Vol. 8, No. 29
Covering Cases Published in the Advance Sheets through July 16, 2001

Highlights of this Issue:

Apprendi Watch:

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

Sleeping Lawyer Case:

We have moved!!!

Please note that we have moved our offices. Our new mailing address is:

P.O. Box 11, Washington Bridge Station, New York, NY 10033

Our new phone number is (212) 781-8685
and our new fax number is (212) 795-2943.

United States v. Buckland, No. 99-30285 (9th Cir. 8/09/2001) (Judge Tashima)

Out of the 300-odd lower court Apprendi decisions that have been published since June 26, 2000, when the Supreme Court released its monumental decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the instant case is one of the most far reaching. Here, to the surprise of many, a divided panel from the Ninth Circuit held that the provisions of 21 U.S.C. § 841(b)(1)(A) and (B) are facially unconstitutional under Apprendi. Bearing in mind that § 841(b) has been the principal drug statute in the Government's arsenal, this decision, if upheld, could have a significant impact on scores of past drug convictions in the Ninth Circuit, and it would probably also affect future drug prosecutions in that Circuit in ways that are not yet foreseeable.

The defendant in this case, Calvin Wayne Buckland, was convicted on several drug charges for his role in distributing methamphetamine. He was sentenced to 324 months in prison after the district court found that he was responsible for eight kilograms of methamphetamine. He filed this direct appeal, contending that his drug sentence was imposed in violation of Apprendi and that 21 U.S.C. § 841(b) was facially unconstitutional. Two of the judges agreed with both contentions. They vacated Buckland's sentence and remanded the case for resentencing under the provisions of 21 U.S.C. § 841(b)(1)(C) - which limits the new sentence to a 20 year maximum.

The majority's language was broad and unqualified. While it recognized the maxim that "constitutionally doubtful constructions should be avoided where fairly possible'," it also emphasized that this canon of construction does not permit a court to "carry this to the point of perverting the purpose of a statute . . . or judicially rewriting it." However, it firmly concluded that "[u]nder the relevant inquiry' set forth in Apprendi, . . . we are unable to avoid the conclusion that § 841(b) is unconstitutional."

According to the majority, that "relevant inquiry" is the effect, rather than the form, of the factor - "does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" In answering that question in the affirmative, the majority reasoned: "Subsections 841(b)(1)(A) and (B) permit the judge to find a fact, the quantity of drugs, that increases the maximum sentence beyond the 20-year maximum in § 841(b)(1)(C) that may be imposed for an unspecified amount of drugs. They therefore remove[ ] the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.' (Citing Apprendi, id., at 482-83). The district court's finding that Buckland was responsible for eight kilograms of methamphetamine increased his potential maximum sentence from 20 years, based on the jury finding of an unspecified amount of methamphetamine, to life imprisonment. This differential is unquestionably of constitutional significance.' . . . Under the relevant inquiry' set forth in Apprendi, therefore, we are unable to avoid the conclusion that § 841(b) is unconstitutional."

Interestingly, the panel specifically rejected as unworkable a "middle road" - by which drug quantity is sometimes an element of the offense that must be proven to the jury beyond a reasonable doubt, and sometimes a sentencing factor that the judge can decide by a preponderance of the evidence. The panel stated: "Regardless of whether the Supreme Court intended to abolish the distinction between offense elements and sentencing factors, the fact remains that quantity must either be submitted to the jury and proven beyond a reasonable doubt, or it is a factor that can be decided by the sentencing judge. This approach, of requiring it to be proven to the jury only if the resulting sentence will be beyond the statutory maximum, but allowing it to be decided by the judge if it is not, is unworkable. As a practical matter, the prosecutor will always have to submit drug quantity to the jury."

It is hard to predict where this decision will lead. It will certainly be appealed - quickly, we suspect; and the en banc court is likely to vacate this ruling while the full court considers what to do. In the end, much like the Tenth Circuit's decision in U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998) (where a panel concluded that Government promises of leniency made to witnesses, in exchange for testimony, violated the anti-gratuity provisions of 18 U.S.C. § 201(c)), the instant decision may quickly become a short-lived aberration.

In the meantime, the decision appears to stand for the proposition that any sentence for a § 841 or § 846 crime in excess of the statutory maximum of 20 years (for those not convicted of priors) is unconstitutional and must be reduced to not more than 20 years. We will certainly hear a lot more about this decision in coming weeks.

United States v. Bautista, No. 00-3227 (7th Cir. 07/12/2001) (Judge Williams)

The defendant in this case, a 26-year old resident alien, came to the U.S. from Peru at the age of 13. He pled guilty to one count of traveling in interstate commerce for the purpose of engaging in sexual acts with a minor, in violation of 18 U.S.C. § 2423(b). At sentencing, the district court found that Bautista would suffer an "enormously draconian deprivation" as a result of the deportation that would likely follow his sentence. It therefore departed downward by three levels from the applicable Guideline sentencing range of 27 to 33 months; and sentenced the defendant to 18 months incarceration. Although we have never understood what benefits America receives from long and costly incarcerations of aliens prior to deportation, the Government appealed the 18 month sentence.

The Seventh Circuit reversed and remanded for resentencing without any departure. The Court noted that it had previously considered whether a defendant's deportable alien status - "a factor not mentioned in the Guidelines" - is a permissible consideration at sentencing. It noted, for example, that in U.S. v. Gonzalez-Portillo, 121 F.3d 1122, 1125 (7th Cir. 1997), it held that, for a defendant sentenced under the guideline for unlawfully entering the United States, U.S.S.G. § 2L1.2, the prospect of deportation was "certainly accounted for" in that Guideline, and therefore could not be a basis for a departure.

However, in later cases involving crimes that did not necessarily involve illegal entry or presence in the United States, the Court suggested that departures based on the defendant's alien status may be permissible. Thus, in U.S. v. Farouil, 124 F.3d 838, 847 (7th Cir. 1997) (a case involving the importation of drugs), the Court held that there was no basis for concluding that the Guidelines took the defendant's alien status into account in setting the level for the offense, and therefore the district court was free to consider the defendant's argument that the conditions of his confinement would be exceptionally harsh on him. Then, in U.S. v. Guzman, 236 F.3d 830, 834 (7th Cir. 2001) (which involved a conspiracy to distribute drugs), the Court rejected the defendant's argument that her expected deportation was itself punitive and therefore warranted a reduction in her sentence because such an argument implied that any alien who commits a crime should receive a shorter sentence than a citizen'."

Building on those decisions, the Court attempted to establish a more general rule for the future. It concluded that "a downward departure based on collateral consequences of deportation is justified only if the circumstances are extraordinary." It then concluded that none of the circumstances cited by the defendant in the instant case were "extraordinary."

Here, in support of his motion for a downward departure, the defendant argued that he had lived half his life in the United States and that deportation would be especially harsh because he would be cut off from family and home. He also pointed to physical and emotional abuse by his father when he was a child, which, he claimed, resulted in psychological damage and severe personality disorders. While the Court agreed that Bautista's upbringing was "undeniably unfortunate," it also held that there was nothing sufficiently extraordinary about those factors, either individually or collectively, that warranted relief.

Burdine v. Johnson, No. 99-21034 (5th Cir. 8/13/2001) (Judge Benavides) (En banc)

Ah, the sweet smell of justice in Texas! In this case, a divided en banc court reversed a highly criticized ruling by a three-judge panel last year which reversed a district court's order which granted a Texas death row inmate a new trial because his counsel had slept through parts of his trial. (See, Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000) P&J, 10/16/00)). Writing for the majority, Judge Benavides reversed the panel's decision and reinstated the district court's order granting a new trial after concluding that the lawyer dozed off often enough and long enough to deny the defendant his right to effective assistance of counsel at critical stages of his trial.

Five judges dissented and wrote long, impassioned pleas that it was wrong to grant the defendant a new trial for a reason as flimsy as sleeping counsel, in part because the defendant was clearly guilty, and in part because there had been no state findings on such important and relevant questions as:

We can only assume from the last item that, in the minds of at least some of the judges from the Fifth Circuit, sleeping during trial is more excusable on certain days of the week and at certain times of the day - although the dissenting judges declined to amplify their views on that point any further!


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:


This Week

Year to Date

Since 1996

Courts of Appeal



13, 064

District Courts




Copyright 2001 Punch and Jurists, Ltd.