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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 4              Covering Cases Published in the Advance Sheets through Jan. 22, 2001

Highlights of this Issue:

Apprendi Watch:

Habeas Curpus and Retroactivity:

Claims of Counsel-Coerced Plea Agreements:

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  more than 125 Apprendi decisions and more than 100 Apprendi briefs and motions, and a listing of the 36 cases that the Supreme Court has vacated to date based on Apprendi.

U.S. v. [Glen] Norris, 2001 WL 95725 (E.D.N.Y. 2/01/01) (Judge Nickerson)

One of the issues that has frequently arisen under Apprendi v. New Jersey, 530 U.S. 466 (2000) is what did the Supreme Court mean by the term "prescribed statutory maximum" when it held that "[o]ther than the fact of a prior conviction, 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"?

So far, virtually all the judges and commentators have concluded that the Courts reference was strictly to the statutory maximums that are set forth in the thousands of separate Federal criminal statutes - without regard to the actual sentences that are mandated by the Guidelines. In short they have concluded that Apprendi does not apply where non-jury factual findings increase the range of punishment so long as the sentence imposed does not exceed the maximum sentence that Congress fixed by statute for the crime - despite the fact that most of those statutory maximums were set by Congress long before the Guidelines became law.

And there can be significant differences between the statutory maximum and the Guideline maximum. Drug crimes are a good example of some of the stark differences between those two "maximums." The vast majority of drug crimes are covered by 21 U.S.C. 841. Under the penalty provisions of 841(b), there are four broad maximum sentencing steps of 10 years, 20 years, 40 years, and life imprisonment depending on the types and quantities of drugs involved. Under 2D1.1(c) of the Guidelines, however, there are 17 more discrete maximum sentencing limits that result from applicable offense levels, which also are based on the types and quantities of drugs involved.

In his concurring opinion in Apprendi, Justice Thomas, who argued for a broader rule than that ultimately adopted by the majority, stated that "[i]f a fact is by law the basis for imposing or increasing punishment - for establishing or increasing the prosecutions entitlement - it is an element" of the crime which must be submitted to the jury. Recently, the Fourth Circuit stated that there was a "colorable argument" that the Guidelines provide the equivalent of statutory maximums. (See, U.S. v. Kinter, 235 F.3d 192, 200 (4th Cir. 2000) (P&J, 12/11/00)).

Until this case, however, no judge has actually ruled that Apprendi should apply to facts that might increase a defendants sentence beyond the Guidelines mandated sentencing range. Here, however, Judge Nickerson did make a forceful statement for the proposition that facts which increase a defendants sentence beyond the sentencing range prescribed by the Guidelines must also be submitted to the jury and established by proof beyond a reasonable doubt - because the Guidelines themselves are laws that have fixed "the maximum sentence a judge could impose . . . based on the conduct charged in the indictment and the number of previous convictions the defendant had on his record."

In the instant case, the defendant pled guilty to a single count that charged him with a conspiracy to distribute at least 5 but less than 15 kilograms of cocaine on two separate occasions. The Court noted that the defendants base offense level for the crime to which he pled guilty was 32, which called for a sentence of 135 to 168 months imprisonment based on his criminal history category.

However, the Probation Department called for two separate sentence enhancements that would have raised the base offense level to 36 and the required sentence to 210-262 months imprisonment - an eight year difference in sentences. The first enhancement was based on hearsay evidence that the defendant had participated in an uncharged, third drug transaction that involved some 14.7 more kilos of cocaine than were involved on the two occasions specified in the indictment. The second enhancement was based on the Probation Departments allegation that it was "likely" that a loaded weapon was connected with the offense, and that the sentence should therefore be increased by two levels under U.S.S.G. 2D1.1(b)(1). Defense counsel objected to both enhancements, disputing as erroneous the inclusion of the 14.7 kilograms of cocaine that were never charged, and contending that it was "clearly improbable" that a weapon was connected to the offense.

To help resolve those disputed facts, Judge Nickerson asked the parties to address two questions: "(1) whether the United States Constitution prohibits a court from increasing Norris's sentence beyond the maximum fixed by the sentencing guidelines for the elements of the crime alleged in the indictment to which he pleaded guilty; and (2) whether under the Constitution the court may deprive Norris of a jury trial and by itself determine the facts by a preponderance of the hearsay evidence to justify the two enhancements."

In his Order, Judge Nickerson noted that "the cocaine transactions asserted in hearsay were twice as serious as the crime charged in the indictment. To hold that these crimes may be punished on a finding by a judge based solely on a preponderance of the hearsay evidence is inconsistent with the reasoning of Apprendi."

He expressed the view that the decisions which hold that Apprendi does not apply to facts that increase the Guideline sentencing range (so long as the courts stay within the "statutory" maximum) "take an improperly narrow view of the functions that Congress has entrusted to the Sentencing Commission." Since the Guidelines have "the force and effect of laws" and are "legally binding enactments in a manner that is nearly indistinguishable from congressionally enacted criminal statutes," it is simply illogical to conclude that Apprendi does not apply to facts that take one out of a specific Guideline sentencing range in the same manner as Apprendi surely applies to facts that increase a sentence beyond the statutory maximum.

Finally, Judge Nickerson asked and answered the following question: "Does an individual accused of a crime have a right to a jury trial and a right to require the government to prove beyond a reasonable doubt every fact necessary to constitute the crime fixed by binding law? Since the maximum fixed by the Guidelines is binding as a matter of law, the answer can hardly be in doubt."

It will be interesting to see what happens to this decision on appeal - particularly since it would appear to be at odds with the Second Circuits first detailed ruling on Apprendi, namely U.S. v. White, No. 00-1113 (2nd Cir. 2/13/01), where the court held, inter alia, that "[w]here factual determinations were used to sentence the defendant to a sentence within the maximum allowed by statute, Apprendi is not controlling, and such determinations can be made by the court without violating the defendant's right to due process."

United States v. Sturgis, No. 00-2584 (8th Cir. 2/06/2001) (Judge Bye)

One of the issues involved in this case was an Apprendi sentencing claim; and, although the Court was willing to concede that there was one Apprendi error (in fact there were two), it stretched the limits of both logic and law to deny any relief - even though the effective relief being sought was a minuscule portion of the total sentence.

The defendant in this case was convicted of possessing both crack cocaine and marijuana with intent to distribute; and he was sentenced to 60 months for the marijuana distribution charge and 262 months for the crack distribution charge - with both sentences to run concurrently. On this direct appeal, he argued, inter alia, that his sentence exceeded the limits established by Apprendi, since the 262 months on the crack distribution charge was in excess of the default statutory maximum of 240 months set forth in 21 U.S.C. 841(b)(1)(C).

Even though the Court conceded that the defendants sentence of 262 months on the crack distribution count was erroneous, since it exceeded (by 22 months) the 240-month statutory maximum for an indeterminate quantity of crack, the Court came up with a creative way to deny relief. First, citing the provisions of U.S.S.G. 5G1.2(d), it held that the Guidelines "require a district court to run sentences from multiple counts consecutively, rather than concurrently, if the Guideline sentence exceeds the statutory maximum for each count." Thus it concluded that the district court "could have" capped the defendants 262-month sentence on the crack count at the statutory maximum, and then run 22 months on the marijuana count consecutively. Based on that reasoning, the Court stated: "Because Sturgiss sentence could be reformed to avoid an Apprendi error, we perceive no plain error in his sentence."

Totally apart from the speculation required to support such "what-could-have-been" arguments, there may have been another flaw in the Courts reasoning. It categorically assumed that "[t]he statutory maximum sentence for possessing less than 50 grams (e.g., an indeterminate quantity) of marijuana is 60 months." However, as was noted in U.S. v. Lowe, 2000 WL 178673 (S.D.W.Va. 2000) (See P&J, 1/08/01), there are substantial grounds for arguing that when a defendant is charged with the distribution of an indeterminate amount of marijuana, he is subject to a statutory maximum penalty of one year - not five years - under the provisions of 21 U.S.C. 841(b)(4). That issue was never addressed by this Court - perhaps because if it had been raised it might have resulted in a reduction of the defendants sentence from 262 months to 250 months (a 4.5% reduction), which it obviously felt was uncalled for in this case.

United States v. Sadolsky, 234 F.3d 938 (6th Cir. 2000) (Judge Suhrheinrich)

In this case the Government appealed from a ruling by the district court (Judge Heyburn) which granted the defendant a two-level downward departure for diminished capacity pursuant to U.S.S.G. 5K2.13, based on the defendants alleged gambling disorder, which allowed the court to impose a sentence of five years probation and no prison time. The Sixth Circuit affirmed, holding that the downward departure was proper and that the district court had committed no error in determining that the defendants gambling problem qualified as a significantly reduced mental capacity (SRMC).

The defendant, a former employee of Sears Roebuck, pled guilty to computer fraud in violation of 18 U.S.C. 1030(a)(4) after he accessed Sears computers and fraudulently credited his personal credit with some $40,000 of credits based on fictitious "returns of merchandise." At sentencing, he argued that he was entitled to receive a downward departure under 5K2.13 because he committed the crime while suffering from a SRMC as set forth in that provision. Specifically, he argued that he was a compulsive gambler and that he was under pressure to pay off some $30,000 in gambling debts. The district court agreed, and granted the departure, finding that the defendants "capacity was sufficiently impaired to be able to control this particular kind of behavior." (Id., at 941).

In affirming that decision, the Sixth Circuit that, in 1998, the Sentencing Commission had added an application note to 5K2.13 which defined the previously undefined term "significantly reduced mental capacity" with this language: "Significantly reduced mental capacity means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful." (Id., at 942, quoting from Guideline Amendment No. 583).

In interpreting that language, the Court (a) rejected, as unsupported by precedent, the Governments contention that the defendants gambling problem only if he had been arrested for gambling rather than for fraud, and (b) ruled that 5K2.13 does not require "a direct causal link between the SRMC and the crime charged." (Id., at 943). The Court observed that "[a] rule distinguishing between SRMCs that cause the behavior that constitutes the crime and SRMCs that motivate the behavior that constitutes the crime could lead to arbitrary results."

The Court also stated: "The 1998 Amendment is arguably inconsistent with the Guidelines as a whole, which generally prevent consideration of mental and emotional conditions, see U.S.S.G. 5H1.3, p.s. (stating that mental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the applicable range); as well as drug or alcohol dependence abuse, see 5KH1.4.p.s. (stating that [d]rug or alcohol dependence or abuse is not a reason for imposing a sentence below the guidelines), as bases for departure." However, it differentiated those provisions by stating that "in 5K2.13, the Sentencing Commission specifically excluded as bases for departure two volitional disorders, the voluntary use of drugs or other intoxicants," 5K2.13, and clearly indicated in the accompanying application note that volitional impairments provide a proper basis for departure. Therefore it must be presumed that the Sentencing Commission did not intend to categorically exclude gambling or other volitional disorders as qualifying for downward departures." (Id., at 944).

As a matter of interest, the Court also noted the following: "For an excellent discussion of why allowing departures based on volitional impairment frustrates Congress's objective for the Guidelines, see Carlos M. Pelayo, "Give Me a Break! I Couldn't Help Myself !"?: Rejecting Volitional Impairment as a Basis for Departure under Federal Sentencing Guidelines Section 5K2.13, 147 U. Pa. L. Rev. 729 (Jan. 1999) (arguing that, when properly analyzed, most cases involving volitional impairment actually involve a perfectly functioning will and voluntary action, and that as long as the defendant is not irrational, unmitigated punishment is morally appropriate)." (Id., at 944, note 5).

News from the Internet

For those interested, the FBI is now maintaining a comprehensive listing of the State Sex Offender Registry Websites at We fear that it wont be long before the Web contains "Scarlet-Letter" lists of all persons who ever had arrest records or who were ever accused of being flag burners, Commies or gays!

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