The Guidelines are Dead; Long Live the Guidelines

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The Guidelines are Dead Long Live the Guidelines

• Keith Williams
• Greenville, NC

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Three Points

• The Foundation of Booker Apprendi and Blakely
• Booker Rocks the Guidelines
• How it Works in the Trenches

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The Foundation of Booker

• Apprendi v. NJ, 530 U.S. 466 (2000)
• Under New Jersey law judge could impose
  sentence above the statutory maximum by finding
  aggravating factors at sentencing
• Factors found by judge based on preponderance of
  evidence

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• US Supreme Court said you cant do that
• 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

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• Did Apprendi change anything under the federal
  Sentencing Guidelines? No.
• Even before Apprendi, the Guideline sentencing
  range could not go above the statutory maximum

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• For example in a drug case with a 20-year
  (240-month) statutory max
• Guidelines might calculate a sentencing range of
  235 to 293 months based on drug weight, role in
  the offense, etc.
• But statute capped the top end of the range at
  240 months
• So the actual sentencing range would be 235 to
  240 months

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• So Apprendi by itself had no effect on the
  Guidelines
• But then the Supreme Court decided Blakely, and
  things started to get interesting

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• Blakely v. Washington, 542 U.S. 296 (2004)
• Mr. Blakely pled guilty to second degree
  kidnapping in Washington state court
• Punishable by up to 10 years (120 months) under
  the state statute

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• No jury found any aggravating factors
• Mr. Blakely did not admit any aggravating factors
  as part of his plea
• Presumptive sentencing range
• 49 to 53 months

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• At sentencing, the judge found an aggravating
  factor that Mr. Blakely acted with deliberate
  cruelty
• Therefore the judge imposed an aggravated
  sentence of 90 months

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• Was above presumptive sentencing range of 49 to
  53 months
• But below 120-month top end punishment allowed by
  statute
• That was OK under Apprendi, right?
• No! Redefine statutory maximum

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• 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 beyond the
  jurys verdict or beyond what the Defendant
  admits in his plea

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• What was the maximum sentence the judge could
  impose without any additional findings?
• 53 months - the top end of the presumptive
  sentencing range
• So 53 months was the statutory maximum

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• Nothing higher than 53 months allowed, unless
• a jury found the aggravating factors or
• Mr. Blakely admitted them as part of his plea
• Imposing a sentence above 53 months based on
  judge-found facts at sentencing violated the
  Sixth Amendment right to trial by jury

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• The burning question then became does this same
  analysis apply to the federal Sentencing
  Guidelines?
• After all - the Guidelines rely on a multitude of
  judge-found facts at sentencing (determination of
  drug weight, role in the offense, etc.)

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• The Courts response in Blakely footnote 9
  The Federal Guidelines are not before us, and we
  express no opinion on them
• Thereupon commenced a wild period of seven months
  of speculation and rumor until the Court resolved
  the issue with its decision in Booker

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Booker Rocks the Guidelines

• United States v. Booker, 543 U.S. ---, 125 S.Ct.
  738 (January 12, 2005)
• The facts
• Mr. Booker went to trial and was convicted of
  possessing more than 50 grams of crack
• Evidence at trial was 92.5 grams

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• If the Guideline sentencing range was determined
  based solely on the facts found by the jury
• 92.5 grams of crack Offense Level
• (OL) 32
• Booker was in criminal history category (CHC) VI
• OL 32, CHC VI 210 to 262 months

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• But as we all know the Guidelines do not base
  sentencing solely on the facts found by the jury
• Instead the Guidelines require the judge to
  look broadly at relevant conduct, role in the
  offense, and many other factors never presented
  to the jury

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• The judge at sentencing made two findings beyond
  the jurys verdict
• Extra drug weight of 566 grams of crack
• Obstruction of Justice Enhancement
• Offense level went from 32 to 38
• New sentencing range OL 38, CHC VI 360 months
  to life

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• Judge imposed sentence of 360 months
• The highest sentence the judge could have imposed
  without the additional findings on drug weight
  and obstruction was 262 months

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• The defense argument in Booker this is just
  like Blakely
• The statutory maximum is the maximum sentence
  that the judge can impose without making any
  additional findings beyond the jurys verdict
• So the sentence should have been capped at 262
  months

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• The Supreme Court agreed
• There is no relevant distinction between the
  sentence imposed pursuant to the Washington
  statutes in Blakely and the sentences imposed
  pursuant to the Federal Sentencing Guidelines in
  this case.

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• The Guidelines are Dead!
• Defendants sentence must be based on facts found
  by jury at trial or facts admitted by Defendant
  in his guilty plea
• Guidelines violate the Sixth Amendment right to
  jury trial because they require the judge to make
  additional findings of fact at sentencing that
  increase the sentence
• So mandatory Guideline sentencing is out

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• But Long Live the Guidelines
• They no longer bind the judge, but they still
  have a role to play at sentencing
• The Guidelines rise from the grave and walk again
  in the remedy section of the Booker opinion . . .

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• If mandatory Guideline sentencing is the problem,
  what is the solution?
• Throw out the Guidelines? No
• Have the jury determine all Guideline factors
  (drug weight, role in the offense, etc)? No
• Get rid of the mandatory nature of the
  Guidelines? Yes

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• We answer the question of remedy by finding
  that the provision of the federal sentencing
  statute that makes the Guidelines mandatory is
  incompatible with today's constitutional holding.
  We conclude that this provision must be severed
  and excised . . . So modified, the Federal
  Sentencing Act makes the Guidelines effectively
  advisory. It requires a sentencing court to
  consider Guideline ranges, but it permits the
  court to tailor the sentence in light of other
  statutory concerns as well.

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• Which means that post-Booker federal sentencing
  looks like this
• First the judge determines the advisory
  (non-binding) Guideline sentencing range
• Second per the Fourth Circuit in United States
  v. Hughes the court shall consider that range
  as well as other relevant factors set forth in
  the guidelines and those factors set forth in 18
  U.S.C. 3553(a) before imposing the sentence

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• If the court imposes a sentence outside the
  guideline range, it should explain its reasons
  for doing so.
• Judge still required to stay within any sentence
  ranges required by statute (for example, minimum
  of 10 years, maximum of life)
• 3553(a) factors nature of the offense, history
  of the defendant, need for deterrence, Guideline
  range, need for restitution, etc.

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How It Works in the Trenches

• United States v. Robert Bob Serrano (used with
  clients consent)
• Government alleged interstate burglary ring
• Case the joint during the day
• Break in that night (going through the wall next
  door to avoid tripping alarm)
• Sell the stolen jewelry to Bob

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• Bob contended he bought the jewelry but did not
  know it was stolen
• Jury convicted
• Judge sentenced first sentencing pre-Booker
  64 months
• Government appealed said the loss amount was
  too low

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• Fourth Circuit agreed with Government
• Ordered resentencing
• Use higher loss amount
• Guideline range should be 97-121 months

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• Fourth Circuits opinion issued June 14, 2004
• Booker decided January 12, 2005
• Resentencing held March 8, 2005
• Guidelines were mandatory at the first sentencing
  but advisory only at the second one

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• Advisory Guideline range
• 97 to 121 months
• Binding statutory range
• 0 to 20 years

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• Factors argued to the court as grounds for
  sentence below Guideline range
• Defendants age 60 years old
• Defendants health problems diabetes, mental
  health issues, etc

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• Codefendants received substantially lower
  sentences (through cooperating) of 18 and 24
  months
• Amount of loss as determined by Fourth Circuit
  overstated the actual loss

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• Court found
• Booker applied at resentencing
• Advisory Guideline range was 97 to 121 months
• Defendants age and health condition warranted
  lesser sentence
• And amount of loss likely overstated the
  seriousness of the offense

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• Court imposed sentence of 54 months
• Booker made all the difference
• Freed the court from the Guidelines
• Caused the prosecutor to regret appealing the
  case ultimately helped Bob by keeping his case
  alive until after Booker decided

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Conclusion

• An exciting time to practice criminal law
• Take advantage of the opportunities we have been
  given
• Mitigate the daylights out of your sentencing