IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
UNITED STATES OF AMERICA
Plaintiff,
v. No. 3:03-CR-434-D
KATHY CHEWNING,
Defendant.
DEFENDANT’S SUPPLEMENTAL OBJECTION TO THE PRESENTENCE REPORT
Comes now before the Court the Defendant, Kathy Chewning (hereinafter “Ms. Chewning”), with her Supplemental Objection to the Presentence Report prepared by the United States Probation Office on May 6, 2004.
1. Blakely v. Washington
On June 24, 2004, the United States Supreme Court issued a decision in Blakely v.
Washington
that has dramatically changed the landscape of the United States Sentencing
Guidelines and their effect on sentencing in federal court. In Blakely v. Washington,
the
Court found the State of Washington’s sentencing procedure did not comply with the Sixth
Amendment and applied the rule expressed in Apprendi v. New Jersey: “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 Blakely the Court had before it Washington’s determinate sentencing scheme which
are much like the federal sentencing guidelines. Ralph Howard Blakely pled guilty to second-degree kidnapping and allegations of domestic-violence and a firearm, but no other relevant
facts. In Washington the statutory maximum for second-degree kidnapping, a class B felony,
is ten (10) years confinement.
However, there are other provisions of state law that the
further limit the range of sentences the judge may impose. Washington’s Sentencing Reform
Act specified a standard range of forty-nine (49) to fifty-three (53) months for the offense
of second-degree kidnapping
with a firearm.
This standard range can be increased if the
sentencing court finds “substantial and compelling reasons justifying an exceptional
sentence”
and the Act specifies a non-exhaustive list of aggravating factors that can justify
a departure.
At sentencing, the state court upwardly departed thirty-seven (37) months beyond the
standard maximum and sentenced Blakely to ninety (90) months. The sentencing court
justified the sentence based on the factual finding that Blakely acted with “deliberate
cruelty”, a statutorily enumerated ground for upward departure in domestic violence cases.
Blakely appealed arguing that the sentencing procedure deprived him of his federal
constitutional right to have a jury determine beyond a reasonable doubt all facts legally
essential to his sentence because he had neither admitted the facts supporting the finding in
his plea nor were they found by a jury.
At the United States Supreme Court, the State argued that Blakely’s sentence did not violate the rule announced in Apprendi because the relevant statutory maximum was not fifty-three (53) months, but the ten (10) year maximum for class B felonies and Blakely only received a sentence of ninety (90) months. The Court soundly rejected the argument and held:
Our precedents make clear, however, that the “statutory
maximum” for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant. 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. When
a judge inflicts punishment that the jury's verdict alone does not
allow, the jury has not found all the facts “which the law makes
essential to the punishment,” and the judge exceeds his proper
authority.
Accordingly, the Court remanded the case to the sentencing court finding that Blakely was
sentenced to prison for more than three (3) years beyond what the law allowed for the crime
to which he confessed. “The Framers would not have thought it too much to demand that,
before depriving a man of three more years of his liberty, the State should suffer the modest
inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals
and neighbours,’ rather than a lone employee of the State.”
2. Blakely Applies to the United States Sentencing Guidelines
In footnote nine (9) of the Court’s opinion, the majority notes that the United States
was concerned that a ruling in favor of Blakely would call the federal guidelines into serious
doubt. “The United States, as amicus curiae, urges us to affirm. It notes differences between
Washington’s sentencing regime and the Federal Sentencing Guidelines but questions
whether those differences are constitutionally significant . . . . The Federal Guidelines are not
before us, and we express no opinion on them.”
A further look at the brief of the Solicitor General of the United States, the top government lawyer for the Supreme Court, reveals the reasoning that a holding such as the Court came up with in Blakely would jeopardize the Federal Sentencing Guidelines. The Solicitor General writes:
A holding that Apprendi applies to the departure
determination in this case would raise the question whether
Apprendi also applies to departure determinations in other
guidelines systems.
Even more substantial questions would
arise if the Court rules that Apprendi applies here based on
petitioner's theory that the statutory maximum for purposes of
Apprendi is the punishment that would be imposed without any
findings of fact other than the " 'facts reflected in the jury
verdict alone' or the guilty plea alone." If the "facts reflected in
the jury verdict alone" are the elements of the offense,
petitioner's theory would mandate the application of Apprendi
to any facts, other than the offense elements, that increase the
defendant's punishment.
Such a rule would have profound consequences for the
federal Guidelines. As explained more fully below, facts other
than the elements of the offense enter into almost all of the
calculations under the Guidelines, beginning with the most basic
calculations for determining the offender's presumptive
sentencing range. A decision in favor of petitioner could thus
raise a serious question about whether Apprendi applies to
myriad factual determinations under the Guidelines.
While the Government did offer some possible distinctions between Washington’s
sentencing guidelines and the federal sentencing guidelines,
it was clearly of the view that
a ruling in favor of Blakely could well invalidate the federal guidelines system. Indeed, the
dissenters noted that:
The structure of the Federal Guidelines likewise does not,
as the Government half-heartedly suggests, provide any grounds
for distinction. Washington’s scheme is almost identical to the
upward departure regime established by 18 U.S.C. § 3553(b)
and implemented in USSG § 5K2.0. If anything the structural
differences that do exist make the Federal Guidelines more
vulnerable to attack.
As alluded to above, it was not only the Government that had a view that the ruling
in Blakely could have far-reaching effects on the United States Sentencing Guidelines, but
also four (4) dissenting members of the Court. The lead dissent, authored by Justice
O’Connor and joined in part by Chief Justice Rehnquist and Justices Kennedy and Breyer,
predicted that the “practical consequences of today’s decision may be disastrous . . . .”
Justice O’Connor explained that “Washington’s sentencing system is by no means unique”
since “[n]umerous other States have enacted guidelines, as has the Federal Government.”
Justice O’Connor warned that “[t]oday’s decision casts constitutional doubt over them all
and, in so doing, threatens an untold number of criminal judgements.” Justice O’Connor
chided the majority for “ignor[ing] the havoc it is about to wreak on trial courts across the
country.”
Justice O’Connor concluded by explaining that “the ‘extraordinary sentence’
provision struck down today is as inoffensive to the holding of Apprendi as a regime of
guided discretion could possibly be” because “the State’s ‘real facts’ doctrine precludes
reliance by sentencing courts upon facts that would constitute the elements of a different or
aggravated offense.
In Justice O’Connor’s view, “If the Washington scheme does not
comport with the Constitution, it is hard to imagine a guidelines scheme that would.”
Justice Breyer also dissented. In concluding his dissent, he observed, “Until now, I
would have thought the Court might have limited Apprendi so that its underlying principle
would not undo sentencing reform efforts. Today’s case dispels that illusion.”
The Court’s
opinion, Justice Breyer concluded, would “at a minimum . . . set[] aside numerous state
efforts in that direction. Perhaps the Court will distinguish the Federal Sentencing
Guidelines, but I am uncertain how.”
As a result, thought Justice Breyer,
this case affects tens of thousands of criminal prosecutions, including federal
prosecutions. Federal prosecutors will proceed with those prosecutions subject
to the risk that all defendants in those cases will have to be sentenced, perhaps
tried, anew.
It is abundantly clear that there can be no reasonable argument made that the Court’s decision in Blakely does not apply to the federal sentencing guidelines. I would ask the court to faithfully follow the logic and principle of the Supreme Court, and since this is its most recent pronouncement if its contrary to either earlier Fifth Circuit decisions or Supreme Court decisions, this court must follow it in preference to those earlier statements.
3. Objections
Pursuant to USSG 2K2.1(a)(5), the base offense level in this case is eighteen (18).
There is no argument that the base offense level does not apply because the indictment
specifically charged Ms. Chewning with violations of 26 U.S.C. §§ 5845(a) & (f), 5812,
5861(d) & (e), & 5871 and she pled guilty to the indictment and stipulated to those facts in
the factual resume. Nor is there an argument that two (2) additional levels should not be
added pursuant to USSG § 2K2.1(b)(3)
because a destructive device is defined in 26
U.S.C. § 5485(f) in the indictment and Ms. Chewning pled guilty to the indictment and
stipulated to that fact in the factual resume. Accordingly, Ms. Chewning adjusted offense
level is twenty (20) and pursuant to Blakely v. Washington that offense level provides the
relevant statutory maximum of 33-41 months based upon a Criminal History Category of I.
Any sentence above this statutory maximum violates Ms. Chewning’s Sixth Amendment
rights.
3.1 Objection One
On page nine (9), paragraph forty-four (44) of the PSR it sets forth a two (2) level upward adjustment pursuant to USSG § 3B1.1(c) for Ms. Chewning’s role in the offense. Specifically the PSR states, “The defendant was the primary contact person in this offense. It was the defendant who arranged the majority of the transactions with the weapons. She initiated most of the telephone calls to the CS and would arrange the time and location for the exchange. Therefore, she served as an organizer of the criminal activity, and 2 levels are added, pursuant to USSG § 3B1.1(c).”
Ms. Chewning objects to this two (2) level enhancement pursuant to Blakely v. Washington. Ms. Chewning was not provided with notice of this potential enhancement in the indictment, nor did a jury find this fact beyond a reasonable doubt, nor did she admit to these facts in her plea of guilty. Accordingly, this two level enhancement increased Ms. Chewning’s relevant statutory maximum of 33-41 months which neither the Sixth Amendment or Blakely allows.
3.2 Objection Two
On page nine (9) paragraph forty-two (42) of the Presentence Report, Ms. Chewning
receives a two (2) level enhancement pursuant to USSG § 2K2.1(b)(4) due to the allegation
that the hand grenade had been stolen.
The only allegation in the Presentence Report is
that, “The hand grenade had been stolen from the U.S. military. Therefore, 2 levels are
added.”
Again, Ms. Chewning objects to this two (2) level enhancement pursuant to Blakely v. Washington. Ms. Chewning was not provided with notice of this potential enhancement in the indictment, nor did a jury find this fact beyond a reasonable doubt, nor did she admit to these facts in her plea of guilty. Accordingly, this two level enhancement increased Ms. Chewning’s relevant statutory maximum of 33-41 months which neither the Sixth Amendment or Blakely allows.
4. Revised Sentencing Guideline Range
Pursuant to these supplemental objections under Blakely v. Washington, Ms. Chewning’s new guideline range should be calculated as follows:
Base Offense Level USSG § 2K2.1(a)(5) 18
Destructive Device USSG § 2K2.1(b)(3) +2
Offense Level 20
Acceptance of Responsibility USSG § 3E1.1(a) & (b) -3
Offense Level 17
Downward Departure Motion USSG § 5K1.1 -2
Total Offense Level 15
With a total offense level of fifteen (15) and a Criminal History Category of I, Ms. Chewning’s appropriate guideline range is eighteen (18) to twenty-four (24) months.
Respectfully submitted this 1st day of July, 2004.
IRA R. KIRKENDOLL
Federal Public Defender
_______________________________
JASON D. HAWKINS
Assistant Federal Public Defender
Federal Public Defenders Office
525 Griffin Street, Suite 629
Dallas, Texas 75202
214.767.2746
214.767.2886 facsimile
Texas Bar No. 00795763
CERTIFICATE OF SERVICE
I, Jason D. Hawkins, hereby certify that on July 1, 2004, a copy of the foregoing motion was hand delivered to the United States Attorney’s Office, attention Mike Gill, at 1100 Commerce Street, 3rd Floor, Dallas, Texas, 75202 and to the United States Probation Office, attention Juliana Moore, 1100 Commerce Street, 13th Floor, Dallas, Texas 75202.
_______________________________
JASON D. HAWKINS
Assistant Federal Public Defender