BARRY J. PORTMAN

Federal Public Defender

LARRY KUPERS

Assistant Federal Public Defender

1301 Clay Street, Suite 200C

Oakland, CA 94612

Telephone: (510) 637-3500

Counsel for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

Defendant.

)

CR No.

DEFENDANT’S SENTENCING MEMORANDUM REGARDING APPLICATION OF THE FEDERAL SENTENCING GUIDELINES AFTER BLAKELY v. WASHINGTON

DATE: , 2004

TIME:

PLACE: COURTROOM #

INTRODUCTION

Defendant will appear before this Court to be sentenced on ==, 2004. United States Probation has submitted a final presentence report calculating defendant’s guideline sentence based on the November 2003 Guideline Manual. In a recent decision, Blakely v. Washington, 2004 WL 1402697 (June 24, 2004), the Supreme Court has held unconstitutional any system of guidelines that permits or mandates a sentencing judge to increase a defendant’s sentence upon the finding of a fact not found by the jury beyond a reasonable doubt. The Blakely decision renders infirm a significant portion of the federal guideline system under which Probation calculated defendant’s sentence. Accordingly, defendant moves this Court to strike down as unconstitutional several guideline provisions and re-calculate defendant’s sentence using only the guideline provisions consistent with Blakely.

PERTINENT BACKGROUND

1) Set out Probation’s guideline calculations for defendant’s sentence.

2) Single out all the applicable upward adjustments infirm under Blakely.

3) Explain in the case of each upward adjustment how it is predicated on a fact not found by the jury during the guilt phase, not of a recidivist nature, and not admitted by defendant.

ARGUMENT

I. BLAKELY RENDERS CONSTITUTIONALLY INFIRM ALL GUIDELINE UPWARD ADJUSTMENTS AND DEPARTURES PREDICATED ON FACTS (OTHER THAN RECIDIVIST OR ADMITTED FACTS) THAT WERE NOT CHARGED IN THE INDICTMENT AND FOUND BY THE JURY BEYOND A REASONABLE DOUBT

The underlying facts of Blakely v. Washington are critical for understanding the application of that decision to the federal sentencing guideline scheme. Ralph Blakely, charged by the state of Washington with first-degree kidnaping, reached a plea agreement with the prosecutor whereby Blakely pleaded guilty to second-degree kidnaping involving domestic violence and use of a firearm in exchange for the prosecutor’s dismissal of the first-degree kidnaping charge. Washington state has a guideline sentencing scheme that provides two kinds of statutory sentence maxima for each offense. First, because second-degree kidnaping is a class B felony, Blakely cannot be sentenced to more than 10 years imprisonment. Second, under the scheme engendered by a Washington state sentencing reform act, there is a standard or presumptive sentencing range of 49 to 53 months.

The first statutory maximum, 10 years, sets an absolute limit beyond which the sentencing judge cannot go. The second statutory maximum, 53 months (i.e., the high end of the presumptive sentencing range) is not an absolute limit; rather, the sentencing judge can adjust the sentence upward if the judge finds one or more of the statutorily-enumerated aggravating factors (or an analogous factor) to be present in the case. Such an upward adjustment or “exceptional sentence” is legal, however, only if the judge explicitly finds an aggravating factor apart from the elements found by the jury during the guilt phase of the case.

In Blakely’s case, the Washington state judge, rejecting the prosecutor’s recommendation of 53 months, found that Blakely had acted with deliberate cruelty, one of the statutorily-enumerated aggravating factors. On that basis, the judge adjusted Blakely’s sentence upward by 37 months for a final sentence of 90 months. Blakely appealed, citing Apprendi for the proposition that 37 months could not be tacked on to his presumptive sentence maximum unless the fact supporting the additional increment of punishment was found by a jury beyond a reasonable doubt.

The Supreme Court agreed with Blakely, concluding that the upward adjustments of the Washington state scheme violate the constitutional rule of Apprendi v. New Jersey, 530 U.S. 466, 490 (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.” (Cited by Blakely, 2004 WL 1402697 at * 4). The Blakely Court noted that the Court’s precedents clarified what the term “statutory maximum” means for Apprendi purposes: “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 2004 WL 1402697 at * 4 (italics in original).

Applying this definition of “statutory maximum,” the Blakely Court made it very clear that in guideline systems such as the Washington state scheme that contain two types of statutory maxima (e.g., in Blakely’s case, there was a 10-year maximum because the offense of conviction was a Class B felony and a 53 month maximum because that was the high end of the presumptive sentence range for the offense of conviction), the Apprendi rule applies to the lower statutory maximum:

In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

Id. Because the Washington state sentencing judge could not impose a sentence above 53 months unless he explicitly found one or more additional facts, the Apprendi rule applies to the 53-month maximum.

This reasoning applies equally to the federal guideline scheme. Each federal offense carries a statutory maximum set by Congress and typically contained in the statute creating the criminal offense. But the guideline system sets up a lower or subsidiary statutory maximum calculated by ascertaining the base offense level assigned to the offense of conviction and referencing that offense level to the defendant’s criminal history. The result is a sentencing range. The judge cannot increase the defendant’s sentence above the high end of that range unless he or she finds one or more additional facts. Under the guideline system, the judge is directed to apply various sentencing increases if he or she finds beyond a preponderance various respective aggravating facts. These upward adjustment provisions are every bit as infirm as the provision in the Washington state scheme that permitted the judge to increase Blakely’s sentence from 53 to 90 months. As such, these upward adjustment provisions are unconstitutional.

Any attempt by the government to salvage these enhancement provisions by distinguishing the federal guideline scheme from the Washington state scheme will be unavailing. In the Washington state scheme, the guideline enhancement provisions are promulgated directly by the legislature whereas in the federal scheme the legislature, Congress, delegated the authority to promulgate such guideline provisions to an independent agency within the Judicial Branch. The majority opinion in Blakely makes no mention of this distinction; its silence is telling. Justice O’Connor, writing in dissent, agrees: “The fact that the Federal Sentencing Guidelines are promulgated by an administrative agency nominally located in the Judicial Branch is irrelevant to the majority’s reasoning.” Blakely, 2004 WL 1402697 at * 16(O’Connor, J., dissenting). Justice O’Connor continues, “The structure of the Federal Guidelines likewise does not, as the Government half-heartedly suggests, provide any grounds for distinction.”. Id. Her analysis of the guideline enhancement provisions in Chapters 2 and 3 of the Guidelines “suggests [such provisions] will meet the same fate [as the Washington state enhancement provisions].” Id.

Accordingly, Blakely compels this Court to rule that the enhancement provisions of the Guidelines are unconstitutional.

II. THE ONLY CONSTITUTIONAL REMEDY IS TO APPLY ONLY THOSE GUIDELINE PROVISIONS CONSISTENT WITH THE RULE OF BLAKELY

As demonstrated above, the inexorable implication of the Supreme Court’s holding in Blakely is that a federal defendant’s sentence cannot be increased under a guideline provision designed to trigger upon a judicial finding to a preponderance of an aggravating factor unless the aggravating fact concerns a prior conviction or has been admitted by the defendant. Thus, Blakely renders the following categories of guideline provisions unconstitutional under the current scheme:

(1) alternative enhanced base offense levels;

(2) aggravating specific offense characteristics;

(3) cross-references;

(4) Chapter 3 aggravating factors; and

(5) upward departures.

As a result, this Court, in sentencing defendant, cannot apply any of these categories of upward adjustments in the federal guideline scheme. No similar constitutional bar applies to any downward adjustments or any sentence increase based on criminal history categorization. This Court cannot take into account in support of an aggravated sentence defendant’s purported relevant conduct except within the guideline range that results from beginning at the base offense level, and factoring in any applicable downward adjustments.

The government might argue that application of Blakely does not nullify the Guidelines’ upward adjustment provisions but rather requires that such provisions are triggered only upon proof to a jury beyond a reasonable doubt of the predicate aggravating fact. Thus, the government might ask this Court to empanel a jury to hear the government’s evidence regarding certain aggravating facts. If the jury finds the government has proven such facts beyond a reasonable doubt, then this Court can apply the guideline enhancements triggered by such facts.

The government is wrong. Congress never delegated to the Sentencing Commission the authority to make new criminal laws that define the elements of new crimes and set out the penalties for committing such crimes. Yet to amend the Guidelines so that the upward adjustment provisions of the Guidelines apply only upon provision of the Apprendi right to a jury trial would be to construe such provisions as enacting new criminal offenses. Because Congress never delegated to the Commission the power to enact new criminal laws, even were such a delegation in principle permissible under our constitutional framework, the upward adjustment guideline provisions cannot be rendered constitutional by reading into them Apprendi rights.

A. Adjudication of Whether a Guideline Enhancement Provision Applies, Consistent with Apprendi and Blakely, is Necessarily the Adjudication of Guilt or Innocence of a New Compound Criminal Offense

Blakely requires that any guideline adjustment that increases a defendant’s sentence comply with the rule of Apprendi. That rule, a consequence of the Sixth Amendment’s guarantee of a jury trial to the criminally accused, requires that any fact potentially triggering an increased sentence be charged in an indictment and proved to a jury beyond a reasonable doubt.

It is apparent from Apprendi and its precedents that for constitutional purposes, a fact or factor

is either an element of an offense (with the constitutional guarantees that it is charged in an indictment and proved to a jury beyond a reasonable doubt) or it is merely a sentencing factor, something the court can elect to take into account in sentencing with the bounds of its discretion (i.e., within the base guideline sentencing range for the offense of which the defendant was convicted). For example, in Castillo v. United States, 530 U.S. 120 (2000), the Court sets out the issue in the opening paragraph of the decision: “In this case we once again decide whether words in a federal criminal statute create offense elements (determined by a jury) or sentencing factors (determined by a judge).” In Jones v. United States, 526 U.S. 227, 232 (1999), the Court stated: “Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in an indictment, submitted to a jury and proven by the Government beyond a reasonable doubt.” Thus, the Court never contemplated or left open the possibility that there could be a tripartite classification of (i) elements (charged in the indictment and proved to a jury beyond a reasonable doubt), (ii) sentencing factors (not charged in the indictment and only considered by a judge during the sentencing phase) and (iii) a third category of Apprendi sentencing factors (proved to a jury beyond a reasonable doubt but possibly not charged in the indictment because not considered elements).

Justice Thomas’ incisive concurrence in Apprendi explains why this chimerical third category is a non-starter. The reason is that the Apprendi rule, according to Justice Thomas, is rooted in the fundamental question of what is and is not a crime: “This case turns on the seemingly simple question of what constitutes a ‘crime.’” Apprendi, 530 U.S. at 499 (Thomas, J., concurring). In other words, the Apprendi rule is fundamentally a question of what is and is not an element. Justice Thomas further explains:

Sentencing enhancements may be new creatures, but the question that they create for courts is not. Courts have long had to consider which facts are elements in order to determine the sufficiency of an accusation (usually in an indictment). The answer that courts have provided regarding the accusation tells us what an element is, and it is then a simple matter to apply that answer to whatever constitutional right may be at issue in a case – here Winship and the right to a trial by jury.

. . . .

This authority establishes that a “crime” includes every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment). Thus, if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact – of whatever sort, including the fact of a prior conviction – the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime, Similarly, if the legislature, rather than creating grades of crimes, has provided for setting the punishment of a crime based on some fact – such as a fact that is proportional to the value of stolen goods – that fact is also an element. No multi-factor parsing of statutes, of the sort that we have attempted since McMillan, is necessary. One need only look to the kind, degree or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact necessary for that entitlement is an element.

Id. at 500-501 (Thomas, J., concurring). Thus, there can be no hybrid category of Apprendi-strength sentencing facts that somehow are not elements of aggravated crimes.

Blakely confirms this pristine dichotomy between elements and sentencing factors. At the very start of the majority opinion’s legal discussion, Justice Scalia writes that the Apprendi rule “reflects two longstanding tenets of common-law criminal jurisprudence . . . .” Blakely, 2004 WL 1402697 at *4. The second tenet is: “[A]n accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and it is no accusation in reason.” Id. (quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872)). The majority opinion’s according of prominence to this common-law tenet indicates unequivocally that any fact falling under the Apprendi rule is a fact that must be charged in the indictment as part of the crime or offense charged against the defendant. Thus, Blakely, Apprendi and their precedents leave no conceptual space for a fact or factor that must be proved to a jury beyond a reasonable doubt and yet is somehow distinguishable from an element of a criminal offense.

Accordingly, if a court attempts to remedy Apprendi error with regard to guideline enhancement provisions and the procedural framework by which they are applied (i.e., proved to a judge beyond a preponderance), and does so by requiring that the predicate facts for such provisions be charged in an indictment and proved to a jury beyond a reasonable doubt, than this construction of the sentencing guidelines and their enabling act transforms the predicate facts into elements of aggravated crimes. Cf. Blakely, 2004 WL 1402697 at * 22 (Breyer, J., dissenting) (available option in wake of Blakely “would be for legislatures to subdivide each crime into a list of complex crimes, each of which would be defined to include commonly found sentencing factors such as drug quantity, type of victim, presence of violence, degree of injury, use of gun, and so on.”).

B. Congress Did Not Delegate to the Sentencing Commission the Authority to Enact New Criminal Offenses

The Sentencing Reform Act of 1984, by its plain language and its legislative intent, creates an agency within the Judicial Branch, the United States Sentencing Commission, and delegates to the Commission very specific powers with regard to federal sentencing law and only with regard to federal sentencing law. See 28 U.S.C. § 994 (proving in pertinent part that “[t]he purposes of the United States Sentencing Commission are to . . . establish sentencing policies and practices for the Federal criminal justice system . . . and develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code.”). At no time has Congress delegated the Commission any authority or powers outside the area of federal sentencing. See also Mistretta v. United States, 488 U.S. 361, 369 (1989) (“The Responsibilities of the Commission”).

Specifically, Congress has not delegated its authority to create through legislative enactment new federal offenses. That such authority resides with Congress is beyond dispute. Since the Crimes Act of 1790, an act that created the first serious federal offenses apart from those found in the Constitution, Congress has had exclusive authority over the creation of federal felony offenses. As the Supreme Court stated in Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion):

Our national government is one of delegated powers alone. Under our federal system the administration of criminal justice rests with the States except as Congress, acting within the scope of those delegated powers, has created offenses against the United States.

Thus, whether or not Congress in principle can delegate to an agency its power to enact federal crimes (or at least serious federal crimes), the simple fact here is that Congress has not delegated such power to the United States Sentencing Commission.

Therefore, because neither the Sentencing Reform Act of 1984 or any other congressional legislation delegated to the Sentencing Commission the power to enact or promulgate federal criminal offenses, and because construing guideline enhancement provisions to comply with the procedural protections of Apprendi and Blakely transforms the triggering aggravating facts for such provisions into elements of new aggravated crimes, such a construction of the federal guidelines is unconstitutional.

Accordingly, this Court must re-calculate defendant’s final guideline sentence as follows:

Defendant’s base offense level is:

Defendant receives a two-level downward adjustment for minor role:

Defendant receives a three-level downward adjustment for acceptance of responsibility.

Defendant’s final offense level is:

Defendant’s criminal history category is:

Given final offense level == and criminal history category ==, defendant’s final guideline range is: == .

Once the Court reaches the final guideline range through the foregoing steps, defendant respectfully requests that this Court take one additional step by granting a downward departure to a sentence of == months. The reasons supporting the departure request are set forth in Section III of this memorandum. Alternatively, for the same reasons, defendant respectfully requests that this Court impose a sentence at the low end of the final guideline range.

III. THERE ARE COMPELLING GROUND SUPPORTING A DOWNWARD DEPARTURE TO A SENTENCE OF == MONTHS

====.

CONCLUSION

For the foregoing reasons, defendant == respectfully moves this Court to declare unconstitutional any upward adjustments in the federal sentencing guidelines not predicated on recidivist or stipulated facts unconstitutional, apply only the remaining guideline provisions in sentencing defendant, and, because a downward departure is appropriate, sentence defendant to == months.

Dated: , 2004 Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

LARRY KUPERS

Assistant Federal Public Defender