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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 5              Covering Cases Published in the Advance Sheets through Jan. 29, 2001

Highlights of this Issue:

Apprendi Watch:

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

Dont forget to visit the Apprendi  Watch section of the Member's 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 130 Apprendi decisions and more than 100 Apprendi briefs and motions, and a listing of the 45 cases that the Supreme Court has vacated to date based on Apprendi.

United States v. Ramirez, No. 98-6130 (6th Cir. 2/16/2001) (Judge Merritt)

From the beginning, Judge Merritt has been a strong proponent of a broad and far-reaching interpretation of the Supreme Courts decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). He dissented in U.S. v. Gatewood, 230 F.3d 186 (6th Cir. 2000), when the majority refused to hold that Apprendi required the jury to determine those facts necessary to subject the defendant to the "three strikes law."

He dissented in U.S. v. Harris, No. 99-5846 (6th Cir. 1/30/01) (See P&J, 1/15/01) when the majority affirmed a sentence of 480 months for a defendant who had been charged with second degree murder but was sentenced for first degree murder based on relevant conduct evidence found by the judge using a preponderance of the evidence standard. In complaining that the panels decision in Harris violated both the logic and spirit of Apprendi, Judge Merritt criticized "the current judicial and prosecutorial practice of not giving notice by indictment of the real crime at issue and of leaving most of the more salient factual disputes for the sentencing hearing, where the burden of proof is the less rigorous preponderance of the evidence standard and the hearsay rules do not apply."

Writing for the panel in the instant decision, he emphatically held that Apprendi applies to those facts that govern whether a mandatory minimum sentence should be imposed - a position that was first suggested in U.S. v. Flowal, 234 F.3d 932 (6th Cir. 2000). Here, clarifying and reaffirming the ruling in Flowal, Judge Merritt wrote that "the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed, such as moving up the scale of mandatory minimum sentences, invokes the full range of constitutional protections required for elements of the crime."

In the instant case, the defendant was charged with two counts: a conspiracy to distribute cocaine and possession of cocaine with intent to distribute. "Neither count specified the amount of cocaine involved or any other facts regarding the drug crime." After a jury trial, the district court sentenced the defendant to a mandatory minimum sentence of 20 years under the provisions of 21 U.S.C. 841(b)(1)(A) because it found (a) the quantity of cocaine involved was more than five kilograms, and (b) the defendant had a prior drug conviction.

The defendant appealed, and the Court framed the issue before it by stating that "[t]he question before us in this direct criminal appeal is how Apprendi applies to the various increases in penalties, particularly mandatory minimum penalties, imposed by the multi-layered sections and subsections of the federal drug statute set out in 21 U.S.C. 841."

In reversing the 20-year sentence, Judge Merritt wrote: "Aggravating factors, other than a prior conviction, that increase the penalty from a nonmandatory minimum sentence to a mandatory minimum sentence, or from a lesser to a greater minimum sentence, are now elements of the crime to be charged and proved. From a practical perspective, this means that when a defendant is found guilty of violating 21 U.S.C. 841(a)(1), he must be sentenced under 21 U.S.C. 841(b)(1)(C) unless the jury has found beyond a reasonable doubt that the defendant possessed the minimum amounts required by 841(b)(1)(A) and 841(b)(1)(B). Because in this case the government did not charge or attempt to prove to the jury a quantity of drugs that would permit a mandatory sentence, we remand this case to the District Court with instructions to sentence the defendant under 21 U.S.C. 841(b)(1)(C) and in accordance with the U.S. Sentencing Guidelines."

It should be noted that the position taken by the Sixth Circuit in this case is at odds with the position taken by at least two other Circuits to date. (See, U.S. v. Keith, 230 F.3d 784, 787 (5th Cir. 2000) ("we hold that a fact used in sentencing that does not increase a penalty beyond the statutory maximum need not be alleged in the indictment and proved to a jury beyond a reasonable doubt"); and U.S. v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir. 2000) (Those [statutory] minimums, because they are within the statutory range authorized by 841(b)(1)(C) without reference to drug quantity, are permissible under Apprendi and McMillan even where the drug quantity was not charged in the indictment or found by the jury. . . .").

One other noteworthy aspect of this decision was Judge Merritts restatement of the holding in Apprendi. With his characteristic clarity, he wrote: "The basic holding of Apprendi is twofold: first, that courts must count any fact that increases the penalty beyond the prescribed statutory maximum as an element of the offense except for one important exception, i.e., the fact of a prior conviction; and second, that it is unconstitutional for a legislature to treat facts that increase the prescribed range of penalties to which a criminal defendant is exposed as mere sentencing factors, rather than facts to be established as elements of the offense."

United States v. Brown, 235 F.3d 2 (1st Cir. 2000) (Judge Selya)

This case provides one of the most detailed analyses we have seen recently of the general considerations that apply to the imposition of special conditions of supervised release, under U.S.S.G. 5D1.3. The defendant in this case pled guilty to two counts of distributing cocaine and cocaine base, and he was sentenced to 24 months imprisonment, followed by a five year term of supervised release. The district court (Judge Barbadoro) imposed several conditions of supervised release. One required the defendant to enter a drug-and-alcohol-addiction treatment program; and another required the defendant to abstain "from the use of alcoholic beverages and/or all other intoxicants during and after the course of treatment." (Id., at 3).

Although he did not object at sentencing, on appeal the defendant argued that the "stay dry" condition constituted a departure from the Guidelines and must be vacated because the sentencing court did not give adequate notice of its intention to so depart. [Under Burns v. U.S., 501 U.S. 129, 138-39 (1991), a district court may not depart upward from the applicable Guideline sentencing range sua sponte without first notifying the defendant of its intention to do so and without "specifically identify[ing] the ground on which the district court is contemplating an upward departure."] Alternatively, the defendant argued that the condition bore no reasonable relation to the crime he had committed and thus imposed a greater deprivation of liberty on him than was necessary or permissible.

After reviewing in detail the four general classes of conditions set forth in the Guidelines (mandatory, standard, special and discretionary), the Court concluded that (a) special conditions of supervised release that fall within the general range of options available under the Guidelines are not subject to the notice requirements that are normally applicable to sentencing departures; and (b) a special condition requiring total alcohol abstinence for an entire five year term of supervised release was neither "raw punishment" nor an "overly draconian response" to the perceived need for safeguarding society.

In his inimitable style, Judge Selya summarized what is probably the prevailing view on this topic by stating: "Virtually all conditions of supervised release restrict a defendant's liberty. The hallmark that separates impermissible conditions from permissible ones is whether, on a given set of facts, a particular restriction is clearly unnecessary. The record in this case, viewed as a whole, limns an adequate relationship between the nature and circumstances of the offense, the demonstrated propensities of the offender, and the special condition attached to the offender's release. No more is exigible. Consequently, the court below did not commit plain error in imposing abstinence from the consumption of alcoholic beverages as a special condition of supervised release." (Id., at 7) (Emphasis added).

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