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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 1              Covering Cases Published in the Advance Sheets through Jan. 01, 2001

Highlights of this Issue:

U.S.S.G. and Sentencing Issues:

Apprendi Watch:

Dont forget to visit the Apprendi  Watch section of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision.  Our Apprendi Watch section now includes links to and summaries of  100 + Apprendi decisions, links to more than 100 Apprendi briefs and motions, and a listing of the 36 cases that the Supreme Court has already vacated based on Apprendi.

New Amendments to the Federal Sentencing Guidelines

Overlooked by most commentators are three new significant amendments to the Guidelines which became effective as of November 1, 2000.  All three amendments represent a conscious tightening of restrictions on a rather pronounced new wave of judicial discretion that began to creep into the Guidelines jurisprudence after Koon v. U.S., 518 U.S. 81 (1996) in the area of other grounds for departure under Part K of Chapter Five of the Guidelines; and in each case the Sentencing Commission issued the new provisions to resolve conflicts among the Circuits - a role that we had always assumed was reserved to the Supreme Court! The three amendments are:

Section 5K2.19 - Post-Sentencing Rehabilitative Efforts (Policy Statement)

The Sentencing Commission has adopted this new Guideline section which now makes all post-sentencing rehabilitative efforts even if exceptional a prohibited factor under the Guidelines.  Acting in response to a Circuit split that had developed, the Commission concluded that the use of post-sentencing rehabilitative efforts should not provide a basis for a downward departure when resentencing a defendant initially sentenced to a term of imprisonment because such a departure would (1) be inconsistent with the policies established by the Congress under the Sentencing Reform Act, including the provisions of 18 U.S.C. 3624(b) for reducing time to be served by an imprisoned person; and (2) inequitably benefit only those few who gain the opportunity to be resentenced de novo, while others, whose rehabilitative efforts may have been more substantial could not benefit simply because they chose not to appeal or appealed unsuccessfully.  (U.S.S.G., Appendix C, Guideline Amendment No. 602).

In announcing the new Section, the Commission acknowledged that it was effectively overturning decisions from the First, Second, Third, Sixth, Ninth and D.C. Circuits which had previously ruled that post-sentencing rehabilitative efforts were not a prohibited ground for departure.  The Commission also expressly noted that the amendment does not restrict departures based on extraordinary post-offense rehabilitative efforts prior to sentencing.  (Emphasis added).

Section 5K2.20 - Aberrant Behavior (Policy Statement)

This new provision of the Guidelines was designed to address when, and under what circumstances, a court is authorized to grant a departure based upon the defendants single acts of aberrant behavior - a concept first noted in Chapter One, Part A, Subpart 4(d) of the Guidelines Manual.

Over the years, a split had developed among the courts about whether a single act of aberrant behavior includes multiple acts occurring over a period of time.  A majority of the Circuits (the Third, Fourth, Fifth, Seventh, Eighth, Eleventh and D.C. Circuits) had generally concluded that a departure based on aberrant conduct requires a spontaneous, thoughtless, single act involving a lack of planning.  Conversely, a number of the Circuits (the First, Second, Ninth and Tenth) adopted a totality of circumstances test, under which a short-lived departure from an otherwise law-abiding life would qualify for an aberrant conduct departure.  In large part, the positions taken by the Circuits on this issue were adopted before the Supreme Courts decision in Koon; and what probably troubled the Commission (and certainly troubled the Department of Justice) was that some of the recent cases on this issue (particularly Zecevic v. United States Parole Commission, 163 F.3d 731 (2nd Cir. 1998) (See P&J, 1/18/99)) were written after Koon and they made some exceptionally strong arguments that Koon required a rejection of the single, spontaneous, thoughtless act approach.

In resolving the dispute by enacting 5K2.20, the Sentencing Commission pointedly commented that it was not adopting in toto either the majority or minority view on this issue.  (U.S.S.G., Appendix C, Guideline Amendment No. 603).  In fact, the Commission stated that it had attempted to slightly relax the single act rule in some respects, although it also admitted that the new amendment was not anticipated to broadly expand departures for aberrant behavior.

Whatever its stated goals, the new amendment will certainly make departures based on aberrant conduct significantly more difficult to obtain.  First of all, the new Policy Statement places significant restrictions on the type of offense and the history of the offender that can be considered for this departure.  A court may not depart on the basis of aberrant conduct if (1) the offense involved serious bodily injury or death; (2) the defendant discharged a firearm or otherwise used a firearm or a dangerous weapon; (3) the instant offense of conviction is a serious drug trafficking offense; (4) the defendant has more than one criminal history point; or (5) the defendant has a prior Federal or State felony conviction, regardless of whether that conviction is countable under the Guidelines.

Second, the Commission categorically stated that it chose not to adopt the totality of circumstances approach because that approach was overly broad and vague.  Finally, the Commission defined aberrant conduct to mean a single criminal occurrence or single criminal transaction that (A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise law-abiding life.

Section 5K2.21 - Dismissed and Uncharged Conduct (Policy Statement)

The third of the new amendments relating to departures was also designed to eliminate a growing Circuit split on the issue of whether a court can base an upward departure on conduct that was dismissed or not charged as part of a plea agreement in the case.  (U.S.S.G., Appendix C, Guideline Amendment No. 604). 

In addition to several related amendments, the new 5K2.21, which is labeled Dismissed and Uncharged Conduct, provides that a court may increase the guideline range to reflect the actual seriousness of the offense based on conduct (1) underlying a charge dismissed as part of a plea agreement in the case or underlying a potential charge not pursued in the case as part of a plea agreement or for any other reason; and (2) that did not enter into the determination of the applicable guideline range.

Prior to this amendment, a majority of the Circuits had held that the sentencing court could consider counts that had been dismissed as part of a plea agreement in fashioning an upward departure, in large part because U.S.S.G. 1B1.4 provides that [i]n determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.

Notwithstanding that provision, several of the Circuits, including the Seventh and Ninth, have held that a departure based on conduct uncharged or dismissed in the context of a plea agreement is inappropriate, at best, and patently unfair, at worst.  (See, U.S. v. Lawton, 193 F.3d 1087, 1092 (9th Cir. 1999)).  In rejecting such patently unfair arguments, the Commission concluded that the new 5K2.21 preserves flexibility for the sentencing judge to impose an appropriate sentence within the context of a charge-reduction plea agreement.

We will wait patiently for the first really good Apprendi-type challenge to this provision.  Certainly, on its face, 5K2.21 would appear to go against the grain of Justice Thomas observation in Apprendi that a crime includes every fact that is by law a basis for imposing or increasing a sentence and, as such, that any such fact must be charged in the indictment and proven to the jury by proof beyond a reasonable doubt.

United States v. Jackson, 2001 WL 21355 (7th Cir. 1/10/01) (Per Curiam)

On October 30, 2000, the Supreme Court vacated the 30-year sentence that had been imposed on defendant Harold Jackson by the district court and affirmed by the Seventh Circuit in U.S. v. Jackson, 207 F.3d 910 (7th Cir. 2000) (Jackson I).  As it has done so far in 35 other cases, the Supreme Court remanded this case back to the Seventh Circuit court for reconsideration in light of Apprendi [v. New Jersey, 530 U.S. 466 (2000)].

In a fairly direct challenge both to the Supreme Courts order vacating the sentence and to the scope of the Apprendi ruling, the Seventh Circuit effectively said Thanks, but no thanks.  In this unsigned, per curiam opinion, the three judge panel (consisting of Judges Posner, Wood, and Evans) again affirmed and reinstated the same thirty year sentence.  (Judge Wood seems to have become the Seventh Circuits  leading Apprendi expert, having authored five Apprendi decisions to date.)

Essentially, the panel agreed that because no drug amounts had been charged in the indictment or submitted to the jury, the maximum [sentence] would have been 20 years had no determination of quantity been made, . . . and since the jury had not been asked to determine quantity, the higher sentence violated the rule declared in Apprendi.

Nevertheless, the panel also concluded that because the defendant had not previously raised his Apprendi issue in the district court, he can obtain the benefit of that decision only if the sentencing of him in disregard of it was a plain error.  It then continued that to prevail under the plain-error standard, Jackson must also show that the error was prejudicial, that is, that there is some likelihood that the judgment would have been different had the error not been made.  This case involved crack cocaine, where much smaller amounts lead to much greater penalties than is true for other drugs.  The Court noted that if the defendants crime involved a mere five or more grams of crack cocaine, he would have been eligible for a 40-year sentence under 21 U.S.C. 841(b)(1)(B), rather than the 20-year sentence otherwise applicable under 841(b)(1)(C).  Thus, the panel concluded that if the evidence that Jacksons offense involved at least five grams of crack is overwhelming, then he is not entitled to be resentenced on the basis of Apprendi.

Following that rationale, the panel held that the 30-year sentence was not plain error, because [n]o reasonable jury could have failed to convict Jackson of being involved in the sale of hundreds, if not thousands, of grams of crack. The failure to ask the jury to determine whether the amount was at least 5 grams was harmless far beyond a reasonable doubt. It will be interesting to see what happens next in this case. 

News from the Internet

We again remind our subscribers of the new free service offered by Lexis on the Internet. That site, known as LexisOne, is available at, has four main components: (1) The complete collection of Supreme Court cases from 1790 to date; all Federal circuit court cases from January 1, 1996 to date (searchable by citation); and all cases from the two highest courts in each state from January 1, 1996 to date; (2) A Statutory Law Guide to the Federal laws and the laws of all 50 states; (3) More than 6,000 free Legal Forms; and (4) A Legal Internet Guide consisting of more than 20,000 legal related links broken down into 31 separate categories.  In addition, you can also Shepardize cases for a fee of $4.00 per citation, using a credit card.  You must register to use this site, but registration is free.

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