B). A district court may not impose a sentence in excess of the maximum in § 841(b)(1)(C) unless the benchmark quantity of cocaine base for an enhanced penalty is alleged in the indictment in addition to being submitted to the jury and proven beyond a reasonable doubt. See U.S. v. Crockett, 812 F.2d 626 (10th Cir. 1987). Defendant’s 30-year sentence improperly exceeded the statutory maximum applicable to the offense alleged in the indictment. Although the sentence fell below the 40 years defendant could receive if the court imposed two consecutive 20-year sentences, the error was not harmless. The relevant inquiry is the constitutionality of the sentence imposed on each individual count. U.S. v. Jones, 235 F.3d 1231 (10th Cir. 2000).
10th Circuit holds that failure to separately charge aggravated felony conviction did not violate Apprendi. (120) In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that the enhanced penalties in 8 U.S.C. § 1326(b)(2) for aliens who re-enter the United States after deportation following an aggravated felony conviction did not describe a separate offense but merely a sentencing factor. The Tenth Circuit held that Almendarez-Torres was not overruled by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (any fact other than a prior conviction that increases the penalty beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt). The Supreme Court in Apprendi chose not to overrule Almendarez-Torres, and unmistakably carved out an exception for “prior convictions.” Because the fact of defendant’s prior aggravated felony conviction was not an element of the offense, the indictment in this case, which did not separately charge defendant with a prior aggravated felony conviction, did not violate defendant’s constitutional rights. U.S. v. Martinez-Villalva, 232 F.3d 1329 (10th Cir. 2000).
10th Circuit finds court’s reference to defendant’s failure to testify at sentencing was harmless error. (120) Several times during defendant’s sentencing hearing, the district court took notice of the fact that defendant chose not to testify to rebut the testimony of two witnesses. The court also incorrectly decided that defendant had waived his Fifth Amendment right against self‑incrimination by pleading guilty. The Tenth Circuit held that the court’s reference to defendant’s failure to testify at sentencing was harmless error. The Fifth Amendment continued to protect defendant during sentencing because his testimony could have subjected him to further criminal liability. However, the error was harmless because the court would have reached the same determination of drug quantity, possession of a firearm and supervisory role absent the error. All of the evidence in the record supported the court’s findings on these issues. U.S. v. Garcia, 78 F.3d 1457 (10th Cir. 1996).
10th Circuit upholds refusal to rely on stipulated facts that did not fully reflect conduct. (120) Defendant and the government agreed that he was responsible for between 100 and 500 grams of cocaine. However, the PSR reported that two witnesses said defendant had delivered far more cocaine. The judge then held a series of hearings to address this discrepancy. Despite the government’s claim that these two witnesses were not credible, the court held defendant accountable for the additional cocaine. Defendant argued that the district court violated separation of powers principles by refusing to honor the stipulations regarding drug quantity and credibility of the two witnesses. The Tenth Circuit approved the district court’s actions, since a sentencing court may decline to follow a sentencing recommendation when it finds the stipulated facts do not accurately reflect all of defendant’s relevant conduct. The judge had an obligation under the guidelines to consider whether the stipulated facts accurately reflected all relevant conduct. U.S. v. Garcia, 78 F.3d 1457 (10th Cir. 1996).
10th Circuit upholds acceptance of responsibility provisions against 5th and 6th Amendment challenges. (120) Defendant argued that the acceptance of responsibility provisions of the guidelines violate the 5th and 6th Amendments by requiring him to plead guilty to all of the charges against him in order to obtain the benefit of a reduction. Defendant claimed that he clearly accepted responsibility for a drug trafficking charge, but was denied the reduction because he did not accept responsibility for a firearms charge. The 10th Circuit rejected this claim. “The denial of a downward adjustment under § 3E1.1 does not constitute a penalty or an enhancement of sentence.” There is a difference between increasing the severity of a sentence for failure to demonstrate remorse and refusing to grant a reduction from the prescribed base offense level. U.S. v. Ross, 920 F.2d 1530 (10th Cir. 1990).
10th Circuit upholds constitutionality of acceptance of responsibility provisions. (120) Defendant contended that the acceptance of responsibility provisions of the sentencing guidelines violated his 5th Amendment privilege against self-incrimination. Following its decision in U.S. v. Rogers, 899 F.2d 917 (10th Cir. 1990), the 10th Circuit rejected this argument without discussion. The court also rejected defendant’s contention that the guidelines violate equal protection because they impose different sentences on defendants convicted of the same crime. Giving defendants who accept responsebility for their conduct lighter sentences than unrepentant defendants is rationally related to the government’s legitimate interest in rehabilitating convicted criminals. U.S. v. Mayes, 917 F.2d 457 (10th Cir. 1990).
11th Circuit says prosecutor’s ability to seek mandatory life sentence did not violate separation of powers. (120) Defendant argued that the combination of 18 U.S.C. § 3559(c) and 21 U.S.C. § 851, which subjected him to a mandatory life sentence, violated separation of powers principles by giving the executive branch “the power to prosecute and the power to sentence.” His argument was based on the fact that the mandatory life sentence under § 3559(c) applies only if the government chooses to file a notice of prior convictions under § 851. The Eleventh Circuit disagreed, noting that its sister circuits have routinely held that § 3559 does not violate separate of powers principles. U.S. v. Harris, 741 F.3d 1245 (11th Cir. 2014).
11th Circuit rules that judicial fact-findings of prior convictions did not violate Alleyne. (120) Defendant was convicted of Hobbs Act robberies and possessing and using firearms during those robberies. Under 18 U.S.C. § 3559(c), a defendant convicted of a serious violent felony, who has previously been convicted of a combination of two or more serious violent felonies or serious drug offenses, is subject to a mandatory sentence of life imprisonment. Defendant argued for the first time on appeal that Alleyne v. U.S., 133 S.Ct. 2151 (2013), prohibited the sentencing court from considering his prior convictions because the jury did not find that he committed those crimes. The Eleventh Circuit disagreed. Alleyne did not address whether a sentence can be increased because of prior convictions without a jury finding the fact of those convictions. That question continues to be governed by Almendarez–Torres v. U.S., 523 U.S. 224 (1998), which held that the fact of a prior conviction is not an “element” that must be found by a jury. Under Almendarez–Torres, prior convictions are excepted from the general rule that a jury must find any fact that will increase the penalty for an offense. U.S. v. Harris, 741 F.3d 1245 (11th Cir. 2014).
11th Circuit finds any Alleyne error harmless where evidence of brandishing firearm was overwhelming. (120) Defendant was convicted of using and carrying a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A). He argued for the first time on appeal that the district court unconstitutionally increased his statutory minimum sentence from five to seven years based on the judicially-found fact that he brandished a firearm. While defendant’s appeal was pending, the Supreme Court decided Alleyne v. U.S., 133 S.Ct. 2151 (2013), which held that any fact that increases a defendant’s mandatory minimum sentence is an element of the offense that must be submitted to the jury and proved beyond a reasonable doubt. The Eleventh Circuit held that, even assuming error under Alleyne, defendant was not entitled to correction of the error because he did not satisfy the fourth prong of plain error review. Under Alleyne, where the evidence of a statutory element of an offense is overwhelming and essentially uncontroverted, the error does not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. Here, the evidence that defendant brandished a firearm was overwhelming. U.S. v. McKinley, 732 F.3d 1291 (11th Cir. 2013).
11th Circuit rejects equal protection challenge to mandatory minimum statute. (120) Under 18 U.S.C. § 3559(c), a defendant convicted of a “serious violent felony” who has prior convictions for specified “serious violent felonies” is subject to a mandatory life sentence. The statute defines “serious violent felony” to include robbery and certain felonies involving the use of force, but it also states that those offenses are not “serious violent felonies” if they did not involve use of a firearm or result in death or serious bodily injury. Defendant had a prior conviction for escape that qualified as a “serious violent felony.” He argued that § 3559(c) violated the Equal Protection Clause because it did not allow him to show that the offense did not involve use of a firearm or result in death or serious bodily injury. The Eleventh Circuit found that argument frivolous because § 3559(c) allows a defendant with a prior conviction for an offense other than robbery to show that an offense that otherwise qualifies a “serious violent felony” did not involve a firearm or result in death or serious bodily injury. U.S. v. Sanchez, 586 F.3d 918 (11th Cir. 2009).
11th Circuit rules Booker and Kimbrough did not overcome limits on § 3582(c)(2) sentence reductions. (120) In 2004, defendant pled guilty to crack cocaine charges. In 2008, he filed a motion to reduce his sentences under 18 U.S.C. § 3582(c)(2) based on the amended crack guidelines. Section 3582(c)(2) precludes reduction of a sentence in a manner inconsistent with any applicable policy statements issued by the Sentencing Commission. Guideline § 1B1.10(b) (1) instructs courts not to reduce a sentence below the amended guideline range. Nonetheless, defendant also asked the court for reduced sentences that were lower than the amended guideline range, arguing that Booker and Kimbrough rendered all guidelines advisory only, even in a § 3582(c)(2) setting. The district court agreed, and reduced defendant’s sentences below his applicable guideline range after the crack amendments. The Eleventh Circuit reversed, holding that Booker and Kimbrough do not eliminate the limits on sentence reductions under § 3582(c)(2). U.S. v. Melvin, 556 F.3d 1190 (11th Cir. 2009).
11th Circuit rejects equal protection challenge to mandatory minimum statute. (120) Under 18 U.S.C. § 3559(c), a defendant convicted of a “serious violent felony” who has prior convictions for specified “serious violent felonies” is subject to a mandatory life sentence. The statute defines “serious violent felony” to include robbery and certain felonies involving the use of force, but it also states that those offenses are not “serious violent felonies” if they did not involve use of a firearm or result in death or serious bodily injury. Defendant had a prior conviction for escape that qualified as a “serious violent felony.” He argued that § 3559(c) violated the Equal Protection Clause because it did not allow him to show that the offense did not involve use of a firearm or result in death or serious bodily injury. The Eleventh Circuit found that argument frivolous because § 3559(c) allows a defendant with a prior conviction for an offense other than robbery to show that an offense that otherwise qualifies a “serious violent felony” did not involve a firearm or result in death or serious bodily injury. U.S. v. Sanchez, 586 F.3d 918 (11th Cir. 2009).
11th Circuit holds that retroactive application of Booker on resentencing did not violate due process. (120) After defendant was sentenced, and the appellate court remanded his case for resentencing, the Supreme Court decided Booker. At resentencing, the district court applied the guidelines in an advisory manner and imposed an above-guideline sentence. Defendant argued that the court’s ex post facto application of Booker to his detriment at resentencing violated his due process rights. In Booker, the Supreme Court held that its remedial holding, making the guidelines advisory, was to be applied to cases pending on direct review. The Eleventh Circuit found no due process violation. Although the mandatory guidelines were in place at the time of defendant’s criminal conduct, the U.S. Code was the source of the maximum sentence, not the guidelines. See U.S. v. Duncan, 400 F.3d 1297 (11th Cir. 2005). Booker was an intervening change in the law making mandatory application of the guidelines unlawful. In addition, the terms of defendant’s plea deal made clear that the court had the authority to impose a sentence up to the statutory maximum of 40 years. U.S. v. Amedeo, 487 F.3d 873 (11th Cir. 2007).
11th Circuit holds that application of remedial portion of Booker opinion did not violate ex post facto clause. (120) Defendant argued that the court erred when it based his sentence upon facts that were not conceded at trial nor proved to a jury beyond a reasonable doubt. The court then compounded this error, defendant argued, when it sentenced him under the so-called remedial portion of the Booker opinion. Booker found that the section of the Sentencing Reform Act which made the guidelines mandatory was unconstitutional. Rather than invalidate the entire Act, the Court excised that section, making the guidelines effectively advisory. The Eleventh Circuit noted that it has repeatedly rejected the argument that the application of the remedial portion of Booker to conduct that occurred prior to Booker violates ex post facto principles or a due process right. See U.S. v. Thomas, 446 F.3d 1348 (11th Cir. 2006). It has also held that a court may make additional factual findings under a preponderance of the evidence standard, that go beyond the facts found by the jury, as long as the court recognizes the guidelines are advisory. The court here properly applied the guidelines as advisory. U.S. v. Dean, 487 F.3d 840 (11th Cir. 2007).
11th Circuit holds that 100:1 sentencing ratio does not violate separation of powers principles. (120) Defendant argued that the application of the 100:1 crack cocaine to powder cocaine sentencing ratio violated separation of powers principles by reposing judicial power in the executive branch. The Eleventh Circuit disagreed. After Booker, the district court must correctly calculate the guidelines range, including applying § 2D1.1, but ultimately has the discretion to impose a sentence above or below that range based on the factors listed in § 3553(a). The court may not consider as one of those factors § 2D1.1(c)’s disparate treatment of crack and cocaine. This case no more involved a violation of separation of powers than a regime that allows the prosecutor to choose the charge or one that permits but does not compel, a prosecutor to file an enhancement under § 851. Congress has created a sentencing scheme within its authority, and within that scheme, the prosecution and the judicial continue to perform their traditional roles. Neither has assumed power belonging to the other. U.S. v. Pope, 461 F.3d 1331 (11th Cir. 2006).
11th Circuit holds that court may determine, on a case-by-case basis, the weight to give the guidelines. (120) At sentencing, the district court found that it should “give considerable weight to the guidelines in this case,” and found “no substantial reason to depart from those guidelines or to impose a non-guideline sentence in this particular case.” Defendant argued that the court’s reference to “substantial” and “considerable weight” indicated an excessive reliance on the guidelines that was inconsistent with the role the guidelines should play in a post-Booker world. The Eleventh Circuit held that a district court may determine, on a case-by-case basis, the weight to give the guidelines, so long as that determination is made with reference to the remaining § 3553(a) factors that the court must also consider in calculating the defendant’s sentence. Here, while the court made some statements that could be interpreted as presumptions in favor of the guidelines, the court ultimately considered that the guidelines were worthy of deference in that particular case. The court’s decision to defer to the guidelines was ultimately a case-specific one and was based on the consideration of the § 3553(a) factors. U.S. v. Hunt, 459 F.3d 1180 (11th Cir. 2006).
11th Circuit holds that failure to adjust for disparity with fast-track sentences did not make sentence unreasonable. (120) Defendant pled guilty to illegal reentry into the U.S. after deportation. He argued that the district court erroneously denied him a four-level downward departure under the early disposition program, see U.S.S.G. § 5K3.1, because the use of the program in some districts and not others created sentencing disparities in violation of § 32553(a)(6) and the constitutional guarantee of equal protection. The Eleventh Circuit disagreed. Any disparity created by § 5K3.1 does not fall within the scope of § 3553(a)(6). When Congress directed the Sentencing Commission to allow the departure for only participating districts, Congress implicitly determined that the disparity was warranted. The court’s refusal to grant defendant the benefit of a § 5K3.1 departure, as a matter of equal protection, did not constitute plain error (although the court did not go so far as to say the disparity did not violate equal protection). Defendant was unable to identify any precedent that has held that the limited availability of the fast-track departure violates equal protection. U.S. v. Castro, 455 F.3d 1249 (11th Cir. 2006).
11th Circuit holds that 23-level downward departure resulting in seven-day sentence was unreasonable. (120) Defendant, a former executive of a large health care corporation, pled guilty to a variety of securities and mail fraud charges. Both parties agreed defendant’s advisory guideline range was 108-135 months’ imprisonment, and that his substantial assistance to the government warranted a § 5K1.1 downward departure. The government recommended a departure to 42 months’ imprisonment, which equated to a nine-level departure. Instead, the court granted defendant a 23-level departure and imposed a sentence of seven days’ imprisonment. The Eleventh Circuit held that the departure and resulting sentence were not reasonable. Although defendant’s cooperation might have been extraordinary, it was “not a get-out-of-jail free card.” Moreover, the court misinterpreted § 5K1.1(a)(4), which permits a court to consider whether the defendant suffered “any injury,” or “any danger or risk of injury to the defendant or his family resulting from his assistance.” The injury does not, as the court appeared to believe, include defendant’s civil liability to the victims of his fraud. The length of the sentence was shockingly short, and wholly failed to take into account the nature and circumstances of the offense and the need for the sentence to reflect the seriousness of crime. See 18 U.S.C. § 3553(a)(1), (a)(2)(A). The panel remanded to a different judge, in light of several other cases in which the court reversed the same judge for extraordinary downward departures. U.S. v. Martin, 455 F.3d 1227 (11th Cir. 2006).
11th Circuit holds that five-hour sentence for fraud defendant was unreasonable. (120) As the comptroller of a corporation, defendant participated in a fraudulent scheme that bilked a bank out of nearly half a million dollars. The government moved for a downward departure based on defendant’s assistance in the prosecution of the company’s president. When the court indicated its intent to sentence defendant to probation, the government pointed out that the law required incarceration. The district court modified the sentence to five hours in custody. The Eleventh Circuit held that the five hour sentence was unreasonable. In deciding how much to depart on substantial assistance grounds, the court not only considered the need for restitution, but it gave that factor controlling weight. The court did not discuss any of the § 5K1.1(a) assistance-related factors, such as the significance and usefulness of the assistance, or the nature and extent of the assistance. In addition, the leap from the post-departure guideline range of 6-12 months down to five hours was excessive. The court imposed the sentence to evade the strictures of the law forbidding a probationary sentence. However, the sentence was not a real sentence of incarceration, and violated 18 U.S.C. § 3561(a) (probation may not be imposed for Class B felony). Five hours imprisonment for an offense that caused almost half a million dollars in loss was unreasonable. U.S. v. Crisp, 454 F.3d 1285 (11th Cir. 2006).
11th Circuit upholds sentence less than half of bottom of advisory guideline range. (120) Defendant was convicted of distribution of child pornography, in violation of 18 U.S.C. §§ 2252A (a)(2)(A) and (b)(1). Although his advisory guideline range was 151-188 months, the district court imposed a sentence of 72 months. The Eleventh Circuit held that under the circumstances, a sentence of less than half of the low end of the advisory guideline range was reasonable. The court gave specific valid reason for its low sentence. The court’s statements indicated that it took into account defendant’s age (64 years old), his prior minimal criminal record (never molested a child and a few matters too old to be included in his criminal history) and his medical condition (depression, multiple attempts to commit suicide and a heart condition). These were all valid considerations because they related to the “history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). The court weighed these against “the nature and circumstances of the offense” and decided to impose a non-guidelines sentence. There was no indication that the court imposed the lower sentence solely because it disagreed with the guidelines. U.S. v. Gray, 453 F.3d 1323 (11th Cir. 2006).
11th Circuit approves above guideline sentence to defendant who sold driver’s licenses to illegal immigrants. (120) Defendant was involved in a scheme to issue fraudulent driver’s licenses to illegal immigrants in South Florida. The district court found that the advisory guideline range of 15-21 months’ imprisonment failed to adequately deter or protect the public from future crimes. The court found a 42-month sentence would be adequate, but then, granting the government’s § 5K1.1 motion for a substantial assistance departure, imposed a sentence of 28 months. The Eleventh Circuit held that the sentence was reasonable. The court was concerned with (1) the egregious nature of the offense, based on its potential impact on national security; (2) defendant’s sales of license renewals to those who were unable to obtain them post 9/11 resulted in the provision of licenses to the very people Congress wanted to subject to greater regulation in the name of national security; and (3) there were no safeguards to prevent defendant from returning to this market after his release from prison. The court’s “careful consideration” of the § 3553(a) factors was not unreasonable. U.S. v. Valnor, 451 F.3d 744 (11th Cir. 2006).
11th Circuit holds that Blakely/Booker did not prevent court from sentencing defendant as career offender. (120) The district court found that under Blakely v. Washington, 542 U.S. 296 (2004), it could not classify defendant as a career offender because the government did not prove to a jury the nature of defendant’s prior conviction or the fact that defendant was at least 18 years old at the time he committed the offense. The Eleventh Circuit held that neither Blakely nor its later decision in U.S. v. Booker, 543 U.S. 220 (2005) prevented the court from considering defendant’s prior conviction, determining his age at the time he committed the current offense, and designating him a career offender. The court’s refusal to account for defendant’s prior felony drug convictions when determining his guidelines sentence was an error of law, based on a misinterpretation of Blakely. Under Almendarez-Torres v. U.S., 523 U.S. 224 (1998), judicial fact-finding of a defendant’s prior conviction does not violate the Sixth Amendment, and while the Supreme Court criticized this prior-conviction exception, the case is still good law. Additionally, it is a question of law whether the prior convictions are felony controlled substance offenses for § 4B1.1 purposes. On remand, the court need not impose the sentence suggested by the guidelines. However, the court must “consider” the guideline sentencing range and provide reasons if it imposes a sentence other than the one suggested by the guidelines. U.S. v. Gibson, 434 F.3d 1234 (11th Cir. 2006).
11th Circuit rules that government failed to establish that Booker error was harmless. (120) The district court committed constitutional Booker error by finding that defendant possessed a stolen firearm – a fact neither admitted by him nor found by a jury – and imposing a two-level enhancement under a mandatory guideline system. Defendant preserved his claim of Booker error; therefore, the government had the burden of proving beyond a reasonable doubt that the error was harmless. The Eleventh Circuit ruled that the government could not meet this burden simply by showing that the court imposed a sentence at the top of the guideline range. Rather, the government must at least point to a statement by the court indicating it would have imposed the same or a higher sentence if it had possessed the discretion to do so. The court’s assertion that a sentence at the high end of the guideline range was appropriate was not sufficient. U.S. v. Cain, 433 F.3d 1345 (11th Cir. 2005).
11th Circuit finds Booker error harmless where court stated maximum sentence was necessary to prevent future harm. (120) Section 2G2.2(b)(4) provides for a five-level enhancement where “the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” The government conceded that the district court committed constitutional and statutory Booker error when it applied this enhancement under a mandatory guideline scheme based upon facts that were not admitted by defendant or found by a jury. The Eleventh Circuit found that the error was harmless. The district court sentenced defendant to 240 months, the statutory maximum, and a lifetime of supervised release, commenting that defendant was “going to endanger the lives of young children in the future,” and needed to be “taken out of society so it can be prevented.” It was clear beyond a reasonable doubt that the district court would not have imposed a lesser sentence under an advisory guidelines scheme, and the Booker error was harmless. U.S. v. Moriarty, 429 F.3d 1012 (11th Cir. 2005).
11th Circuit says Booker error was harmless where court stated it would have imposed same sentence if guidelines were advisory. (120) Defendants contended that their sentences were improperly based upon facts not admitted nor found by jury verdict. The Eleventh Circuit found any error harmless. The district court explicitly stated that it would have given defendant the same sentence whether the guidelines were mandatory or advisory. The court expressly considered the 18 U.S.C. § 3553(a) sentencing factors when composing its alternative, non-guideline sentence. The government carried its burden of showing that the constitutional error was harmless beyond a reasonable doubt. U.S. v. Lee, 427 F.3d 881 (11th Cir. 2005).
11th Circuit says court imposing post-Booker sentence need not specifically address and analyze each § 3553 factor. (120) Defendant was convicted of a variety of charges relating to his correspondence with, and eventual travel to, an undercover agent posing as a parent willing to have other adults have sex with his children. His guidelines range was 135-168 months’ imprisonment. The district court rejected defendant’s request for a sentence below the advisory guidelines range, and imposed a 135-month sentence. The Eleventh Circuit affirmed. The district court considered the § 3553(a) factors, although the court did not specifically address and analyze each of the factors defendant raised. Nothing in Booker or elsewhere requires the district court state on the record that it has explicitly considered each of the 3553(a) factors or to discuss each of these factors. The 135-month sentence, which was at the bottom of the guideline range, was reasonable. U.S. v. Scott, 426 F.3d 1324 (11th Cir. 2005).
11th Circuit holds that defendants established that constitutional Booker errors affected substantial rights. (120) Defendants raised their Booker claims for the first time on appeal. The Eleventh Circuit found that both defendants met their heavy burden of demonstrating that the Booker errors affected their substantial rights. At several points, the district court expressed its dissatisfaction with the sentence it was imposing on the first defendant, noting that the sentence was “severe” and asking “whether this is really the kind of defendant Congress intended to be looking at 360 months as a minimum.” The court also noted that the sentence it was required to impose was not a “fair sentence.” As to the other defendant, the court expressed similar sentiments, announcing that it continued to have similar concerns “with regard to the length of a sentence for a first offense.” However, it would not “fudge” with the guidelines just to impose a sentence it found “more palatable.” U.S. v. Thompson, 422 F.3d 1285 (11th Cir. 2005).
11th Circuit directs resentencing on entire sentencing package where sentence on one count exceeded statutory maximum. (120) Defendant was convicted of identity theft involving a fraudulent driver’s license, in violation of 18 U.S.C. § 1028(a)(23) and fraudulent credit cards, in violation of 18 U.S.C. § 1029 (a)(2). The district court sentenced defendant to concurrent terms of 150 months on the first count and 120 months on the second. The sentence on the first count exceeded the three-year statutory maximum for the § 1028(a)(3) offense. The Eleventh Circuit remanded so that the court could resentence defendant within the proper statutory maximum for count I. It noted, however, that defendant was convicted of two interconnected crimes, and that on remand the judge will recalculate and reconsider defendant’s “entire sentencing package” to determine a sentence that he determines appropriate. Resentencing was also required because of Booker error. The judge made clear that he felt that the sentence he was constrained to give under the Sentencing Guidelines was insufficient to punish defendant for the identity crimes that he had committed, complete with the ramifications of his criminal acts. Since the guidelines are now advisory, the Booker error was obvious. U.S. v. Klopf, 423 F.3d 1228 (11th Cir. 2005).
11th Circuit says error in applying mandatory guidelines was harmless. (120) Defendant contended that the district court erred under U.S. v. Booker, 543 U.S. 220 (2005) when it sentenced him under a mandatory guideline system. The Eleventh Circuit found that the statutory error was harmless, given the district court’s statements that defendant’s best interests were served by applying the Sentencing Guidelines and that defendant was at risk of an upward departure. When defendant made an objection based on Blakely v. Washington, 542 U.S. 296 (2004) that the guidelines were unconstitutional, the court questioned the wisdom of defendant’s objection, implying that it might impose a higher sentence if the guidelines were not in effect. When defendant asked the court to forgive him and explained that he broke the law to help support his daughter, the court explained that defendant was at risk of an upward departure, and such a departure would be a certainty if he again illegally reentered the U.S. U.S. v. Mejia-Giovani, 416 F.3d 1323 (11th Cir. 2005).
11th Circuit holds enhancement for prior conviction did not implicate Booker. (120) Defendant argued that the district court violated U.S. v. Booker, 543 U.S. 220 (2005) when it imposed a 16-level enhancement under § 2L1.2 (b)(1)(A)(i) based on his prior drug trafficking conviction. The Eleventh Circuit disagreed, since there is no Sixth Amendment violation when a district court enhances a sentence based on prior convictions, including those specified in § 2L1.2 (b)(1)(A). Since the district court’s enhancement of defendant’s sentence under § 2L1.2(b)(1)(A) involved a determination that defendant had prior convictions, the enhancement did not violate Booker. U.S. v. Phillips, 413 F.3d 1288 (11th Cir. 2005).
11th Circuit holds that Booker challenge raised for first time in petition for rehearing en banc was not timely. (120) Defendants were convicted of RICO offenses. They first challenged the constitutionality of their sentences in petitions for rehearing en banc. In these petitions, defendants argued that the Supreme Court’s opinion in Blakely v. Washington, 124 S.Ct. 2531 (2005) invalidated their sentences. Defendants contended that they failed to raise this issue in their initial briefs because circuit precedent at the time categorically precluded an Apprendi-type challenge. The Eleventh Circuit held that the Blakely/ Booker challenge was not timely raised. Defendants’ failure to make their argument in their initial brief was not excused by the fact that our precedent was then to the contrary. Even if precedent at the time foreclosed their argument, defendants still had to raise this issue in their initial brief and assert that the precedent was wrongly decided in order for the appellate court to consider it. U.S. v. Pipkins, 412 F.3d 1251 (11th Cir. 2005).
11th Circuit says Booker error was harmless where court stated it would impose same sentence even if guidelines were unconstitutional. (120) Defendant pled guilty to drug charges. Over defendant’s objection, the district court included some additional drugs that it found was relevant conduct in its sentencing calculation, resulting in a higher sentence than it otherwise could have imposed given the facts admitted by defendant. The district court imposed a 24-month sentence under a mandatory guidelines scheme. However, the court stated that it would impose the same sentence whether Blakely invalidated the guidelines or not. In light of U.S. v. Booker, 543 U.S. 220 (2005), defendant argued that the district court erred in sentencing him under the mandatory guideline scheme. The Eleventh Circuit agreed that the court erred, but found that the government met its burden of showing that the error was harmless beyond a reasonable doubt. The district court stated its sentence would be the same even if the guidelines were only advisory. Thus, the panel could know with certainty beyond a reasonable doubt what the district court would do upon remand. When an error does not change the achieved result, it is harmless. U.S. v. Robles, 408 F.3d 1324 (11th Cir. 2005).
11th Circuit says Booker did not alter its review of application of guidelines. (120) Defendant’s appeal did not raise any issue of a Sixth Amendment violation, as explicated by U.S. v. Booker, 543 U.S. 220 (2005), and neither party raised any issue of the application of the guidelines in a mandatory, rather than advisory, fashion. The Eleventh Circuit held that Booker did not alter its review of the application of the guidelines. Although Booker established a “reasonableness” standard for the sentence finally imposed on a defendant, the Supreme Court concluded in Booker that the district courts must still consider the guidelines in determining a defendant’s sentence. Nothing in Booker suggests that a reasonableness standard should govern review of the interpretation and application as advisory of the guidelines by a district court. After Booker, courts remain obliged to “consult” and “take into account” the guidelines. This consultation requirement, at a minimum, obliges the district court to calculate correctly the sentencing range prescribed by the guidelines. U.S. v. Crawford, 407 F.3d 1174 (11th Cir. 2005).
11th Circuit says government could not prove Booker error was harmless. (120) Because defendant’s sentence was enhanced, under a mandatory guidelines system, based on facts found by the judge and not admitted by him, defendant’s right to trial by jury was violated. The Eleventh Circuit ruled that the government did not meet its burden of showing that the error was harmless. It was evident from the sentencing transcript that had the district court used the guidelines in an advisory fashion, defendant’s sentence would have been shorter. Defendant was sentenced to 10 months, but the district court stated that, if the guidelines had been declared unconstitutional he would have sentenced defendant to a term of six months’ imprisonment. U.S. v. Paz, 405 F.3d 946 (11th Cir. 2005).
11th Circuit rules that defendant did not preserve Booker error. (120) Defendant raised a number of challenges to her sentence, including a claim that her sentence was unconstitutional in light of U.S. v. Booker, 543 U.S. 220 (2005). The Eleventh Circuit concluded that defendant did not make a Sixth Amendment objection in the district court which could preserve a Booker error, and therefore only reviewed for plain error. Defendant objected to the PSR’s drug quantity calculation, stating that the jury’s drug quantity verdict “under the unique facts and circumstances of this case, must be respected.” This was not a Sixth Amendment objection, but rather part of an argument that the jury accepted defendant’s affirmative defense of withdrawal from the conspiracy. There was no reference to the Sixth Amendment, or a right to have the issue of drug quantity decided by a jury rather than a judge, no citation to Apprendi or any other decision in that line of cases. Defendant could not meet the plain error standard, because he could not show that there was a “reasonable probability” of a different result if the guidelines had been applied in an advisory, rather than mandatory, manner. While the judge expressed some concern with applying the murder cross-reference, that enhancement made no difference to defendant’s sentence. Even without the murder enhancement defendant’s sentence would have been the same 20-year statutory maximum. U.S. v. Dowling, 403 F.3d 1242 (11th Cir. 2005).
11th Circuit, on remand from Supreme Court, finds defendant abandoned Booker issue. (120) On his appeal, defendant challenged a number of sentencing enhancements, but did not raise a constitutional challenge to his sentence, nor did he assert error based on Apprendi v. New Jersey, 530 U.S. 466 (2000), or any other case extending or applying the Apprendi principle. The court of appeals affirmed defendant’s sentence and he filed a motion for certiorari. The Supreme Court vacated and remanded for reconsideration in light of Booker. The Eleventh Circuit, on remand, found that defendant abandoned the Booker issue and reinstated its previous opinion. There was nothing suggesting that the court was obligated to consider an issue not raised in any of the briefs that defendant filed with it, and there was nothing in the Supreme Court’s remand order requiring the court to treat the case as though the Apprendi/ Booker issue had been timely raised. U.S. v. Dockery, 401 F.3d 1261 (11th Cir. 2005).
11th Circuit holds that Booker error in determining cocaine powder was converted to crack was not plain error. (120) Defendant argued for the first time on appeal that the special verdict by the jury, finding that the conspiracy involved only cocaine powder, precluded the district court from sentencing defendant based, in part, on its finding that some of the powder cocaine had been converted into crack cocaine. Following the plain error analysis in U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), the Eleventh Circuit held that defendant could not show that the error affected his substantial rights. Circuit precedent says a court is permitted to consider relevant conduct of which a defendant was acquitted, as long as the government proves the acquitted conduct relied on by a preponderance of the evidence. Booker did not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury verdict. Under Booker, sentencing judges can continue to consider relevant acquitted conduct when applying the guidelines in an advisory manner. The panel acknowledged that the Fourth, Sixth and Ninth Circuits have stated that defendants in the same position met plain error review and remanded for resentencing. However, it rejected those opinions, since it was bound to follow Rodriguez. U.S. v. Duncan, 400 F.3d 1297 (11th Cir. 2005).
11th Circuit remands where defendant established reasonable probability that court would have imposed lesser sentence under non-mandatory guidelines. (120) For the first time on appeal, defendant raised various challenges to his sentence under Blakely v. Washington, 542 U.S. 295 (2004) and U.S. v. Booker, 543 U.S. 220 (2005). The Eleventh Circuit found no Sixth Amendment violation because defendant admitted to the facts that enhanced his sentence. However, the court committed a Booker error when it sentenced defendant under a mandatory guideline scheme, even in the absence of a Sixth Amendment violation. The error was plain. The third prong of plain error review required defendant to demonstrate that the plain error “affected his substantial rights.” To meet this prong, U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), requires the defendant to show that there was “a reasonable probability of a different result” if the guidelines had been applied in an advisory capacity. Defendant met this standard. Several times during sentencing, the district court stated that the guidelines sentence was too severe, and that defendant’s criminal history overstated his background, and then stated that the most lenient sentence it could impose “was more than appropriate in this situation.” Finally, the fourth prong of the plain error test was satisfied – the error affected the fairness, integrity or public reputation of the judicial proceedings. U.S. v. Shelton, 400 F.3d 1325 (11th Cir. 2005).
11th Circuit says defendant sentenced at top of guideline range could not show plain error. (120) In August 2004, the Eleventh Circuit denied defendant’s motion to file a supplemental brief raising for the first time on appeal a challenge to his sentence under Blakely v. Washington, 542 U.S. 296 (2004). Here, the panel amended footnote two of the opinion to conform to the plain error analysis in U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005). Defendant could not satisfy the third prong of the plain error analysis – showing that the error affected his substantial rights. Nothing in the record suggested that there was a reasonable probability of a different result if the sentencing judge had applied the guidelines in an advisory instead of a mandatory fashion. The judge sentenced defendant to the maximum term of imprisonment permitted by the relevant guideline, an action that was “inconsistent with any suggestion that the sentencing judge might have imposed a lesser sentence if the judge had realized the guidelines were advisory.” U.S. v. Curtis, 400 F.3d 1334 (11th Cir. 2005), amending footnote 2 in U.S. v. Curtis, 380 F.3d 1311 (11th Cir. 2004).
11th Circuit holds that Blakely/Booker claim did not fall within exception to appeal waiver. (120) As part of his plea agreement, defendant waived the right to appeal his sentence with certain limited exceptions: (1) an upward departure; (2) a sentence above the statutory maximum; (3) a sentence in violation of the law apart from the Sentencing Guidelines; and (4) an appeal by the government. The Eleventh Circuit held that defendant waived the right to appeal on the basis of the Apprendi/Blakely/Booker issue since the issue did not fall within any of the listed exceptions. The term “statutory maximum” in a plea agreement permitting appeal in the limited circumstance of a sentence exceeding the statutory maximum, refers to “the longest sentence that the statute which punishes a crime permits a court to impose, regardless of whether the actual sentence must be shortened in a particular case because of the principles involved in the Apprendi/Booker line of decisions.” U.S. v. Rubbo, 396 F.3d 1330 (11th Cir. 2005). Defendant’s sentence did not exceed the relevant statutory maximum. Defendant did not allege a “violation of the law apart from the guidelines.” The appeal in effect asserted that the Sentencing Guidelines were unconstitutionally applied to defendant, and thus directly involved the application of the guidelines. U.S. v. Grinard-Henry, 399 F.3d 1294 (11th Cir. 2005).
11th Circuit disagrees with other circuits and holds that Blakely error did not affect substantial rights. (120) Defendant argued for the first time on appeal that his sentence violated Blakely v. Washington, 124 S.Ct. 2531 (2004) and U.S. v. Booker, 543 U.S. 220 (2005). The Eleventh Circuit reviewed for plain error and found none. Defendant met the first two prongs of the plain error test – there was error and the error was plain, even though it was not “plain” at the time of sentencing. However, defendant could not show the error affected his substantial rights. The error was not that there were extra-verdict enhancements (enhancements based on facts found by the judge) that led to a sentence increase. The error was that there were extra-verdict enhancements used in a mandatory guideline system. If the same enhancements had been used in the same way in a non-mandatory guidelines system, the result would have been constitutionally permissible. Thus, if the case were remanded, the judge would be faced with exactly the same factual issues and would be required to consider exactly the same guideline enhancements it had already applied. Thus, the issue was whether there was a reasonable probability of a different result if the guideline had been applied in an advisory instead of a binding fashion by the sentencing judge. The panel acknowledged and rejected the plain error analysis of three other circuits. See U.S. v. Hughes, 396 F.3d 374 (4th Cir. 2005), superseded by U.S. v. Hughes, 401 F.3d 540 (4th Cir. 2005); U.S. v. Oliver, 397 F.3d 369 (6th Cir. 2005); U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005).
11th Circuit rejects second habeas claim because Supreme Court has not made Booker retroactive. (120) Defendant sought permission to file a second or successive petition under 18 U.S.C. § 2255 and § 2244(b)(3)(A) based the new rule of constitutional law established by Blakely v. Washington, 124 S.Ct. 2531 (2004) and U.S. v. Booker, 125 S.Ct. 738 (2005). However, for a new rule of constitutional law to be grounds for a successive § 2255 petition, it must have been “made retroactive to cases on collateral review by the Supreme Court.” § 2255(b). Regardless of whether Booker established “a new rule of constitutional law” within the meaning of §§ 2244(b)(2)(A) and 2255, the Supreme Court has not expressly declared Booker to be retroactive to cases on collateral review. Booker was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review. The Eleventh Circuit denied defendant’s request. In re Anderson, 396 F.3d 1336 (11th Cir. 2005).
11th Circuit holds that appeal waiver exception did not permit defendant to raise Blakely/Booker claim. (120) As part of her plea agreement, defendant waived the right to appeal her sentence “unless the sentence exceeds the maximum permitted by statute.” She contended that the “maximum permitted by statute” was the same as the “statutory maximum” referred to in the Apprendi, Blakely and Booker decisions, and therefore, the appeal waiver did not bar her from raising a sentencing issue under Booker. The Eleventh Circuit disagreed. In the Apprendi line of cases, the Supreme Court used the term “statutory maximum” to describe the parameters of the rule announced in those decisions, a rule that had nothing to do with the scope of appeal waivers. Plea bargains are like contracts and should be interpreted in accord with what the parties intended. There was nothing to indicate that when the parties used the language “exceeds the maximum permitted by statute” that they intended those words to have anything other than their usual and ordinary meaning. The parties chose to define the maximum in sentence in terms of what is “permitted by statute,” not in terms of what is permitted by the Apprendi line of cases. The D.C. Circuit reached a similar result in U.S. v. West, 392 F.3d 450 (D.C. Cir. 2004). U.S. v. Rubbo, 396 F.3d 1330 (11th Cir. 2005).
11th Circuit rejects Blakely claim where defendant’s brief did not explain its impact. (120) Defendant submitted pursuant to Fed. R. App. P 28(j) the Supreme Court’s decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). Defendant’s appeal, however, focused exclusively on whether the district court correctly found that defendant had a supervisory role in the commission of the fraud scheme. Defendant did not argue in his initial appellate brief that this finding should have been made by a jury or exceeded the statutory maximum range. Moreover, he did not identify arguments in his brief impacted by Blakely and its progeny in accordance with Rule 28(j). Therefore, the Eleventh Circuit ruled that Blakely and its progeny had no bearing on its decision here. U.S. v. Njau, 386 F.3d 1039 (11th Cir. 2004).
11th Circuit refuses to consider supplemental brief raising Blakely issue for the first time. (120) After oral argument but before disposition on the merits, defendant filed a motion for leave to file a supplemental brief asserting, for the first time, that sentencing enhancements he received were unconstitutional under Blakely v. Washington, 125 S.Ct. 2531 (2004). In U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004), the Eleventh Circuit denied a petition for rehearing based upon a newly asserted Blakely claim. Levy relied on the long-standing rule that issues not raised by a defendant in his initial brief on appeal are deemed waived. This rule does not apply differently in a case such as this where the motion is to file a supplemental brief raising an issue for the first time prior to a decision on the merits of the direct appeal. See U.S. v. Nealy, 232 F.3d 825 (11th Cir. 2000) (applying rule to Apprendi claim). The Eleventh Circuit held that the rule that issues not properly raised in an initial brief are deemed abandoned applies in the context of a Blakely-based claim sought to be raised in a supplemental briefing. Because defendant failed to raise the Blakely issue in his initial brief, the issue was waived. U.S. v. Curtis, 380 F.3d 1311(11th Cir. 2004).
11th Circuit holds that defendant waived Blakely issue by failing to raise it in initial appellate brief. (120) After the Eleventh Circuit affirmed his federal sentences, defendant petitioned for rehearing based on Blakely v. Washington, 124 S.Ct. 2531 (2004). Defendant’s initial brief on appeal did not claim that he had a Sixth Amendment right to a jury trial on his federal sentencing enhancements. The Eleventh Circuit refused to consider the issue because defendant did not timely raise it in his initial brief on appeal. It has repeatedly refused to consider issues raised for the first time in a petition for rehearing. U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004).
11th Circuit says Blakely does not authorize second or successive habeas petition. (120) Defendant sought an order authorizing the district court to consider a second or successive motion to vacate or correct his sentence under 28 U.S.C. § 2255. One ground for granting such authorization is where the appellate court certifies that the second or successive motions contains a claim involving “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The Eleventh Circuit held that the Supreme Court’s decision in Blakely does not authorize a second or successive habeas petition. Regardless of whether Blakely established a “new rule of constitutional law”, the Supreme Court has not expressly declared Blakely to be retroactive to cases on collateral review. Moreover, no combination of cases necessarily dictate retroactivity of the Blakely decision. In fact the Supreme Court has strongly implied that Blakely is not to be applied retroactively. See Schiro v. Summerlin, 124 S.Ct. 2519 (2004), (holding that Ring v. Arizona, which extended Apprendi to facts increasing a defendant’s sentence from life to death, is not retroactive to cases on collateral review). In re Dean, 375 F.3d 1287 (11th Cir. 2004).
11th Circuit says that Blakely does not undermine validity of mandatory minimum sentences. (120) Defendants were convicted of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(b)(1)(C). Because the court found that “death or serious bodily injury result[ed] from the use” of the illegal substance, the prescribed minimum sentence was 20 years. Defendants brought a motion under 28 U.S.C. § 2255 to vacate their sentences, arguing that their enhanced mandatory minimum sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court granted the motions on the basis of Apprendi, but the Eleventh Circuit reversed. The Apprendi rule does not apply in mandatory minimum circumstances where the enhanced minimum does not exceed the non-enhanced maximum sentence. “Whatever other effect the Supreme Court’s recent decision in Blakely v. Washington, 124 S.Ct. 2531 (2004), may have, it does not undermine the validity of minimum mandatory sentences, at least not where the enhanced minimum does not exceed the non-enhanced maximum.” Spero v. U.S., 375 F.3d 1285 (11th Cir. 2004).
11th Circuit holds that Apprendi did not prohibit consecutive sentences. (120) Defendants, convicted of a variety of drug charges, were initially sentenced to life, 300 months, and life imprisonment, respectively. On appeal, the court found the sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000). On remand the district court resentenced defendants to 480, 292, and 350 months, respectively. The court interpreted § 5G1.2(d) to require that defendants’ sentence run consecutively rather than concurrently so that the proper guideline range could be achieved. The Eleventh Circuit held that the district court properly interpreted § 5G1.2(d) to require the imposition of consecutive sentences where the sentence imposed on the § 841 counts was less than the total punishment for defendants’ aggregate convictions. Moreover, the new sentences did not violate Apprendi. The rule of Apprendi applies only where a defendant is sentenced above the statutory maximum sentence for an offense; it does not prohibit a sentencing court from imposing consecutive sentences on multiple counts of conviction as long as each is within the applicable statutory maximum. U.S. v. Davis, 329 F.3d 1250 (11th Cir. 2003).
11th Circuit holds that Apprendi was not applicable to guideline increase. (120) Defendant was convicted of numerous firearms counts. He challenged a two-level increase under § 2K2.1(b)(4) for having obliterated the serial number of certain guns. The Eleventh Circuit held that the district court’s fact-finding in support of this increase did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi does not apply to calculations under the Sentencing Guidelines. See U.S. v. Snyder, 291 F.3d 1291 (11th Cir. 2002). Defendant’s concurrent terms of 33 months’ imprisonment on each count of conviction did not exceed the statutory maximum penalty of 10 years for each of his § 922(a)(6) convictions. U.S. v. Ortiz, 318 F.3d 1030 (11th Cir. 2003).
11th Circuit holds that Apprendi error was harmless. (120) The failure to charge or submit to the jury a specific drug quantity is harmless error under Apprendi if, by finding the defendant guilty, the jury necessarily must have found, beyond a reasonable doubt, that a certain quantity of drugs was involved in the offense. If no reasonable juror could have found the defendant guilty without also finding that the specific quantity of drugs was involved, then the defendant is not entitled to resentencing. The Eleventh Circuit ruled that the Apprendi error here was harmless because no reasonable juror could have found defendant guilty without also finding that he possessed at least five grams of cocaine base, which was enough to make him eligible for life imprisonment under 21 U.S.C. § 841(b)(1)(B). On a videotape, defendant was observed selling cocaine from a baggie stashed in a utility pole. The baggie, which was later seized by police, contained several smaller baggies containing more than eight grams of crack as well as 3.8 grams of powder cocaine. Defendant was the only person to handle the cocaine baggie, and he appeared to have complete control over it at all times during the relevant period. If the jury believed that defendant possessed the stash of crack with intent to distribute it, it could not have believed that he possessed less than the amount that was found in the baggie in the pole. U.S. v. Anderson, 289 F.3d 1321 (11th Cir. 2002).
11th Circuit rejects Apprendi challenge where sentence did not exceed aggregate of statutory maximums. (120) Based on a judicial finding at sentencing that defendant had more than 1000 marijuana plants, the district court sentenced defendant to the mandatory minimum sentence of 20 years pursuant to 21 U.S.C. § 841(b)(1) (A)(vii). Defendant argued for the first time on appeal that this sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eleventh Circuit rejected the challenge. Defendant had a prior drug conviction, which increased the maximum for an offense involving an unspecified quantity of drugs from five years for each count to ten years pursuant to § 841(b)(1)(D). Thus, without a jury finding of drug quantity, defendant’s maximum penalty under § 841(b)(1) (D) was ten years for each of the five counts of conviction, resulting in a “possible maximum sentence” of 50 years altogether. When the ultimate sentence (in this case 20 years) does not exceed the aggregate statutory maximum for the multiple convictions (in this case 50 years), no effect on substantial rights has occurred that must be remedied. Also, the fairness, integrity, and public reputation of the judicial proceedings are not subject to serious question. U.S. v. Hester, 287 F.3d 1355 (11th Cir. 2002).
11th Circuit says “death or serious bodily injury” enhancement did not violate Apprendi. (120) Defendant sold heroin to Elliot, who went to a hotel room and snorted the heroin. That evening a hotel employee found Elliot unconscious and snoring loudly in the hallway. The employee and Elliot’s roommate dragged Elliot to his room and placed him in bed. Less than an hour later, Elliot died from a heroin overdose. Defendant was convicted of heroin charges. The district court enhanced his sentence under 21 U.S.C. § 841(b)(1)(C) because it found by a preponderance of the evidence that “death or serious bodily injury” had resulted from defendant’s offense. The Eleventh Circuit held that the enhancement did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000), because defendant’s 20-year sentence did not exceed the maximum sentence authorized under § 841(b)(1) (C) for a heroin offense not involving “death or bodily injury.” There was sufficient evidence to connect defendant’s drug offense with Elliot’s death. Defendant admitted that he sold heroin to Elliot and that the heroin was in Elliot’s system when he died. The medical examiner determined that Elliot died as a result of cardiorespiratory arrest due to heroin toxicity. The hotel employee and the victim’s roommate were not “intervening factors” that severed the causal connection between the offense and Elliot’s death. U.S. v. Rodriguez, 279 F.3d 947 (11th Cir. 2002).
11th Circuit says Apprendi errors did not affect substantial rights. (120) Defendants contended that their sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Because of the complete absence of any evidence which would have permitted the jury to conclude that any of the offenses involved less than the amount necessary to trigger a statutory maximum equal to or above the sentences imposed, the Eleventh Circuit found that none of the defendant’s substantial rights were affected by any Apprendi error. Four defendants did not point to any evidentiary basis for the jury to have found that the offense for which they were convicted involved less than 500 grams of cocaine. The same was true as to a fifth defendant and the five kilogram minimum for a life sentence maximum. No evidence indicated that the cocaine trafficked by these conspirators was ever in an amount less than a kilogram. U.S. v. Novaton, 271 F.3d 968 (11th Cir. 2001).
11th Circuit, en banc, says Apprendi does not apply unless judge’s drug quantity finding increases actual sentence beyond statutory maximum. (120) In an en banc decision, the Eleventh Circuit ruled that the federal drug statute, 21 U.S.C. § 841, is impacted by Apprendi v. New Jersey, 530 U.S. 466 (2000) only to the limited extent that judge-decided facts actually increase a defendant’s sentence above the prescribed statutory maximum. Apprendi has no effect on cases in which a defendant’s actual sentence falls within the range prescribed by the statute for the crime of conviction. Accordingly, in a § 841 case, when a defendant’s sentence falls at or below the statutory maximum penalty in § 841(b)(1)(C), there is no Apprendi error and no need for drug quantity to be submitted to a jury and proven beyond a reasonable doubt. Additionally, Apprendi has no application to cases in which statutory sentencing factors trigger a mandatory minimum sentence, provided that the mandatory minimum term does not exceed the otherwise applicable statutory maximum. Thus, being sentenced under § 841(b)(1)(A) or (B) and being potentially exposed to a higher sentence under either section does not create Apprendi error. The panel rejected suggestions to the contrary in U.S. v. Rogers, 228 F.3d 1318 (11th Cir. 2000) and its progeny. Thus, defendants were not entitled to a dismissal of their § 841 indictment. U.S. v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc).
11th Circuit holds that term of supervised release for drug offense not limited to three years. (120) Defendant argued for the first time on appeal that their supervised release term was limited by statute to three years, and that the four-year term violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Section 841(b)(1)(C) requires a term of supervised release of “at least three years.” Defendant relied on 18 U.S.C. § 3583(b)(2), which provides that “[e]xcept as other provided,” the term of supervised release for a “Class C felony” may be “not more than three years.” Section 841(b)(1)(C), which provides for a maximum prison term of 20 years, constitutes a Class C felony. The Eleventh Circuit found no Apprendi error, holding that § 3583(b) does not limit the term of supervised release authorized in § 841(b)(1)(C). Section 3583 limits the maximum term of supervised release for a Class C felony “except as otherwise provided.” Section 841(b)(1)(C), in fact, expressly “otherwise provides” that the term of supervised release for that particular Class C felony must be at least three years. U.S. v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc).
11th Circuit holds that guilty pleas were not invalid under Apprendi. (120) Defendants argued that their convictions must be reversed because their guilty pleas were unintelligent and involuntary under Apprendi v. New Jersey, 530 U.S. 466 (2000). They contended that the district court did not comply with Rule 11 before accepting their guilty pleas because it did not address drug quantity, which they believed Apprendi converted into an element of their offense. Moreover, they contended that their guilty pleas were induced by the threat of a harsher punishment (up to 40 years’ imprisonment under § 841(b)(1)(B)) than was possible under Apprendi, which limited their maximum penalty to 20 years under § 841(b)(1)(C). The Eleventh Circuit rejected both claims. Because defendants were sentenced below the prescribed maximum penalty otherwise permissible under § 841(b)(1)(C), a specific drug quantity was not an element of their drug offense. Therefore, the court’s failure to discuss specific drug quantity in their plea colloquies was not error. Moreover, even assuming defendants were misadvised about the “maximum possible penalty” they faced, their challenge to their plea colloquies lacked merit due to Brady v. U.S., 397 U.S. 742 (1970). The Supreme Court in Brady expressly held that a guilty plea was not rendered involuntary by a subsequent legal pronouncement that reduced the statutory maximum sentence below what the defendant was advised of at the time of his plea. U.S. v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc).
11th Circuit holds that consecutive sentences did not violate Apprendi. (120) Pursuant to § 2B3.1(b)(5), the district court applied a two-level enhancement because the robbery involved a car-jacking by his co-conspirators. Defendant argued that the increase violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because it resulted in a 262-month sentence for his two Hobbs Act convictions, which carry a statutory maximum sentence of 240 months under 18 U.S.C. § 1951. The Eleventh Circuit found Apprendi inapplicable, because neither his 240-month sentence for conspiracy nor his 22-month sentence for robbery exceeded the prescribed statutory maximum penalties for those convictions. Defendant was convicted of two separate violations of the Hobbs Act – conspiracy and robbery. Convictions under the Hobbs Act for conspiracy and for the substantive offense are separate crimes that can be punished with consecutive sentences. See Callanan v. U.S., 364 U.S. 587 (1961). U.S. v. Le, 256 F.3d 1229 (11th Cir. 2001).
11th Circuit reverses RICO sentences for Apprendi error. (120) The jury failed to find any RICO predicate act that had a potential penalty of life imprisonment. See 18 U.S.C. § 1963. Therefore, under Apprendi v. New Jersey, 530 U.S. 466 (2000), the maximum penalty any of the defendants could have received on each RICO count was 20 years. Because three defendants were sentenced to terms greater than 20 years on the RICO conspiracy count, the Eleventh Circuit vacated their sentences. Another defendant’s sentence was vacated because it exceeded forty years, the combined maximum sentences of the substantive count and the conspiracy count. U.S. v. Nguyen, 255 F.3d 1335 (11th Cir. 2001).
11th Circuit rules defendants could not show Apprendi error affected substantial rights. (120) Four defendants contended for the first time on appeal that their sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because the quantity of drugs involved was not submitted to the jury and proved beyond a reasonable doubt. The Eleventh Circuit found no Apprendi error as to one defendant, because his 168-month sentence fell below the 20-year maximum in 21 U.S.C. § 841(b)(1)(C) for an offense involving an unspecified amount of drugs. The other three defendants could not meet the third prong of plain error review — they could not show that the error affected their substantial rights. Defendant Felix, who received a 324-month sentence, admitted in a PSR objection and at sentencing that he possessed four kilograms of cocaine. This exceeded the 500-gram threshold necessary for sentencing under § 841(b)(1)(B), which authorizes a sentencing range of five to 40 years. Defendant Lazaro’s conviction was based on his involvement in a 326-kilogram “rip-off” of cocaine. Lazaro did not object to or contest this amount at trial. There was no way a jury could have convicted him and still determined that the quantity involved was less than five kilograms of cocaine, which is the minimum amount necessary to support a life sentence under § 841(b)(1)(A). Finally, defendant Rizo conceded that a prior New Jersey conviction involved ten kilograms of cocaine. Because these ten kilograms of cocaine were part of the current conspiracy, the jury necessarily found the conspiracy involved more than five kilograms of cocaine. U.S. v. Gallego, 247 F.3d 1191 (11th Cir. 2001).
11th Circuit finds Apprendi error was not plain where only evidence of drug quantity was uncontested. (120) Defendant was convicted of a variety of drug trafficking charges and received 40-year sentences on some counts, and a life sentence on another. The Supreme Court granted defendant’s petition for a writ of certiorari, vacated and remanded for further consideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Wims v. U.S., 121 S.Ct. 32 (2000). Because defendant did not raise a constitutional objection on or before sentencing, the case was reviewed only for plain error. The Eleventh Circuit ruled that the Apprendi error involved here did not satisfy all four prongs of the plain error test. There was error, since defendant’s life sentence exceeded the maximum (20 years) prescribed in § 841(b)(1)(C) for an offense involving an unspecified quantity of drugs. The error was plain, since a sentence that exceeds that statutory maximum without regard to quantity is clear error. However, defendant was unable to satisfy the third prong—he failed to show that the error affected his substantial rights. As to the counts for which he received 40-year sentences, the uncontested evidence showed that least 500 grams of cocaine were involved, enough to support a 40-year sentence under § 841(b)(1)(B). As to the conspiracy count for which he received a life sentence, the uncontested evidence concerned six one-kilogram packages of cocaine. Because the jury convicted him of this count, they necessarily attributed six kilograms to defendant, enough to support the life sentence under § 841(b)(1)(A). U.S. v. Wims, 245 F.3d 1269 (11th Cir. 2001).
11th Circuit holds that Apprendi does not apply to relevant conduct provisions. (120) The district court held that Apprendi v. New Jersey, 530 U.S. 466 (2000) precluded it from considering drug quantities other than those involved in the counts of conviction. The Eleventh Circuit disagreed, based on its recent decision in U.S. v. Maldenaldo-Sanchez, 247 F.3d 1306 (11th Cir. 2001). Maldenaldo-Sanchez held that Apprendi does not apply to the Sentencing Guidelines. “Because a finding under the Sentencing Guidelines determines the sentence within the statutory range rather than outside it, the decision in Apprendi, which addresses any increase in penalty for a crime outside the statutory maximum, has no application to the Guidelines.” U.S. v. Harris, 244 F.3d 828 (11th Cir. 2001).
11th Circuit rules Apprendi error did not affect substantial rights. (120) Because the indictment did not allege a specific quantity of cocaine, the maximum sentence that defendant could receive under 21 U.S.C. § 841(b)(1)(C) was 20 years. See Apprendi v. New Jersey, 530 U.S. 466 (2000). For the first time on appeal, defendant argued that his 30-year sentence violated Apprendi. Under plain error review, defendant must establish (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. The Eleventh Circuit ruled that although defendant could satisfy the first two elements of the plain error test, he could not show that the Apprendi error affected his substantial rights. Although the amount of cocaine involved at the offense was disputed at sentencing, defendant never contended that he conspired to distribute less than 500 grams. In both his plea agreement and during the plea colloquy, defendant admitted that he had accepted delivery of three kilograms of cocaine. Under § 841(b)(1)(B), conspiracy to distribute this quantity of cocaine is punished with a statutory range of five to 40 years. U.S. v. Pease, 240 F.3d 938 (11th Cir. 2001).
11th Circuit says substantial rights not affected if sentence does not exceed aggregate maximum for multiple convictions. (120) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), a judge must submit to the jury an element of sentencing that would increase the sentence beyond the statutory maximum. Since drug quantity was not submitted to the jury, the statutory maximum for each of defendants’ convictions was 20 years. See 21 U.S.C. § 841(b)(1)(C). Defendants never objected at sentencing when the judge determined drug quantity by a preponderance of the evidence, so appellate review was limited to plain error. For a plain error to merit reversal, it must affect a defendant’s substantial rights. Here, defendants were convicted of three counts, each carrying a maximum sentence of 20 years, and making them subject to a possible maximum sentence of 60 years. The Eleventh Circuit ruled that when the ultimate sentence does not exceed the aggregate statutory maximum for the multiple convictions, no effect on substantial rights has occurred that must be remedied. Accordingly, it refused to reverse the sentences. U.S. v. Smith, 240 F.3d 927 (11th Cir. 2001).
11th Circuit holds that Apprendi error did not affect substantial rights. (120) For the first time on rehearing, defendant challenged his sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eleventh Circuit held that the error did not satisfy the third prong of the plain error test — the error did not affect defendant’s substantial rights. On the drug possession count, defendant’s partner was the only witness. The jury necessarily believed the partner in order to convict defendant under this count. The partner testified that, on one occasion, defendant delivered nine ounces of cocaine base to him for distribution. No reasonable jury could have concluded that defendant was guilty of the substantive possession offense, but that the amount was less than five grams. Under 21 U.S.C. § 841(b)(1)(B)(iii), if defendant possessed five grams or more of cocaine base, he was subject to up to 40 years’ imprisonment. Defendant received a 30-year sentence on this count. The conspiracy count necessarily subsumed the amount of cocaine in the possession charge. U.S. v. Candelario, 240 F.3d 1300 (11th Cir. 2001).
11th Circuit outlines standards for reviewing Apprendi errors. (120) The Eleventh Circuit outlined the differing standard of review for alleged Apprendi errors. The standard of review depends upon whether the objection was timely. An Apprendi objection is timely if made at or before sentencing. If timely, the objection receives the benefit of preserved error review, which is de novo. However, under this standard of review, even if a defendant’s sentence violates Apprendi, such an error is subject to harmless error analysis under Fed. R. Crim. P. 52(a). An error is harmless where it is clear beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. If the defendant does not raise his Apprendi claim in a timely fashion, he is only entitled to plain error review. Under this standard, defendant must show that (1) there is error, (2) that is plain, and (3) that affects substantial rights. Previous cases have found an Apprendi error does not affect substantial rights where there was no way a jury could have found that the defendant possessed less than the amount needed to support his sentence, or where the defendant’s sentence did not exceed the aggregate statutory maximum for multiple convictions. If all three plain error conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. U.S. v. Candelario, 240 F.3d 1300 (11th Cir. 2001).
11th Circuit holds that defendant abandoned Apprendi claim by failing to raise it until supplemental brief. (120) Defendant argued for the first time in his supplemental brief that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) required the indictment to include the element of drug quantity. The Eleventh Circuit held that defendant abandoned this Apprendi claim by not raising the issue in his initial brief. Defendant argued at trial and in his initial brief that the question of drug quantity should be submitted to the jury, but did not raise the indictment issue until his supplemental brief. Defendant could not properly raise totally new issues in his supplemental brief. U.S. v. Nealy, 232 F.3d 825 (11th Cir. 2000).
11th Circuit holds that failure to submit drug quantity to jury was harmless error. (120) Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the judge must submit to the jury any element of sentencing that would increase the sentence beyond the statutory maximum. Where, as here, the defendant has prior drug felony convictions, the maximum sentence absent drug quantity under 21 U.S.C. § 841(b)(1)(C) is 30 years. Because the judge here did not submit the issue of drug quantity to the jury, defendant’s 32-year sentence violated Apprendi. The Eleventh Circuit ruled that the failure to submit the drug quantity issue to the jury was harmless error. When police searched defendant’s residence, they found 14.8 grams of cocaine base in his backpack, which also contained defendant’s identification card. This amount was uncontested at trial and sentencing. Defendant admitted at the scene that the cocaine base was his. Defendant was convicted for this possession, and, given the undisputed evidence, no reasonable jury could have rationally concluded that defendant was guilty of the substantive offense, but that the amount of cocaine possessed was less than five grams. U.S. v. Nealy, 232 F.3d 825 (11th Cir. 2000).
11th Circuit finds no plain error in supervised release terms, regardless of drug quantity. (120) Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. Because both defendants’ imprisonment terms were below the statutory maximum of 20 years for a cocaine offense without reference to drug quantity, see 21 U.S.C. § 841(b)(1)(C), Apprendi did not apply to the imprisonment portion of their sentences. However, they argued for the first time on appeal that their five-year supervised release terms violated Apprendi. Section 841(b)(1)(C) provides for “a term of supervised release of at least 3 years.” Under 18 U.S.C. § 3583(b)(2), the maximum term of supervised release for a Class C felony is three years, “[e]xcept as otherwise provided[.]” Defendants claimed that three years was the maximum term of supervised release under § 841(b)(1)(C). The Eleventh Circuit found no plain error, since there was no Supreme Court or Eleventh Circuit precedent on the issue of whether § 3582(b)(2) provides the maximum term of supervised release for a sentence under § 841(b)(1)(C). Other circuits that have addressed this issue are split, and the majority of them have resolved the issue against defendant’s position. Accordingly, the district court could not have committed plain error in imposing terms of supervised release in excess of three years, regardless of the quantity of drugs involved. U.S. v. Gerrow, 232 F.3d 831 (11th Cir. 2000).
11th Circuit holds that no relief warranted despite assumed Apprendi error. (120) After defendant was sentenced, the Supreme Court held, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), that any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. Assuming that the district court’s failure to comply with Apprendi was plain error, the Eleventh Circuit nonetheless held that the error did not require reversal, because defendant could not show that the error affected his substantial rights or provided sufficient reason for the appellate court to exercise its power to correct plain error. After his arrest, defendant led authorities to 100-plus grams of cocaine and 20-odd grams of cocaine base in his house and admitted to possessing the cocaine and cocaine base. He offered no evidence at sentencing to challenge this admission. Thus, there was no serious dispute that defendant possessed at least 5 grams of cocaine base, enough for the increased statutory maximum. As to the sufficiency of the indictment, defendant did not even argue that he did not know before trial that the quantity or type of drugs could affect his sentence. The indictment cited § 841(b)(1)(B), the quantity enhancement subsection under which defendant was sentenced. Thus, the failure to submit the issues of the kind and quantity of drugs to the jury, or mention them in the indictment, could not have “affected the outcome of the district court proceedings.” U.S. v. Swatzie, 228 F.3d 1278 (11th Cir. 2000).
11th Circuit rejects challenge to guideline permitting court to find objects of conspiracy. (120) Defendants were convicted of wire fraud, interstate transportation of money taken by fraud, and conspiracy. The conspiracy charged contained multiple objects, including money laundering. Defendants argued that the district court erred in using the money laundering guideline for the conspiracy count because the jury acquitted them of a substantive money laundering charge. Section 1B1.2(d) provides that a conviction on a conspiracy count charging more than one object shall be treated as if the defendant had been convicted of each offense the defendant conspired to commit. Note 5 adds that this applies if the court, sitting as a trier of fact, would have convicted the defendant of conspiring to commit the object offense. The Eleventh Circuit, agreeing with the Third Circuit’s opinion in U.S. v. Conley, 92 F.3d 157 (3d Cir. 1996), rejected defendant’s 5th and 6th Amendment challenges to § 1B1.2(d) and note 5. However, the district court should not have applied the money laundering guideline here without an independent determination that defendants conspired to commit money laundering. The case was remanded for appropriate factual findings. U.S. v. Ross, 131 F.3d 970 (11th Cir. 1997).
11th Circuit quashes subpoenas and upholds constitutionality of Sentencing Commission and validity of guidelines. (120) Defendant’s sentence was vacated when an Eleventh Circuit panel found that his sentencing judge, a member of the Sentencing Commission, should have recused herself from deciding his challenges to the Sentencing Commission and the guidelines. Defendant then argued that the Sentencing Commission was unconstitutional and that the guidelines were invalid on numerous grounds. To demonstrate this, defendant attempted to subpoena the President, the Attorney General, the Solicitor General, and several others. The Eleventh Circuit granted the government’s request for a writ of mandamus directing the district court to quash the subpoenas. The rationale behind the Supreme Court’s decision in Mistretta v. U.S., 488 U.S. 351 (1989) refuted defendant’s claim that the Commission was unconstitutional due to the manner in which it has conducted its business. Defendant lacked standing to prosecute many of his claims against the guidelines since his sentence was vacated and he had not yet been resentenced. Other claims were patently frivolous in light of Mistretta. In re United States, 60 F.3d 729 (11th Cir. 1995).
11th Circuit, en banc, says sentencing courts may not consider constitutionality of prior convictions. (120) Defendant argued that his prior conviction should not be included in his criminal history score because it was unconstitutionally obtained. Reversing the panel’s decision, the 11th Circuit held that the sentencing court lacks discretion under the guidelines to consider the constitutionality of a previously unchallenged conviction. Some other courts have found discretion to address the constitutionality of priors notwithstanding a 1990 guideline amendment that removed language implying authority to review such convictions. The 11th Circuit noted that the constitution itself compels courts not to rely on constitutionally “presumptively void” priors, but it suggested that priors satisfying that standard are “small in number and perhaps limited to uncounseled convictions. U.S. v. Roman, 989 F.2d 1117 (11th Cir. 1993).
11th Circuit upholds consideration at sentencing of illegally seized handguns. (120) The 11th Circuit affirmed the district court’s consideration at sentencing of handguns which had been illegally seized in violation of the 4th Amendment. Excluding such reliable information from sentencing would frustrate federal policy that judges consider all relevant and reliable facts in order to assure that each defendant receives an individualized sentence. In contrast, the benefit of excluding such evidence was slight: “[i]t is unrealistic to assume that the threat that a future sentence might be less severe would significantly deter .ÿ.ÿ. lawlessness.” U.S. v. Lynch, 934 F.2d 1226 (11th Cir. 1991).
11th Circuit rejects claim that relevant conduct provisions are unconstitutional Bill of Attainder. (120) Defendant argued that guideline § 1B1.3, which permits a court to consider conduct other than that for which a defendant was indicted, is an unconstitutional Bill of Attainder. This provision, defendant contended, takes discretion away from the sentencing court, forcing it to consider, in his case, a quantity of drugs other than the drugs he was convicted of distributing. The 11th Circuit rejected this argument, noting that under circuit precedent, Congress has the power to restrict judicial discretion. Moreover, the consideration of all relevant conduct is a traditional sentencing practice. U.S. v. Bennett, 928 F.2d 1548 (11th Cir. 1991), superseded on other grounds by guideline as stated in U.S. v. Smith, 127 F.3d 1388 (11th Cir. 1997).
D.C. Circuit rejects Apprendi challenge where sentence imposed was less than statutory maximum. (120) Defendant and four co-conspirators were convicted of conspiring to import five or more kilograms of cocaine into the U.S. after a DEA sting operation caught them on tape plotting to transport and safeguard a 1,300-kilogram drug shipment. The D.C. Circuit held that defendant’s 220-month sentence was consistent with Apprendi. The jury verdict for conspiring to import five kilograms or more of cocaine triggered a statutory imprisonment range of ten years to life. Defendant argued that because the jury did not ascribe a specific amount of cocaine to him personally, the statutory maximum should have been 20 years under 21 U.S.C. § 960(b)(3). However, the sentence he received, 208 months, or a little over 17 years, was less than the statutory maximum that defendant himself urged. U.S. v. Mejia, 597 F.3d 1329 (D.C. Cir. 2010).
D.C. Circuit holds that sentence can be based on conduct underlying deadlocked counts. (120) Defendant was convicted of drug and firearms charges. He argued that the court violated his Sixth Amendment rights by imposing a sentence higher than the guideline maximum based on facts not found by the jury. The D.C. Circuit found no error. First, under Booker, the guidelines are advisory, not mandatory. No Sixth Amendment issue is raised unless a sentence exceeds its statutory maximum. Second, a sentence may be based on conduct with which the defendant was charged but on which the jury deadlocked provided, as here, the court determined by a preponderance of the evidence that the defendant engaged in such conduct. U.S. v. Lawson, 494 F.3d 1046 (D.C. Cir. 2007).
D.C. Circuit holds that Booker does not apply retroactively to cases on collateral review. (120) Convicted in 1994 of various drug-related offenses, defendant petitioned for leave to file a successive § 2255 petition claiming that his sentence was unconstitutional in light of Booker. He filed his first habeas petition prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and claimed that his request for leave should be evaluated under the pre-AEDPA “cause and prejudice” standard. Under the AEDPA, a court may entertain a second or successful habeas petition only if it is based upon “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” The D.C. Circuit held that Booker does not apply retroactively, and therefore, defendant was not entitled to another habeas proceeding under the AEDPA. Moreover, defendant could not meet the pre-AEDPA standard of “cause and prejudice.” Because Booker is not retroactive, defendant could not show prejudice. Booker announced neither a substantive rule nor a watershed rule of procedure. In re Fashina, 486 F.3d 1300 (D.C. Cir. 2007).
D.C. Circuit upholds judicial fact-finding by a preponderance of the evidence. (120) Defendant argued that the district court sentenced him in violation of Booker, because it increased his sentence based on facts found by the court itself using a preponderance of the evidence. The D.C. Circuit found no error – defendant misunderstood the meaning of Booker. Since the guidelines are now to be applied in an advisory fashion, the Sixth Amendment bar against judicial fact-finding does not apply to a guidelines sentence. Such fact-finding can be made by the preponderance of the evidence standard, rather than the more exacting beyond a reasonable doubt standard. Prior to Booker, the Supreme Court had upheld the guidelines’ application of the preponderance of the evidence standard. Following Booker, this circuit approved reliance on acquitted conduct proven by a preponderance of the evidence. See U.S. v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006). If a court may rely on acquitted conduct when proven by a preponderance, reliance on previously untried conduct proven under that standard is also permissible. U.S. v. Bras, 483 F.3d 103 (D.C. Cir. 2007).
D.C. Circuit holds that findings at original sentencing were insufficient for appellate review. (120) The district court, sentencing defendant two months after the Supreme Court decided Booker, interpreted the case as permitting it to enter a sentence without making a specific finding of the appropriate range under the Sentencing Guidelines. At issue was whether his prior conviction for abduction constituted a crime of violence or an aggravated felony under U.S.S.G. § 2L1.2(b)(1). Announcing the sentence, the district court concluded: “On balance, the better arguments legally – and I’m not making a specific finding – are to treat the conduct that you engaged in as a crime of violence.” The D.C. Circuit found the court’s findings insufficient and remanded for resentencing. The panel refused to infer that the court made a specific finding that the offense was a crime of violence, since it expressly and repeatedly made statements to the contrary. U.S. v. Ventura, 481 F.3d 821 (D.C. Cir. 2007).
D.C. Circuit holds that sentence at top of guideline range is not sufficient to show that Booker error was harmless. (120) It was undisputed that the district court sentenced defendants by applying the guidelines in a mandatory fashion. They raised a Sixth Amendment objection to their sentences; therefore the D.C. Circuit reviewed the sentences for harmless error. The appellate court held that a sentence at the top of the guideline range was not, by itself, sufficient to establish that a Booker error was harmless beyond a reasonable doubt. The government did not establish that the district court would have sentenced defendants to life imprisonment regardless of the mandatory nature of the guidelines; therefore, the error was not harmless and resentencing was necessary. U.S. v. Henry, 472 F.3d 910 (D.C. Cir. 2007).
D.C. Circuit upholds its jurisdiction to review reasonableness of sentence within guideline range. (120) In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court directed the circuit courts of appeal to review sentences for reasonableness, but did not expressly describe the jurisdictional basis for such review. Defendant argued that his 24-month sentence, which fell within the advisory guideline range, was unreasonable. The government contended that § 3742 (a)(1) does not give an appellate court jurisdiction to review a sentence within a properly calculated guidelines range, relying on pre-Booker precedent. See U.S. v. Hazel, 928 F.2d 420 (D.C. Cir. 1991). The D.C. Circuit upheld its jurisdiction to review the reasonableness of a sentence within the guideline range, concluding that Booker has overruled its precedent on this point. Every circuit that has considered the issue has decided that § 3742(a)(1) provides appellate jurisdiction to review any sentence for reasonableness. An unreasonable sentence is a sentence “imposed in violation of law.” Circuit courts will review any sentence, whether within the guideline range or not, “to ensure that it is reasonable in light of the sentencing factors that Congress specified in 18 U.S.C. § 3553(a).” However, a sentence within the properly calculated guideline range is entitled to a rebuttable presumption of reasonableness. Defendant did not come close to rebutting this presumption. U.S. v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006).
D.C. Circuit approves post-Booker sentence that was based on acquitted conduct. (120) Defendant was convicted of making a false statement to the FBI and acquitted of conspiracy to commit money laundering and conspiracy to defraud the government. In sentencing, the district court took into account defendant’s role in the conspiracies, finding by a preponderance of the evidence that he was involved in them notwithstanding his acquittal of those offenses. The D.C. Circuit held that the basing his sentence in part on acquitted conduct did not violate the Fifth or Sixth Amendment. Before U.S. v. Booker, 543 U.S. 220 (2005), courts had held that a sentencing court could consider acquitted conduct if the conduct was proved by a preponderance of the evidence. Nothing in Booker undermined this precedent. Under Booker, consideration of acquitted conduct violated the Sixth Amendment only if the judge imposed a sentence that exceeded what the jury verdict authorized. Defendant’s 24-month sentence did not exceed the 60-month statutory maximum for his false statement offense. U.S. v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006).
D.C. Circuit holds that plain error in treating Sentencing Guidelines as mandatory did not affect defendant’s substantial rights. (120) Defendant argued for the first time on appeal that the district court erred under Booker by treating the Sentencing Guidelines as mandatory. Under circuit caselaw, the first two plain error requirements are met if a judge treats the guidelines as mandatory. U.S. v. Coles, 403 F.3d 764 (D.C. Cir. 2005). Thus, the only issue was whether the sentencing error affected substantial rights, that is, “whether there would have been a materially different result, more favorable to the defendant, had the sentence been imposed in accordance with the post-Booker sentencing regime. The D.C. Circuit held that the error did not affect defendant’s substantial rights. The court sentenced defendant at the very top of the applicable guideline range, and identified this maximum sentence as “appropriate” to “serve as a warming to those who will kidnap Americans abroad,” and “entirely appropriate” for the type of actions that took place here. The judge’s strong and unambiguous approval of the sentence imposed, based on its deterrent effect and its proportionality to the crime committed, showed that the judge, applying the guidelines as advisory rather than mandatory, would not have imposed a sentence materially more favorable to defendant. U.S. v. Tchibassa, 452 F.3d 918 (D.C. Cir. 2006).
D.C. Circuit holds that Booker error was rendered harmless by identical alternative sentence. (120) The district court determined that defendant’s sentencing range under the guidelines was 41-51 months. The court imposed a 41-month sentence. Because of the uncertain status of the Sentencing Guidelines following Blakely v. Washington, 542 U.S. 296 (2004), the district court announced an “alternative sentence” of 41 months that it would impose if the mandatory guideline sentencing regime were held unconstitutional. The D.C Circuit held that any Booker error in defendant’s sentence was rendered harmless by the district court announcement of an identical alternative sentence. See U.S. v. Ayers, 428 F.3d 312 (D.C. Cir. 2005). The court sentenced defendant at the low end of the guidelines range after discussing the sentencing factors in § 3553(a) in imposing the mandatory guideline sentence. The court discussed the nature and circumstances of the offense as well as defendant’s personal characteristics and history. Defendant did not offer mitigating evidence or seek any further exposition of the district court’s reasons for the “alternative sentence.” U.S. v. Gillespie, 436 F.3d 272 (D.C. Cir. 2006).
D.C. Circuit remands because lower alternative sentence was not “judgment of the court.” (120) The district court, applying the guidelines as mandatory, imposed a sentence of 35 years. The judge also announced a non-guidelines “alternative sentence” of 30 years in prison, in the event the guidelines were declared unconstitutional. The judge entered both sentences on the judgment form. The D.C. Circuit concluded that the “alternative sentence” was not really a sentence, and remanded. The case was distinguishable from U.S. v. Simpson, 430 F.3d 1177 (D.C. Cir. 2005), where the court imposed a single judgment under two independent rationales. Simpson does not apply where the district court imposes a different alternative sentence. In general, there can only be one final judgment. Where a second judgment is entered by a court after the first judgment has become final, the second judgment is void. Thus, defendant’s 35-year guideline sentence was the only sentence the district court imposed, and it was the only sentence being considered in this appeal. Because the sentence was erroneous, and the parties agreed the error was not harmless, the panel vacated and remanded for further proceedings. Because the imposition of a discretionary, post-Booker sentence is not a ministerial task, the panel could not instruct the district court on remand to impose a 30-year sentence. U.S. v. Booker, 436 F.3d 238 (D.C. Cir. 2006).
D.C. Circuit rejects second § 2255 petition based on Booker. (120) Defendant applied for leave to file a second motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The D.C. Circuit refused to authorize the filing because the Supreme Court has not made Booker retroactive to cases on collateral review. A second or successive motion under § 2255 must be certified as provided in § 2244 by the court of appeals to contain: (a) newly discovered evidence; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. The Supreme Court has never expressly held Booker retroactive. In Re Zambrano, 433 F.3d 886 (D.C. Cir. 2006).
D.C. Circuit holds that error in applying mandatory guidelines was harmless given identical alternative sentence. (120) Defendant was sentenced after the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), but before its decision in U.S. v. Booker, 543 U.S. 220 (2005). In response to defendant’s objection to the mandatory application of the guidelines, the district court entered an alternative rationale for the 115-month guideline sentence. The court announced that applying the guidelines “only as advisory, not as controlling” it would sentence defendant to the same 115-month term. The D.C. Circuit held that the alternative sentencing rationale rendered harmless any error in the mandatory guidelines sentence. U.S. v. Godines, 433 F.3d 68 (D.C. Cir. 2006).
D.C. Circuit holds that alternative sentence methodology was consistent with Booker. (120) Due to uncertainty regarding the continued validity of the Sentencing Guidelines in the months after the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004), the district court imposed a 46-month prison term under two separate rationales. The court first sentenced defendant by applying the guidelines as mandatory; it then sentenced him as it would in its discretion, treating the guidelines as advisory only. The D.C. Circuit affirmed the sentencing, ruling that the alternative sentencing methodology followed by the district court was consistent with U.S. v. Booker, 543 U.S. 220 (2005). The provision of alternative rationales for the same judgment does not violate prudential norms. Booker requires courts to base sentences on the factors listed in 18 U.S.C. § 3553(a), and the court made it clear that it did consider those factors. The court expressly addressed the nature and circumstances of the offense and the history and characteristics of the defendant. The court also took into account “the interests of the criminal justice system” and “the interests and sentencing objectives of punishment and deterrence.” A court is not required to refer to every factor listed in § 3553(a). U.S. v. Simpson, 430 F.3d 1177 (D.C. Cir. 2005).
D.C. Circuit holds that announcement of identical alternative sentence did not make Booker error harmless. (120) Defendant was sentenced after the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004), but prior to its decision in U.S. v. Booker, 543 U.S. 220 (2005). The district court imposed a sentence of 53 months, near the low end of the applicable guideline range of 51-63 months, and announced an alternative but identical sentence “should the guidelines be struck down and ruled unconstitutional in their totality.” The D.C. Circuit held that the announcement of the alternative sentence did not render the court’s Booker error harmless. The district court did not explain why its alternative sentence matched its guideline sentence, the judge merely stated that he had “no reason to change” from the guideline sentence. Defendant even asked for a continuance so that it could present mitigating factors, but the court refused. Because defendant preserved his objection to his sentence and because the government failed to show that mandatory application of the guidelines was harmless, the panel vacated defendant’s sentence and remanded for resentencing. U.S. v. Ayers, 428 F.3d 312 (D.C. Cir. 2005).
D.C. Circuit remands for determination of whether court would impose more favorable sentence under advisory guidelines. (120) Defendant argued that the district court erred when it sentenced him under a mandatory guidelines scheme. Following U.S. v. Coles, 403 F.3d 764 (D.C. Cir. 2005), the D.C. Circuit remanded “for the limited purpose of allowing [the district court] to determine whether it would have imposed a different sentence, materially more favorable to the defendant, had it been fully aware of the post-Booker sentencing regime.” U.S. v. Edwards, 424 F.3d 1106 (D.C. Cir. 2005).
D.C. Circuit remands for district court to determine if it would have imposed different sentence under advisory guidelines. (120) Defendant contended for the first time on appeal that his sentence should be vacated in light of U.S. v. Booker, 543 U.S. 220 (2005). Considering the application of the plain-error doctrine to such a situation, the D.C. Circuit followed the approach of the Seventh Circuit in U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), and the Second Circuit in U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005), and remanded to the district court so that it could determine whether it would have imposed a different sentence, materially more favorable to the defendant, if sentencing had taken placed under the post-Booker sentencing regime. In some cases, a reviewing court can be confident that a defendant has suffered no prejudice from sentencing under the pre-Booker regime, such as where the court has imposed the statutory maximum and said it would have liked to impose an even higher sentence. Conversely, there will be some cases in which the court can be confident that the defendant did suffer prejudice, as where the court indicated on the record that, but for the guidelines, it would have imposed a lower sentence. Here, however, the record was ambiguous, and the panel determined that remand was the best method to determine whether there had been prejudice. U.S. v. Coles, 403 F.3d 764 (D.C. Cir. 2005).
D.C. Circuit holds that defendant could not show that Booker error prejudiced him. (120) Defendant petitioned for rehearing contending for the first time that his sentence was unconstitutional under the Sixth Amendment in light of U.S. v. Booker, 543 U.S. 220 (2005). The D.C. Circuit found defendant could not satisfy the plain error test since he was not prejudiced by the impermissibly mandatory nature of the guidelines – if anything, he benefited from it. The sentencing judge, on each of the prior two sentencings, imposed a sentence beyond what the guidelines required. The first time, he departed upward and sentenced defendant to 46 months, stating that defendant deserved this sentence. The second time, the judge was forced to impose a shorter sentence, 21 months, but again reached the figure by departing upward, even though the government had not requested an upward departure. Thus, Booker’s requirement that the judge understand that he was not bound by the guidelines could not help defendant. U.S. v. Smith, 401 F.3d 497 (D.C. Cir. 2005).
D.C. Circuit remands where government conceded that Booker error was not harmless. (120) Defendant challenged several of the district court’s sentencing determinations, and the government conceded that the mandatory enhancement of defendant’s sentence was unconstitutional under U.S. v. Booker, 543 U.S. 220 (2005). It further agreed that, by noting in his objections to the PSR that Apprendi had rendered the guidelines problematic, defendant had “made a sufficient objection in the district court to preserve a Sixth Amendment challenge to his sentence.” The government also conceded that it could not meet the harmless error standard, i.e. it could not demonstrate “beyond a reasonable doubt that the error complained of did not contribute to the [sentence] obtained.” The D.C. Circuit remanded for resentencing under Booker, refusing to resolve his specific challenges to the district court’s application of the guidelines before remanding. U.S. v. Coumaris, 399 F.3d 343 (D.C. Cir. 2005).
D.C. Circuit holds that waiver of appeal covered Blakely/Apprendi claim. (120) Defendant’s plea agreement provided that he waived the right to appeal his sentence or the manner in which it was determined pursuant to § 3742. Nonetheless, he attempted to argue on appeal that his sentence violated his Sixth Amendment right to a jury trial, as understood in Blakely v. Washington, 124 S.Ct. 2531 (2004). The D.C. Circuit held that the Blakely argument was covered by the waiver – it did not fall into the exception allowing him to appeal if “the court sentences [him] to a period of imprisonment longer than the statutory maximum.” The term “statutory maximum” does not mean “the statutory maximum as defined by Blakely.” It was implausible at the time the plea agreement the parties could have understood it this way. The court did not reach the issue of whether such waivers are valid as a general matter because defendant did not argue otherwise. U.S. v. West, 392 F.3d 450 (D.C. Cir. 2004).
D.C. Circuit holds that defendant failed to establish prejudice from alleged Apprendi error. (120) Defendant argued in a § 2255 petition that his 1997 drug convictions and sentence were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) because a judge rather than a jury determined the quantity of drugs involved in his crimes. Because he failed to raise this claim at trial or on direct appeal, the issue could only be raised on collateral review if defendant showed “cause and prejudice” sufficient to overcome his procedural default. The D.C. Circuit ruled that defendant failed to satisfy his burden of demonstrating that he suffered prejudice from the alleged Apprendi error, and therefore it affirmed the denial of his motion for collateral relief. The evidence of drug quantity at defendant’s trial was an undercover agent’s testimony that defendant had promised on two occasions to provide “two ounces” of crack (56.70 grams) and a government chemist’s testimony that the crack from the two transactions weighed 50.62 grams and 50.57 grams, respectively. Defense counsel did not question these quantities. In the absence of any evidence to the contrary, a jury would have had no basis for concluding that defendant distributed less than 50 grams in each of his criminal transactions. Defendant’s challenge relied on nothing more than speculation that the jury might have decided differently than the judge did. “Such naked speculation is simply insufficient to establish prejudice.” U.S. v. Pettigrew, 346 F.3d 1139 (D.C. Cir. 2003).
D.C. Circuit finds any Apprendi error harmless where guidelines would have required sentence “stacking.” (120) Defendant, who was convicted of multiple drug and firearms charges, contended that the 292-month sentence he received on one count of possession with intent to distribute 50 grams or more of cocaine base exceeded the maximum permissible sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000). The D.C. Circuit held that any Apprendi error in the sentence imposed on that single count was harmless, because the guidelines would have required the district court to run the sentences on his multiple counts consecutively until the sum reached the same 292 months. If defendant’s drug sentence were capped by Apprendi at 240 months, U.S.S.G. § 5G1.2 would have compelled the district court to “stack” the sentences consecutively until the sum reach the total punishment of 292 months, the minimum of the applicable guideline range. Stacking is mandatory – § 5G1.2(d) commands that multiple sentences “shall” run consecutively in such situations. U.S. v. Lafayette, 337 F.3d 1043 (D.C. Cir. 2003).
D.C. Circuit refuses to apply Apprendi where drug quantities increased sentence for RICO/kidnapping group. (120) Defendant was convicted of multiple offenses, including drug conspiracy, RICO conspiracy, armed kidnapping, rape and attempted murder. In previous appeals, the D.C. Circuit ruled that a life sentence on the drug count violated Apprendi v. New Jersey, 530 U.S. 466 (2000). U.S. v. Fields, 242 F.3d 393 (D.C. Cir. 2001). However, on remand, the government was “free to argue to the District Court that life sentences should be imposed on the RICO conspiracy count” for the act of kidnapping. U.S. v. Fields, 251 F.3d 1041 (D.C. Cir. 2001). At resentencing, the court divided defendant’s 16 offenses into two groups. Group 1 included the drug conspiracy and the drug-related RICO acts. Based on the drug quantities found by the court, Group 1 had a base offense level of 40. Following § 3D1.4, the court used Group 1’s level of 40 as the “combined offense level” resulting in a sentencing range of 292-365 months. Because 292 months would exceed the 20-year statutory maximum where drug quantity is not found by the jury, the court reduced defendant’s sentence on the drug counts to 240 months. But for the armed kidnapping and RICO charge, it imposed 292-month sentences, well within the life maximum for those offenses. Defendant argued that the court’s calculation violated Apprendi because the drug quantities found by the court significantly increased his armed kidnapping and RICO offense levels, and thus his sentence. The D.C. Circuit found no error, refusing to apply Apprendi to drug quantities affecting the RICO armed kidnapping sentence, since they were not an element of that offense. Such quantities could be proven, like all sentence-affecting facts that are not elements of the offense of conviction, by a preponderance of the evidence. U.S. v. Fields, 325 F.3d 286 (D.C. Cir. 2003).
D.C. Circuit holds that Apprendi does not apply to enhancement for committing offense while on release. (120) Because defendant committed his second drug offense while on release pending sentencing, USSG § 2J1.7 provided for a three-level increase in offense level, which increased his sentencing range from 108-135 months to a range of 151-188 months. Because § 2J1.7 applies only if “an enhancement under 18 U.S.C. § 3147 applies,” defendant argued that a court could not apply the three-level enhancement unless the jury finds that he committed the offense while on release. Because that did not happen here, defendant argued that the sentence enhancement was barred by Apprendi v. New Jersey, 530 U.S. 466 (2000). The D.C. Circuit held that Apprendi did not apply to the § 2J1.7 enhancement. Defendant was not separately charged and convicted under § 3147. The court merely sentenced him under the guideline for the drug offenses to which he did plead guilty, considering the fact that he committed an offense while on release, just as the court would have considered any other specific offense characteristic that adjusts an offense level upward. The fact that the offense characteristic specified here, committing the offense while on release, was specified by statute, does not matter. U.S. v. Samuel, 296 F.3d 1169 (D.C. Cir. 2002).
D.C. Circuit says Apprendi errors did not affect special assessments. (120) The D.C. Circuit found the Apprendi errors on two counts were harmless because the sentence on these counts were concurrent to a sentence on a count that had no Apprendi error. Of course, special assessments of $100 are mandatory for all felony convictions under 18 U.S.C. § 3013(a)(2)(A) and therefore these special assessments were not concurrent. But the court noted that the special assessments “would be the same no matter what term of imprisonment [defendant] received on remand. The Apprendi errors on these two counts were therefore “irrelevant to the special assessments.” The panel distinguished this case from Ray v. U.S., 481 U.S. 736 (1987) (per curiam), which spelled the death knell for the concurrent sentence doctrine as applied to review of convictions. Unlike Ray, the defendant here did not challenge his convictions so special assessments would be imposed even if the sentences on these counts were reduced. U.S. v. Agramonte, 276 F.3d 594 (D.C. Cir. 2001).
D.C. Circuit finds no Apprendi error in sentence for selling drugs within 1,000 feet of a school. (120) Defendant was sentenced to 286 months for possession with intent to distribute heroin within 1,000 feet of a school, in violation of 21 U.S.C. § 860. Concurrent 286-month sentences were also imposed on two other counts for conspiracy and distribution of drugs. The sentences on these other counts exceeded the 240-month statutory maximum under 21 U.S.C. § 841(b)(1)(C) for possession for distribution of detectable amounts of drugs. Because drug quantity was not submitted to the jury, the sentences on these other counts violated Apprendi v. New Jersey, 530 U.S. 466 (2000). However, the maximum statutory sentence for the “school yard” offense under 21 U.S.C. § 860(a) was 40 years, so the 286-month sentence on this count did not violate Apprendi. Accordingly, the D.C. Circuit found that the error with respect to the other concurrent counts was harmless and affirmed the sentence. U.S. v. Agramonte, 276 F.3d 594 (D.C. Cir. 2001).
D.C. Circuit upholds career offender sentence where underlying drug convictions were not plain error. (120) Although drug quantity was alleged in the indictment, the judge did not submit the drug quantity question to the jury. Because the court treated defendant as having been convicted under 21 U.S.C. § 841(b)(1)(A) and (B), both of which carry maximum sentences of life, the career offender guideline, § 4B1.1, required an offense level of 37 and a guideline range of 30 years to life. If the district court had treated defendant as having been convicted of an offense involving an unspecified quantity of crack under § 841(b)(1)(C) offense (carrying a 30-year maximum) § 4B1.1 would have assigned him an offense level of 34, resulting in a sentencing range of 262-327 months. Defendant argued that the district court’s application of the career offender guideline thus violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The D.C. Circuit agreed that the court’s application of § 4B1.1 was in error. A conviction for the (A) or (B) offense is not proper unless the relevant drug threshold has been stated in the indictment and submitted to the jury. See U.S. v. Fields, 251 F.3d 1041 (D.C. Cir. 2001). However, defendant’s sentence survived plain error review because his underlying convictions for the (A) and (B) offenses survived such review. The evidence of the charged drug quantity was both overwhelming and uncontroverted, and defendant offered no plausible scenario under which it could be disputed. U.S. v. Webb, 255 F.3d 890 (D.C. Cir. 2001).
D.C. Circuit rejects previous language suggesting Apprendi applies to guideline enhancements. (120) In U.S. v. Fields, 242 F.3d 393 (D.C. Cir. 2001) (Fields I), the D.C. Circuit vacated defendants’ sentences, holding that under Apprendi v. New Jersey, 530 U.S. 466 (2000), drug quantity is an element of the offense where a factual determination of the amount of drugs may result in a sentence that exceeds a maximum sentence prescribed in the applicable statute. On rehearing, the D.C. Circuit clarified some “loose language” in Fields I which suggested that Apprendi also applies to a Sentencing Guidelines enhancement that results in a sentence within the statutory range. Apprendi does not apply to enhancements under the guidelines when the resulting sentence remains within the statutory maximum. Any language to the contrary in Fields I is in error and is not the law of this circuit. U.S. v. Fields, 251 F.3d 1041 (D.C. Cir. 2001).
D.C. Circuit requires resentencing under Apprendi despite concurrent life sentences for RICO conspiracy. (120) The government conceded that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the district court committed plain error in imposing life sentence on the drug conspiracy count in the absence of jury findings as to drug quantity. However, the government contended that this error was not reversible because the district court relied on “overwhelming proof” that the conspiracy involved drug quantities necessary to trigger a life sentence under 21 U.S.C. § 841(b)(1)(A). The D.C. Circuit disagreed. The district court relied heavily on the imprecise testimony of various cooperating witnesses. In addition, defendant admitted that he “made a living selling crack,” “worked selling marijuana four to five days a week,” and “had no idea how much marijuana he had sold.” This evidence was far from “overwhelming proof” that defendant’s crimes involved sufficient drug quantities to support a life sentence. The government also argued that the error was not reversible because the life sentence on the RICO conspiracy count was a “statutorily available sentence” under Apprendi. See U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended on rehearing, 244 F.3d 367 (5th Cir. 2001) (no reversal even if 10-year sentence unlawful under Apprendi where no challenge to greater 324-month sentence on another count). Although the court imposed concurrent life sentences on the RICO conspiracy count, there was no clear finding by the trial court that it intended to impose a life sentence under RICO. U.S. v. Fields, 251 F.3d 1041 (D.C. Cir. 2001).
D.C. Circuit says Apprendi not applicable to guideline increase that results in sentence within statutory range. (120) Defendant pled guilty to unlawfully possessing a firearm and unlawfully possessing cocaine. The district court found by a preponderance of the evidence that defendant had threatened to shoot someone with the firearm, a separate felony that under § 2K2.1 (b)(5) called for a four-level enhancement. Defendant argued that Apprendi v. New Jersey, 530 U.S. 466 (2000) required the government to prove the gun threat beyond a reasonable doubt. The D.C. Circuit held that Apprendi is not applicable to guideline increases that result in a sentence within the statutory range. Defendant’s 48-month sentence was far less than the 10-year statutory maximum for the gun possession charge. Although the Supreme Court has granted certiorari, vacated and remanded a guidelines case for further consideration in light of Apprendi, see Clinton v. U.S., 121 S.Ct. 296 (2000), remanding U.S. v. Reliford, 210 F.3d 285 (5th Cir. 2001), this does not amount to a final determination on the merits. The case involved not only guideline enhancements, but also the application of a statutory progression of minimum and maximum sentences under 21 U.S.C. § 841. In re Sealed Case, 246 F.3d 696 (D.C. Cir. 2001).
D.C. Circuit examines remedy for failure to advise defendant he faced life sentence. (120) The district court found that defendant received ineffective assistance of counsel because he went to trial without being informed that he qualified as a career offender who could be sentenced to life imprisonment. It also found, however, that he established only limited prejudice, because the government had not offered a plea bargain. To eliminate any prejudice caused by the ineffective assistance, the district court reduced the offense level by two (to reflect the acceptance of responsibility reduction he might have earned by pleading guilty). Defendant argued that this remedy was inadequate. The D.C. Circuit remanded for further findings on whether defendant might have been able to earn a three level acceptance of responsibility reduction. The district court’s finding that defendant would have pled guilty to receive a two point reduction was in tension with its finding that he would not have pled guilty in time to qualify for the three point reduction. However, the appellate court rejected defendant’s claim that he might have been able to strike a plea bargain with the government. U.S. v. Thompson, 27 F.3d 671 (D.C. Cir. 1994).
D.C. District Court holds career offender guideline unconstitutional. (120) Based on three relatively minor prior drug offenses, defendant was classified as a career offender. The D.C. District Court held that in this particular case, the 30-year minimum sentence for possessing with intent to distribute less than eight grams of cocaine base and heroin violated due process and constituted cruel and unusual punishment. The 8th Amendment would not be a valid basis for challenging the sentence if it were mandated by statute. But the Sentencing Commission is not entitled to the same deference, particularly “where a court is required to impose a sentence that is fundamentally at odds with its judicial notions of fundamental justice.” The guidelines prohibit a court from considering many relevant facts about the offender and the crime. As such they “eliminate this Court’s ability and duty to look behind the mere existence of prior convictions and impose a sentence that has some rational link to the conduct and personal history of the defendant.” U.S. v. Spencer, 817 F.Supp. 176 (D.D.C. 1993).
D.C. Circuit finds resentencing to same sentence after successful appeal was not vindictive. (120) Defendant, the former Mayor of the District of Columbia, originally received a two level enhancement for obstruction of justice, resulting in a guideline range of two to eight months. Citing defendant’s rehabilitative efforts, the judge imposed a six month sentence. The case was remanded by the D.C. Circuit for reconsideration of the obstruction of justice enhancement. At resentencing, the court found the obstruction enhancement improper. This resulted in a guideline range of zero to six months. The judge imposed the same six month sentence, finding that the maximum guideline sentence was justified by defendant’s position as Mayor and his attempted obstruction of justice. On appeal, the D.C. Circuit found no vindictiveness. The judge did not ignore defendant’s rehabilitative efforts, but found that although they warranted a reduction in sentence from eight months to six, the other aggravating factors precluded a further reduction. U.S. v. Barry, 961 F.2d 260 (D.C. Cir. 1992).
Article proposes to simplify guidelines after Booker. (120) As a legislative response to Booker, Professor Frank Bowman proposes a simplified sentencing table consisting of nine base sentencing ranges, each subdivided into three sub-ranges. The base range would be determined by combining facts found by the jury, or admitted in a plea, with the defendant’s criminal history. A defendant’s placement in the sub-ranges would be determined by post-conviction judicial findings of sentencing factors. No upward departures from the base range would be permissible, but defendants could be sentenced below the low end of the range for acceptance of responsibility, or due to a substantial assistance motion or a downward departure. Bowman acknowledges that his proposal depends to some extent on the continued validity of Harris v. U.S., 536 U.S. 545 (2002), but says that even if Harris were overruled, this would not vitiate its major advantages. Frank O. Bowman, Beyond Band-Aids: A Proposal for Reconfiguring Federal Sentencing After Booker, 2005 U. Chi. L. Forum 149 (2005).
Article examines post-Booker sentencing statistics. (120) In a draft article available on the internet, Professor Frank Bowman notes that during 2004, about 72% of all federal sentences were within the guidelines range. However, in the eleven-month period of 2005 following the Booker decision, that percentage dropped to 61.2%. This “guideline compliance rate” declined by only 6.3% in the D.C. Circuit, but by 14.9% in the Ninth Circuit. More than 90% of all districts reported lower percentages of sentences within range after Booker. For example, in the Eastern District of Wisconsin, the percentage of sentences within range fell from 84.7% to 52.9%. The rate in Massachusetts fell from 79.7% to 51.6%. Compliance in the Western District of Washington fell from 64.3% to 37.3%, and in the Southern District of Iowa from 73.7% to 46.6%. Districts with the lowest guidelines compliance rates were Arizona (28.6%); the Eastern District of New York (34.9%); the District of Idaho (37.7%); and the Eastern District of Pennsylvania (Philadelphia) (40%). Professor Bowman notes, however, that of the 10.9% increase in sentences outside the guidelines range, 0.9% were upward departures, and 2.5% were departures requested by the government. The severity of departures and Booker variances has remained constant, with a median reduction of one year. Frank O. Bowman, III, The Year of Jubilee…or Maybe Not: Some Preliminary Observations about the Operation of the Federal Sentencing System After Booker, 43 Houston L. Rev. 279 (2006).
Articles offer differing views of post-Booker sentencing. (120) A number of articles have described the impact of Booker on federal sentencing. A symposium issue of the Stanford Law Review collected articles by many of the major commentators on the Sentencing Guidelines. Robert Weisberg and Marc L. Miller, A More Perfect System: Twenty-five years of Guidelines Sentencing Reform, 58 Stan. L. Rev. 1 (October, 2005). A federal judge’s perspective can be found in Nancy Gertner, Sentencing Reform: When Everyone Behaves Badly, 57 Maine L. Rev. 569, 579 (2005). The impact of Booker on prosecutorial power is discussed in Margareth Etienne, Into the Briar Patch?: Power Shifts Between Prosecution and Defense After U.S. v. Booker, 39 Val. U. L. Rev. 741 (2005). Congress’s possible reaction to Booker is discussed in M.K.B. Darmer, The Federal Sentencing Guidelines After Blakely and Booker: The Limits of Congressional Tolerance and a Greater Role for Juries, 56 S.C. L. Rev. 533 (2005). The leading legislative solutions are explored in Frank O. Bowman, III, Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington, 41 Am. Crim. L. Rev. 217 (2004), and Frank O. Bowman, III, Beyond BandAids: A Proposal for Reconfiguring Federal Sentencing After Booker, 2005 U. Chi. Legal F. 149 (2005); and Frank O. Bowman, III, Mr. Madison Meets a Time Machine: The Political Science of Federal Sentencing Reform, 58 Stan. L. Rev. 235 (2005).
Article discusses Booker’s effect on sentencing practices and litigation. (120) Defense attorneys Alan Ellis, Karen Landau and James Feldman argue that, by making the Sentencing Guidelines advisory, U.S. v. Booker, 543 U.S. 220 (2005) has given defense counsel an opportunity to urge the sentencing judge to impose a sentence below the guideline range based on the defendant’s positive life history and character, even if the guidelines would forbid a departure on this basis. They add that the court can now disregard the “100-to-1” ratio of crack to powder cocaine, limited only by the statutory mandatory minimum. The authors discuss the circuits’ differing views on “plain error” review of Booker errors, as well as the developing caselaw regarding the applicability of Booker to 28 U.S.C. §2255 motions, including retroactivity, the one-year statute of limitations, and successive motions. Alan Ellis, Karen Landau and James Feldman, Litigating in a Post Booker World, ABA Criminal Justice Magazine, Vol. 20, No.2, pp. 24-30 (2005).
Articles assess impact of Apprendi. (120) Two articles and observations by an editor of the Federal Sentencing Reporter discuss the importance and dramatic impact of the Supreme Court’s decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Professor Alan C. Michaels examines Apprendi to determine the extent of the court’s holding and its immediate ramifications, including the effect on federal drug prosecutions under 21 U.S.C. § 841. He argues that Apprendi’s holding, which could be described as a “truth-in-convicting” role, is modest in scope but nevertheless significant. Professors Nancy King and Susan Klein argue that Apprendi is properly labeled a “watershed,” and is bound to change the course of criminal litigation significantly. In an appendix, they collect many of the federal statutes that will be affected by Apprendi and list cases in which those particular statutes are being challenged on Apprendi grounds. They also discuss the likely effect of Apprendi on state sentences. Professor Douglas Berman edits the issue and gives his own view on the significance and long range implications of the Apprendi decision. Alan C. Michaels, Truth in Convicting: Understanding and Evaluating Apprendi, 12 Fed. Sent. Rptr. 320 (May/June 2000); Nancy J. King, & Susan R. Klein,, Apres Apprendi, 12 Fed. Sent. Rptr. 331 (May/June 2000); Douglas A. Berman, Appraising and Appreciating Apprendi, 12 Fed. Sent. Rptr. 303 (May/June 2000).
Article addresses procedural rights under the guidelines. (120) Sara Sun Beale reviews the cases generally declining to recognize constitutional rights to jury trial, confrontation, and proof beyond a reasonable doubt at sentencing. While most commentators have focused either on preguidelines Supreme Court cases involving sentencing or on general due process cases, Beale argues that the telling critique of the guidelines is that criminal defendants have fewer rights at sentencing than civil defendants have at the damage stage of a trial. According defendants the rights they deserve will require either a simplification of the guidelines or a reduction in the federal criminal case load. Sara Sun Beale, Procedural Issues Raised by Guidelines Sentencing: The Constitutional Significance of the “Elements of the Sentence,” 35 William & Mary L. Rev. 147-62 (1993).