Before Apprendi v. New Jersey,
530 U.S. 466 (2000), the sentencing judge determined the applicable
drug quantities (and thereby the statutory maximum and minimum penalty
and the guideline range) whether a conviction was by a jury or by a
guilty plea. In other words, before Apprendi
I could probably have accepted a partial plea somewhat along the lines
the defendant proposes, but I as the judge would have made the
determinations about drug quantity and its impact on the sentence.
After Apprendi,
in cases that went to trial, the judge submitted the question of
conspiracy drug quantity to the jury (to determine beyond a reasonable
doubt). The jurys answer determined the applicable statutory maximum. United States v. Perez-Ruiz,
353 F.3d 1, 15 (1st Cir. 2003). But the judge still determined (on
his/her own and by a preponderance of the evidence) the drug quantity
pertinent to the individual defendant and thus the applicability of any
mandatory minimum sentence and the governing guideline range (within
the statutory maximum). See id.
For defendants who pleaded guilty, the sentencing judge alone
determined all those issues, except the statutory cap, which was
controlled by what the Indictment or Information charged. See United States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002). Although Apprendi
resulted in verdict questions to juries about drug quantity, such
questions generally were asked only if the jury had found guilt on the
underlying offense. I have been unable to find any case where a
defendant was permitted to plead guilty and then proceed to jury trial
on drug quantity alone. [My Comment: Don't Booker (7th Cir.) and Ameline (9th Cir.) carry any weight here? Both Courts left open the possibility of sentencing juries.]
As a result of Blakely v. Washington,
124 S. Ct. 2531 (2004), the active judges in this District have ruled
that a defendant is entitled to a jury trial and proof beyond a
reasonable doubt as to all sentence-enhancing factors except criminal
history. But there remains widespread disagreement and uncertainty
across the country on what Blakely
demands for federal sentences. Just yesterday the United States Supreme
Court heard oral argument in a case from this District, United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004) (No. 04-105), and another from the Seventh Circuit, United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted,
73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004) (No. 04-104). Everyone hopes
that early Supreme Court decisions in these two cases will clear up the
confusion engendered by Blakely.
In the meantime, however, this defendant has said through counsel that
he does not want to await the Supreme Court rulings before proceeding.
Because he is entitled to proceed without delay, see 18 U.S.C. § 3161, I must determine what procedure to follow in light of Blakely. I have been unable to find any cases directly on point. I therefore work from basic principles.
Since [a]n indictment must set forth each element of the crime that it charges, Almendarez-Torres v. United States,
523 U.S. 224, 228 (1998), a guilty plea traditionally admitted all the
elements of the crime. A defendant had to plead guilty to the entire
offense or not at all, and a court could not, over the governments
objection, accept a plea to a lesser included offense. United States v. Edmonson,
792 F.2d 1492, 1498 (9th Cir. 1986). The defendant here says that
pleading guilty to conspiracy covers the elements in this case. I do
not believe that scope of the conspiracy can be extracted from the
elements of the offense as that term has been used conventionally and
therefore I would not entertain a partial plea that contested the scope
of the conspiracy. [n. 3] Drug quantity is more difficult. Before Apprendi we were certain that drug quantity was merely a sentencing issue, not an essential part of the conviction. See, e.g., United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir. 1996). Apprendi
taught us that where drug quantity elevated the statutory maximum
sentence, it had to be proven beyond a reasonable doubt to the jury.
But judges could still make all other drug quantity determinations at
sentencing. See, e.g., United States v. Lopez-Lopez, 282 F.3d 1, 22 (1st Cir. 2002). In the post-Blakely
world, however, all sentence-enhancing factors (other than criminal
history) must be proven to a jury beyond a reasonable doubt. Have they
thereby become elements of the offense? Since
drug quantity now must be proven to a jury beyond a reasonable doubt
regardless of what it is called, the old debate over whether it is an
element seems to have lost significance. [n. 4] It certainly does not help resolve the issue before me. [n.5] Therefore, I consider other factors.
It
will be difficult for the government to try the issues of conspiracy
scope and drug quantity without simultaneously presenting a good deal
of evidence about the conspiracy itself. Permitting a plea of guilty to
the conspiracy, but not the scope or quantity, therefore, will produce
disputes at the resulting trial over what is material versus what is
unduly prejudicial evidence. [n.6] The appellate cases generally have
said that defendants cannot stipulate their way out of the governments
right to try a case the way it was charged. See Old Chief v. United States,
519 U.S. 172, 186-87, 190-92 (reiterating standard rule, but holding
that the defendants legal status as a felon is different and that the
government can be compelled to accept such a stipulation). This
background counsels in favor of sustaining the governments objection
to the partial plea as it affects both scope and drug quantity.
I
cannot see any prejudice to the defendant in declining his partial
plea. The primary benefit to the defendant in the proposed partial plea
is the possibility of obtaining a reduced sentence for acceptance of
responsibility under Guideline 3E1.1. That of course will depend on
what the jury and I [n.7] conclude about relevant conduct after trial.
But if the defendant elects at trial to admit the conspiracy (as he
proposes to do in his partial guilty plea), and contests only the drug
quantity and scope of the conspiracy before the jury, he should be able
to make the same arguments about acceptance of responsibility to me at
sentencing. [n.8] True, there may be somewhat more work for his lawyer
in preparing for a broader trial (practically speaking the dimensions
of the trial will probably not vary a lot) but, since the defendant has
a court-appointed lawyer, this factor is an expense to the taxpayer,
not the defendant.
After all is said and done, a defendant has a right to a jury trial, but he has no absolute right to plead guilty. Santobello v. New York, 404 U.S. 257, 261-62 (1971). A court may reject a plea in exercise of sound judicial discretion. Id.
at 262. I conclude that the defendant cannot enter a partial plea of
guilty while reserving the issue of conspiracy scope for a jury trial.
The ability to reserve drug quantity is a closer question. But I also
conclude in the uncertain state of post-Blakely federal sentencing that the prudent course is to reject the partial plea on that score as well.
[n. 1] A conspiracy to possess and possess with intent to distribute.
[n.
2] This is specifically not a case where the defendant is willing to
plead guilty to the offense and stipulate that the judge may determine
the relevant sentencing facts, a possibility suggested by Blakely v. Washington,
124 S. Ct. 2531, 2541 (2004). The defendant also wants to go to trial
on venue, but a guilty plea would waive his right to jury trial on
venue. See United States v. Calderon,
243 F.3d 587, 590 (2d Cir. 2001). Since I am rejecting the plea of
guilty, however, the defendant may continue to press his venue
challenge at trial.
[n.3] The Superseding Indictment does not
allege any particular scope for the conspiracy beyond the quantity
allegations. Presumably the defendant knows what the government will
state in its prosecution version for a factual basis for the plea at
any Rule 11 proceeding and is unwilling to agree to the governments
version.
[n.4] As recently as Jones v. United States, 526 U.S.
227, 232 (1999), the Court said: 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 the indictment,
submitted to a jury, and proven by the Government beyond a reasonable
doubt.
[n.5] The debate
creates certain ironies. The government takes the position that
sentence - enhancing factors are not elements because nationally the
government has argued that Blakely
does not apply to federal sentencing. But it wants me not to accept the
partial plea, an argument that would be easier to make by calling them
elements that the defendant must admit to in order to plead guilty. The
government has carefully refrained from doing so. The defendant faces
the same dilemma in reverse.
[n.6] It will also save only minimal court time at best.
[n.7] Blakely does not seem to restrict the judges role in downward adjustments of the Guideline range such as 3E1.1 permits.
[n.8]
It is already too late to get the third point under 3E1.1(b) because of
the late stage of the proceedings (the jury has been empaneled).
Now
that the argument as to whether a particular fact that enhances the
guideline offense level is an element, a sentencing factor, or Mary
Jane, is irrelevant, as we are dealing at worst with functional
equivalents of elements of aggravated offenses as we go up the offense
level, we should all be insisting that with indictments that charge
merely "in excess of 5 kilograms" but offer no specific amount, the indictments are insufficient as a matter of law to submit the issue to the jury beyond the 5 kilograms, i.e., that any higher amount had to be specifically alleged, since we are no longer dealing with the post-Apprendi and pre-Blakely
situation in which the sole concern was whether the indictment charged
and the jury found an amount to trigger a maximum of 20 or 40 years or
life. Instead each offense level in the drug quantity table is an, if
you will, aggravated version of the lower offense, and had to be
specifically charged. Just some food for thought. Any comments will be
greatly appreciated.
