Thursday, July 22, 2004
Ninth Circuit Rules Facts Supporting Enhancements Must Be Determined by Juries in Federal Court
By DAVID WATSON, Staff Writer
Reacting to a Supreme Court decision less than four weeks old, the Ninth U.S. Circuit Court of Appeals yesterday joined the Seventh Circuit in ruling that juries, not judges, must determine facts used to enhance sentences in federal court.
The 2-1 ruling is the fourth by a federal appeals court in the wake of Blakely v. Washington, 124 S.Ct. 2531 (2004), decided June 24. That 5-4 ruling held that a Washington state sentencing scheme which allowed judges to determine when an “exceptional” sentence was justified violated the Sixth Amendment right to a jury trial.
The Fifth Circuit ruled last week that Blakely had no impact on the federal sentencing guidelines, while on the same day the Second Circuit certified questions about its applicability to the high court.
The implications of the case have roiled state and federal courts across the country, prompting congressional hearings and widely varying responses at the trial court level. A Web “blog” tracking Blakely fallout has been established by Douglas A. Berman, a professor at Ohio State University’s Moritz College of Law, at http://sentencing.typepad.com.
The solicitor general yesterday asked the high court to expedite review of the Seventh Circuit ruling, United States v. Booker, 2004 WL 1535858, which was issued July 9, and of United States v. Fanfan, a June 28 decision by U.S. District Judge D. Brock Hornby of the District of Maine.
Writing for himself and Judge Kim McLane Wardlaw yesterday, Ninth Circuit Judge Richard Paez said the Seventh Circuit’s approach was the correct one. There is “no principled distinction” between provisions of the federal Sentencing Guidelines requiring judges to make factual determinations used as a basis for sentence enhancements and the Washington scheme invalidated in Blakely, Paez declared.
Paez acknowledged that, in his opinion for the high court in Blakely, Justice Antonin Scalia was careful to point out that the court was not addressing the validity of the federal sentencing regime.
“While the Blakely court only addressed the Washington State sentencing scheme,” Paez wrote, “the manner in which the majority defined the ‘statutory maximum’ compels us to conclude that its reasoning applies with equal force to the Sentencing Guidelines.”
The judge noted that the defendant in the case decided yesterday, Alfred Arnold Ameline, was sentenced to more than 12 years in prison after he pled guilty to conspiring to distribute methamphetamine. A report prepared by federal probation officials concluded Ameline possessed more than two pounds of the drug, though in entering his plea the defendant conceded only that he possessed a “detectable amount.”
U.S. District Judge Sam E. Haddon of the District of Montana rejected testimony at Ameline’s sentencing hearing challenging the probation report’s conclusions, relying on the report to set the defendant’s base offense level at 34. Had the sentence been based only on the quantity of drugs Ameline admitted possessing, his base level would have been 12, yielding a maximum sentence of 16 months.
Like the petitioner in Blakely, Ameline was “subject to dueling ‘statutory maximums’” under the Sentencing Guidelines, Paez said. Though the Ninth Circuit held four years ago in United States v. Hernandez-Guardado, 228 F.3d 1017, that a “statutory maximum” is the longest sentence possible under the criminal law a defendant violated—in Ameline’s case, 20 years—that holding, Paez explained, appeared to be at odds with Blakely, which defined “statutory maximum” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
The 12-year sentence “far exceeded the maximum sentence that the district judge could have imposed simply on the basis of facts admitted by Ameline,” the jurist declared. “This directly parallels the sentencing process held unconstitutional in Blakely.”
Paez rejected the government’s contention that Blakely was inapplicable because the factfinding in which Haddon engaged was authorized by guidelines propounded by a commission, not by federal legislation.
“We are unconvinced that the Congressional delegation of authority to the Sentencing Commission to set presumptive sentencing ranges in the first instance creates any meaningful distinction,” Paez explained, noting that Congress must ratify the guidelines and that it can and has changed them. Nor, he said, was the Ninth Circuit’s power to reach the issue limited by the high court’s 1998 decision in Edwards v. United States, 523 U.S. 511.
Edwards, Paez said, involved a Sixth Amendment challenge to the interpretation of a statute, “not the Sixth Amendment’s effect on the application of the Sentencing Guidelines.”
He also rejected the government’s argument that, if any provision of the Sentencing Guidelines were to be invalidated, the guidelines should be invalidated entirely. The provisions violative of Blakely were severable, he said.
“Although severance would change how those facts are determined, and by whom, severance would have no effect on the Congressional goal of achieving consistency of sentences in cases that involve similar offense conduct. In fact, were we to hold that Blakely precludes application of the Guidelines as a whole, we would do far greater violence to Congress’ intent than if we merely excised the unconstitutional procedural requirements. We are reluctant to establish by judicial fiat an indeterminate sentencing scheme.”
On remand, Paez said, Haddon could, if necessary, impanel a new jury to determine the facts necessary for sentencing under the guidelines, including whether Ameline possessed a firearm in connection with the offense, under a reasonable doubt standard.
He added that in cases currently being tried, judges would have to choose between bifurcating sentencing issues and the use of separate sentencing juries. For future cases, he said, they would also have the option of using special verdict forms if they determined that the introduction of evidence relevant to sentencing during the guilt phase was not unduly prejudicial.
Judge Ronald M. Gould dissented, arguing that the court should have followed the Fifth Circuit’s approach in United States v. Pineiro, 2004 WL 1543170.
“While reasonable jurists may now disagree on the long-range impact of the reasoning of Blakely, in the short run we remain bound to apply the Guidelines unless and until the Supreme Court holds otherwise,” Gould contended.
While there was “some force” to the majority’s argument that the issue in Edwards differed from that posed by Blakely, Gould conceded, he said it “seems odd to hold that twenty years of a regime of sentencing reform, implemented by Congress and elaborated upon by the judiciary through the Sentencing Commission, is swept away by the reasoning of Blakely, a case that expressly says it does not address the Guidelines.”
“Rather, it is premature to lament or to celebrate the demise of the Guidelines in any respect. Such a decision, with its drastic impact on the administration of criminal law and potentially on tens of thousands of cases, in my view should come from the Supreme Court, or from Congress, or not at all.”
Gould noted that in Edwards the Supreme Court “upheld a higher sentence imposed on a defendant for crack-related activities despite that the jury had convicted the defendant on an ambiguous instruction involving cocaine or crack.” He said he found “unpersuasive” the majority’s “distinction between Edwards’s challenge to judge-made determinations of drug types, and his implicit but still valid challenge to judge-made determinations that raised his sentence based on elements beyond those on which the jury had convicted him.”
But the dissenting jurist said he agreed with the majority that Haddon’s procedure in sentencing Ameline was inappropriate, even aside from Blakely. The judge’s reliance on challenged aspects of the probation report as prima facie evidence of the defendant’s conduct improperly shifted the burden to Ameline to establish the factual basis for the base offense level, Gould said.
Copyright 2004, Metropolitan News Company