Puerto Rico Association of Criminal Defense Lawyers

Another Lesson Plan from Judge Gertner

In another of her impressive opinions on sentencing issues, Judge Gertner has issued a Sentencing Memorandum in United States v. Malouf, No. 03-cr-10298-NG (D.Mass. June 14, 2005).  The first few paragraphs read as follows:

This case is about the interpretation of an important federal drug distribution statute, 21 U.S.C. § 841, under which the defendant Michael Malouf (“Malouf”) was indicted. Section 841 creates a staircase of sentences, with steep increases at each step – statutory maximums up to life imprisonment and mandatory minimums that increase from five, to ten, and to twenty years. Where the defendant is situated on this sentencing staircase depends upon the type and quantity of drugs involved, whether the defendant has a prior felony drug conviction, and whether death or bodily injury resulted from the offense.

The interpretation of the statute is complicated by recent changes in Supreme Court sentencing law, embodied by Blakely v. Washington, 124 S. Ct. 2531 (2004), United States v. Booker, 125 S. Ct. 738 (2005), and Shepard v. United States, 125 S. Ct. 1254 (2005). This law substantially impacts the application of each factor in the statute - in particular, prior convictions (implicating Almendarez-Torres v. United States, 523 U.S. 224 (1998)), bodily injury (implicating Jones v. United States, 526 U.S. 227 (1999), and drug quantity - that increases the statutory maximum penalty (implicating Apprendi v. New Jersey, 530 U.S. 466 (2000)), and/or the mandatory minimums (implicating Harris v. United States, 536 U.S. 545 (2002)). The question is whether, as the Supreme Court’s decisional law has changed, the interpretation of 21 U.S.C. § 841 should likewise change.

Specifically, the sentencing of Michael Malouf raises the following questions: (1) Do the drug quantities outlined in 21 U.S.C. § 841 comprise elements of offenses, or sentencing factors? If the former, the relevant case is Apprendi, a jury trial is required and the standard of proof is beyond a reasonable doubt; if the latter, it is Harris, drug quantity can be determined by a judge, and the standard is a fair preponderance of the evidence. (2) What is the continued efficacy of Harris in the light of the Court’s rulings in Blakely and Booker? (3) What is a district court to do when the First Circuit’s interpretation of § 841 relies on Supreme Court precedent which predates Blakely and Booker? (4) In the alternative, however the facts are characterized (as sentencing factors or elements), where facts have a significant, indeed determinative impact, does the Due Process Clause of the Fifth Amendment require the application of the beyond a reasonable doubt standard?

As you can tell, the Malouf Sentencing Memorandum covers a lot of ground, and I strongly recommend you read it all.

When the Not-So-Smart Crowd Governs ...

Last year we had this bill [H.R. 4547] in Congress - in the midst of the Blakely decision -- that would have added more mandatory minimum sentences. I wrote about it at Macondo Law in this post:

Drug Points to Start Carding Customers?

More Mandatory Minimums? Even before Blakely was decided, Rep. James Sensenbrenner (R-Wis.) introduced a bill that would increase from one year to 10 the mandatory minimum sentence for anyone 21 or older who sells any amount of a controlled substance (even a single joint) to someone under 18. A second offense of this sort would trigger a mandatory life sentence.

This year we have pending H.R. 1528, the crazy sentencing bill with the so-called Booker-fix, of which I wrote about here and here.

Apparently not having satisfied its addiction to ever harsher punishments (of others, of course), the House of Representatives is now considering H.R. 1279, the "Gang Deterrence and Community Protection Act of 2005," an extremely harsh and unnecessary bill that includes many new and increased federal mandatory minimum sentences. As Families Against Mandatory Minimums (FAMM) describes the bill:

• Adds many new mandatory minimum penalties to the criminal street gangs statute;
• Broadens the definition of a street gang, and changes the definition of crime of violence to include drug trafficking crimes that involve no violence whatsoever;
• Increases from five to seven years the mandatory consecutive sentence for carrying or possessing a firearm in connection with a drug trafficking offense or violent felony;
• Increases the mandatory penalty for discharging a firearm from ten to 15 years, and
• Makes defendants convicted of “conspiracy” to commit drug trafficking or crimes of violence eligible for the mandatory consecutive firearm penalties if a firearm is involved, even if the defendant did not possess or use the firearm.

You can access FAMM's initial assessment of H.R. 1279. (PDF)  And you can see this post at TalkLeft, which explains that the ACLU has also taken action, and it also mentions that

There is a Senate version of the bill, S. 155, introduced by Sen. Diane Feinstein and Sen Cornyn, John [TX]; Sen Grassley, Chuck [IA]; Sen Hatch, Orrin G. [UT] and Sen Kyl, Jon [AZ].  H.R. 1279 is an outgrowth of last year's Feinstein-Hatch bill, which we lambasted here and here as fear-mongering and political pandering.

For a non-legalese explanation of the current bill, see this Modesto Bee article. As to what's wrong with increasing the number of juveniles transferred to adult court, see this Vince Shiraldi op-ed.

The Latinos for America Blog explains why this bill will make the problem of gang violence worse, not better.

Now what was that you were telling me about Booker and how the Judge would now be able to sentence your client to a reasonable term rather than these outrageous guidelines?

Update: The House Judiciary Committee's Report (No. 109-74) on H.R. 1279. The House is scheduled to vote on this on Wednesday, May 11, 2005.

Update 2: The House passed H.R. 1279.

The ABA on H.R. 1528

Here is the Position Paper of the American Bar Association Regarding Section 12 of HR 1528, which minces no words in tearing down the misleading statements put out by Representative Sensenbrenner's office.  Not only does it challenge the misleading nature of the statements, but it also points out that the result will be much litigation, and a likely finding down the road that this Booker-fix violates Booker. Hat tip to Sentencing Law and Policy in this post which also contains more links to additional voices rising in opposition to this unwarranted and ill-conceived quick-fix.

Links to H.R. 1528 (the Booker-Fix) Materials

H.R. 1528, a drug sentencing bill entitled "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005" whose Section 12 has been called a Booker-fix, was considered in the House Judiciary Committee without anyone being called to testify as to the same. You can read more about H.R. 1528 at Sentencing Law and Policy's excellent coverage and commentary, at the following posts:

• Details concerning the brewing Booker fix
• Questions about the brewing Booker fix
• A day for sentencing hearings
• Bowman on the proposed Booker fix
• More opposition to quick Booker fix
• DOJ advocacy for mandatory minimum sentencing
• The rhetoric and reality surrounding the brewing Booker fix
• More potent criticisms of H.R. 1528
• Academic input on a not-so-academic Booker fix proposal
• Update on academic letter concerning H.R. 1528
• Final version of academic letter assailing brewing Booker fix
• When will we hear from the USSC (or DOJ) concerning the brewing Booker fix?
• What's going on at DOJ?
• USSC speaks out against H.R. 1528

The USSC letter on H.R. 1528 is a must read, and one can only applaud the USSC for speaking out clearly about this crazy piece of legislation.  I have no idea how far this bill will go, but NACDL, FAMM, and just about everyone with any interest in federal sentencing is keeping a close watch on it.

18 U.S.C. § 3553. Imposition of a Sentence

Post-Booker, with Section 3553(b) gone, we still have the remaining subsections of 3553 to deal with.

§ 3553. Imposition of a sentence

(a) Factors To Be Considered in Imposing a Sentence.- The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider-
    (1) the nature and circumstances of the offense and the history and characteristics of the defendant;
    (2) the need for the sentence imposed-
        (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
        (B) to afford adequate deterrence to criminal conduct;
        (C) to protect the public from further crimes of the defendant; and
        (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
    (3) the kinds of sentences available;
    (4) the kinds of sentence and the sentencing range established for-
        (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission pursuant to section 994 (a)(1) of title 28, United States Code, and that are in effect on the date the defendant is sentenced; or
        (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code;
    (5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2) that is in effect on the date the defendant is sentenced;
    (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
    (7) the need to provide restitution to any victims of the offense.

(b) Application of Guidelines in Imposing a Sentence.- The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.

(c) Statement of Reasons for Imposing a Sentence.- The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence-
    (1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or
    (2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described.

If the court does not order restitution, or orders only partial restitution, the court shall include in the statement the reason therefor. The court shall provide a transcription or other appropriate public record of the court's statement of reasons to the Probation System, and, if the sentence includes a term of imprisonment, to the Bureau of Prisons.

(d) Presentence Procedure for an Order of Notice.- Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the defendant and the Government that it is considering imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court shall-
    (1) permit the defendant and the Government to submit affidavits and written memoranda addressing matters relevant to the imposition of such an order;
    (2) afford counsel an opportunity in open court to address orally the appropriateness of the imposition of such an order; and
    (3) include in its statement of reasons pursuant to subsection (c) specific reasons underlying its determinations regarding the nature of such an order.

Upon motion of the defendant or the Government, or on its own motion, the court may in its discretion employ any additional procedures that it concludes will not unduly complicate or prolong the sentencing process.

(e) Limited Authority To Impose a Sentence Below a Statutory Minimum.- Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

(f) Limitation on Applicability of Statutory Minimums in Certain Cases.- Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that-
    (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
    (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
    (3) the offense did not result in death or serious bodily injury to any person;
    (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
    (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

So, since Judges still must consult and consider the guidelines in deciding the sentence to impose, as well as provide a statement of reasons, see 18 U.S.C. 3553(c) Statement of Reasons for Imposing a Sentence, it is imperative that one continue to figure out what the guidelines sentencing range would have been.

Moreover, in all cases where a mandatory minimum applies, for the Court to impose a sentence below said mandatory minimum, you will still need a motion from the Government based on substantial assistance pursuant to 3553(e) (USSG 5K1.1), or to comply with the five factors listed in 3553(f) (USSG 5C1.2).

Thus, some comments I have read elsewhere as indicating that the Government has somehow lost its leverage to negotiate with defendants are greatly overstated.

Judge Cassell Upholds Constitutionality of Federal Mandatory Minimum Sentences in US v. Angelos

I am posting this without even getting to read the entire decision by Judge Paul G. Cassell in United States v. Angelos, No. 02-CR-00708-PGC (D.Utah Nov. 16, 2004), addressing the constitutionality of mandatory minimum sentences under federal law.  I am also including the excellent amicus brief filed by Greenberg Traurig. Both items have also been added to the sidebar under "Opinions, Briefs & Oral Argument Transcripts."

Download AngelosBrief.doc