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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 2              Covering Cases Published in the Advance Sheets through Jan. 08, 2001

Highlights of this Issue:

Unpublished Decisions - Revisited:

Apprendi Watch:

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

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.

Anastasoff v. United States, No. 99-3917EM (8th Cir. 12/18/00) (En Banc) (Judge Arnold)

One of the most intriguing cases of the year 2000 was this decisions predecessor, Anastasoff v. U.S., 223 F.3d 898 (8th Cir. 2000) (Anastasoff I) (See P&J, 8/7/00). In that case, the plaintiff-taxpayer was appealing from a district ruling affirming the rejection by the IRS of a tax refund claim, on the grounds that the claim was received one day too late to be considered timely filed under IRS rules. Her principal argument was that, under substantially identical circumstances, the Second Circuit had ruled that such a claim should have been considered on its merits because it had been mailed within the requisite time period and thus it should have been deemed received when postmarked. Citing an earlier unpublished decision in which it had rejected "precisely the same legal argument," the panel held that it was bound to reject the plaintiffs claim, since only an en banc court could overturn a prior panels decision.

The plaintiff pressed on, contending that the Court was not bound by the holding in the prior decision because it was unpublished and thus not a binding precedent under Eighth Circuit Rule 28A(i). The panel wrote: "We disagree. We hold that the portion of Rule 28A(i) that declares that unpublished opinions are not precedent is unconstitutional under Article III, because it purports to confer on the federal courts a power that goes beyond judicial." (Anastasoff I, id., at 899).

The scope of the panels decision was quite limited. As the panel stated: "The question presented is not whether opinions ought to be published, but whether they ought to have precedential effect, whether published or not." (Anastasoff I, id., at 904). Nevertheless, the decision caused an immediate uproar and it evoked numerous debates about the propriety and fairness of the use of unpublished decisions - a practice that has grown considerably in recent years. [For a more detailed analysis of debate involving unpublished decisions, including its history and a summary of some of the issues involved, see the Quote of the Week in the 8/7/00 issue of P&J.]

The Eighth Circuit faced a dilemma; and it knew that the eyes of the legal world were focused on it. If it affirmed the panels decision, vast numbers of unpublished decisions would suddenly attain a new status in the law and would certainly cause a flood of appeals. If it rejected the logic of the panels decision, it would focus the publics attention on the fact that more than 75% of all appellate decisions are unpublished, a practice which, in the minds of some, leaves the courts free "to decide behind closed doors troublesome cases presenting issues the court does not want to address in public."

Almost as quickly as the Court could say "Puff The Magic Dragon," the IRS gave it the miracle it needed. Not only did the IRS say "Puff - the plaintiff wins," it "voluntarily" (and quickly) gave the plaintiff the full amount of her claim, $11,437.32. As the Court explained, that fortuitous event rendered the case moot. Not only was the panels decision in Anastasoff I vacated, the en banc court was saved from rendering an opinion on the constitutional question that had been raised. As the Court explained: "The constitutionality of that portion of Rule 28A(i) which says that unpublished opinions have no precedential effect remains an open question in this Circuit."

Some of us may be gullible enough to believe that the IRS simply decided to help the taxpayer, out of the goodness of its heart. Others, certainly more cynical, but probably more realistic, may view what transpired in this case as a scheme to make the case go away. Whatever the facts, the stench caused by unpublished opinions is growing and this case shows that there is very little left to the doctrine of separation of powers.

Further on the topic of unpublished decisions, We felt it worthwhile to note a highly unusual, albeit certainly concerted, approach towards Apprendi that has recently surfaced in both the Fourth and the Eighth Circuits. Over the course of the past four months, those two Circuits have issued a total of 74 unpublished and unsigned per curiam decisions dealing with Apprendi (65 in the Fourth Circuit and 9 in the Eighth Circuit). Under the local court rules of both Circuits, unpublished decisions do not carry any precedential weight and they normally cannot be cited (see, Local Rule 36(c) of the Fourth Circuit, and Rule 28A(i) of the Eighth Circuit). In effect, as quickly as they are decided, those unsigned decisions are buried in courts graveyard, where they cant be seen and used by others. While we have long criticized the growing practice of unpublished decisions, we have never seen such a concentrated effort by the courts to relegate the vast majority of decisions on a single, momentous issue to permanent obscurity.

Of course, if you know the name, date and docket number of a case, and you know what topics it dealt with, and if you have WestLaw or Lexis, you can usually get most unpublished decisions - but it isnt easy and it isnt cheap. For that reason, we have posted a list of all 72 cases on the Apprendi Watch section of our Web site, which will hopefully will make it easier for those who want to find the decisions.

We also believe that both the sheer magnitude of the actions of the Fourth and Eighth Circuits, and the obvious adoption of a burial plan by a large number of judges acting in concert, speaks volumes about the courts general antipathy towards Apprendi and the impact it has had on the judicial case-load. But, then again, as evidenced by the Eighth Circuits en banc decision in the Anastasoff case (see below), the courts seem determined to preserve their right to conduct their business and mete out justice in closed hearings out of the publics eye! In that context, the use of unpublished decisions is the perfect way to limit the scope of Apprendi.

United States v. Salazar-Flores, No. 99-50956 (5th Cir. 1/25/2001) (Judge Garza)

The defendant in this case was charged by indictment with one count of possession with intent to distribute marijuana, in violation of 21 U.S.C. 841. At the same time it filed the indictment, the Government filed a "Notice of Enhanced Penalty," in which it stated that it would seek an enhanced penalty because it believed that the evidence would show that the crime involved more than 50 kilograms of marijuana (and therefore would be subject to the catch-all provisions of 21 U.S.C. 841(b)(1)(C) and its 20 year statutory maximum sentence).

The defendant subsequently pled guilty to the charge, and at his plea allocution he acknowledged not only that he understood he could receive up to 20 years imprisonment for his crime, but also that the Governments basis for his sentence enhancement - namely, that he had 195 pounds of marijuana in his car - was factually correct. After he was sentenced to 30 months imprisonment, he filed a direct appeal of both his conviction and sentence. Although his appeal was filed before Apprendi, he initially argued, based on Jones v. U.S., 526 U.S. 227 (1999), that his indictment was defective because it did not allege a drug quantity. After Apprendi was decided, he filed a supplemental brief presumably arguing that he should not have been sentenced to 30 months, since the default statutory maximum for offenses involving marijuana is just one year, under the provisions of 21 U.S.C. 841(b)(4).

The Court rejected the defendants appeal, stating that "Apprendi requires reversal of a conviction only in those cases where a sentence exceeds the statutory maximum." While the issue of whether 841(b)(4) is the appropriate default statutory maximum in marijuana cases where the quantity is contested was never fully analyzed by the Court in this case, it certainly implied that 841(b)(4) is the proper default for marijuana. In a footnote it explained: "Salazar-Flores admitted under oath at his sentencing hearing that, among others, the following facts were correct: Approximately 195 pounds of marijuana were discovered in his vehicle, and he knew that his vehicle contained marijuana. Therefore, the quantity of marijuana was uncontested. . . .

"Thus, 841(b)(4) does not apply because 195 pounds, under any standard, does not qualify as a small amount. Section 841(b)(1)(D) duly applies, with its five-year maximum imprisonment and $250,000 maximum fine."

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