Opinion
No. 8:04CR24.
July 22, 2004
MEMORANDUM OPINION
Defendant Chuck Terrell is before the court for sentencing. The defendant entered a plea of guilty to the indictment on April 8, 2004.
I. FACTS
The defendant was indicted in a one-count indictment with a violation of 18 U.S.C. § 922(g)(1), possession of firearms and ammunition by a felon. The indictment asserted that defendant "did knowingly possess and receive firearms and ammunition, to wit: a Springfield 22 caliber and a Harrington Richardson 20 gauge shotgun, and 48 Winchester 22 caliber cartridges," all of which had been transported in interstate commerce. Filing No. 1, Indictment at 1. That crime is punishable by a maximum term of incarceration of ten years, a fine up to $250,000 or both. 18 U.S.C. § 924(a)(2).
In his petition to enter a plea of guilty, the defendant states that his reason for entering the plea is that "[i]t is in my best interest." Filing No. 17, Petition at 12. To establish a factual basis for the plea, the defendant indicates, "I possessed a firearm on the date alleged in the indictment. I had the firearms to clean for people to earn money. They were all disassembled and I have been previously convicted of a felony offense." Id. at 14. At the plea colloquy, the defendant made essentially the same admission; he stated only that he was a felon and that he had possessed guns.
Under the plea agreement, the defendant agreed to enter a plea to the indictment and the United States ("the government") agreed to make a non-binding recommendation at sentencing that the court impose sentence at the low end of the applicable guidelines imprisonment range. Filing No. 18, Plea Agreement at 1. The court accepted the plea, but deferred approval of the plea agreement pending review of a presentence investigation report ("PSR") by the United States Office of Probation ("Probation"). Probation prepared a PSR, calculating defendant's sentence under the United States Sentencing Guidelines ("Guidelines"), Filing No. 16 (sealed). The United States adopted the findings set out in the PSR. Filing No. 13.
In the PSR, under the heading "Offense Conduct," Probation related the prosecutor's version of events, noting that the Franklin County Sheriff's Department executed a search warrant on the defendant's residence and located two disassembled weapons. Probation reviewed the sheriff's offense report and noted that "[d]eputies located a disassembled short shotgun in the residence. It appeared that the gun was being refinished, as the stock was sanded and refinished." Probation further noted that sheriff's deputies also found small amounts of marijuana and methamphetamine in the residence.
Probation identified the base offense level as the level for a felon in possession of a short shotgun under U.S.S.G. § 2K2.1, arriving at a base offense level of 20. Probation added two additional points because the offense "involved a destructive device." U.S.S.G. § 2K2.1(b)(3). It then subtracted three points for the defendant's acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense level of 19.
Under criminal history, the defendant was assessed five criminal history points under U.S.S.G. § 4A1.1(c) for offenses such as driving while impaired, wrongful use/possession, possession of drug paraphernalia, and possession of methamphetamine. Because only four 4A1.1(c) offenses can be counted under that section, U.S.S.G. § 4A1.1(c), App. Note 3, Probation assessed the defendant four points, plus an additional two points pursuant to 4A1.1(d) for having committed the instant offense while on probation for a Kansas sentence imposed on May 28, 2003. Accordingly, Probation determined the defendant's criminal history category to be III. The resultant sentencing range, based on a total offense level of 19 at criminal history category III, was thirty-seven to forty-six months.
Before the defendant's scheduled sentencing, the United States Supreme Court decided Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (June 24, 2004). In that case, the Court invalidated a sentence imposed under the State of Washington's sentencing regime. Id. at 2544. The Court found that increasing a defendant's sentence beyond the maximum that could have been imposed absent the finding of a particular fact by the sentencing judge violates the Sixth Amendment. Id. at 2538. This court granted the parties additional time to consider and brief any issues arising in light of Blakely.
The defendant then filed an objection to the PSR premised on Blakely. Filing No. 20. He asserts that the PSR contains facts that he did not admit and that a jury did not find. He urges the court to discount these facts and to impose a sentence in the range of fifteen to twenty-one months. The defendant's proposed calculation is based on a base offense level of 14 for being a felon in possession of a firearm under U.S.S.G. § 2K2.1 with a two-point adjustment for acceptance of responsibility. The government argues that under the plea agreement the defendant waived his right to object to the PSR. The government also argues that the Blakely decision does not affect the federal sentencing scheme, but alternatively argues that if Blakely does reach the Guidelines and the court finds the Guidelines unconstitutional, the court should exercise its discretion to sentence the defendant within the range of thirty-seven to forty-five months. The government seeks enhancements for possession of a short shotgun and for possession of a destructive device.
II. DISCUSSION
Although the Supreme Court stated in Blakely that the federal scheme was not at issue, Blakely, 124 S. Ct. at 2538 n. 9, the court comes to the unmistakable conclusion that the constitutional precepts outlined in Blakely are equally applicable to the United States Sentencing Guidelines. See id., 124 S. Ct. at 2543-44 (O'Connor, J., concurring); United States v. Booker, No. 03-4225, 2004 WL 1535858 at *3 (7th Cir. July 6, 2004). For purposes of the Blakely analysis, no meaningful difference exists between the sentencing regime employed by the State of Washington, and the federal sentencing guidelines at issue here. See United States v. Montgomery, No. 2:03-CR-801, 2004 WL 1535646 at *1 (D. Utah July 8, 2004) (noting "the statutory framework of the sentencing regime employed by the State of Washington is substantially similar to the federal sentencing guidelines"); United States v. Shamblin, No. 2:03-00217, 2004 WL 1468561, at *12-14 (S.D. W.Va. June 30, 2004) (comparing Washington sentencing scheme to federal scheme).
The Supreme Court's reasoning in Blakely applies to the guideline sentence in this case. The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and a public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witness in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const. Amend VI. The right to a trial by jury and its attendant protections are not a "procedural formality, but a fundamental reservation of power in our constitutional structure." Blakely, 124 S. Ct. at 2538-39; see also Ring v. Arizona, 536 U.S. 584, 592-93 and n. 1 (2002) (holding that any fact essential to imposition of the death penalty must be submitted to a jury and found beyond a reasonable doubt); Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (finding a sentence violates the right to "a jury determination that [the defendant] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt"); Jones v. United States, 526 U.S. 227, 243 n. 6 (1999) (holding that the carjacking statute, if construed as defining a single crime with three maximum penalties instead of three distinct offenses would violate the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment).
The Guidelines have the force of law and bind judges and courts in the exercise of their responsibility to pass sentence in criminal cases. United States v. Stinson, 508 U.S. 36, 42 (1993) (explaining that the Guidelines commentary is authoritative unless it violates the Constitution or a federal statute); Mistretta v. United States, 488 U.S. 361 (1989) (upholding the constitutionality of the federal sentencing guidelines). Federal statutes direct the district judge to follow the Guidelines and require the Guidelines to be consistent with the criminal code. See 18 U.S.C. § 3553(b) (stating that the sentencing court "shall impose a sentence of the kind, and within the range," established by an applicable guideline); 28 U.S.C. § 994(b)(1) stating the Commission shall "establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code"). The Guidelines have been recognized as a rational sentencing system. United States v. Chapman, 500 U.S. 453, 466 (1991). In Blakely, the Supreme Court recognized the "salutary objectives" behind determinate sentencing schemes. Blakely, 124 S. Ct. at 2540. The Guidelines thus remain the law that binds this court in sentencing matters, and to the extent that the Guidelines can be applied in a manner consistent with the Sixth Amendment and Due Process, the court finds they should continue to be applied. United States v. Montgomery, 2004 WL 1535646 at *3; but see United States v. Croxford, No. 2:02-CR-00302PGC, 2004 WL 1462111 (D. Utah June 29, 2004) (as amended July 7, 2004) (electing not to apply Guidelines).
The court has a duty to avoid a construction of a statute that casts doubt on its constitutionality. Jones v. United States, 119 S. Ct. 1215, 1222 (1999). Moreover, Blakely "is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment." Blakley, 124 S. Ct. at 2540. Notably, Blakely did not invalidate Washington's entire sentencing scheme; rather, the Court merely set aside the defendant's sentence as unconstitutional. The court finds Blakely does not provide support for a wholesale declaration that the Guidelines are unconstitutional. Application of the Guidelines will not violate the Constitution in every case, since "the problem lies in upward enhancements and departures, and their accompanying lack of a citizen jury 'check,' and the lack of application of the otherwise-required heightened standard of proof (beyond a reasonable doubt) that would be required in that setting." Montgomery, 2004 WL 1535646 at *2; see also Booker, 2004 WL 1535858 at *3 (finding the Guidelines violate the Sixth Amendment only in cases "in which they limit defendants' right to a jury and to the reasonable-doubt standard," and thus infringe the right of a defendant "to have a jury determine [enhancing facts] (using that standard)." Thus, the court finds that it will continue to follow the Guidelines, to the extent they comport with the constitutional guarantees set out in Blakely and the cases on which Blakely is based.
Although Blakely involved only the Sixth Amendment right to jury trial, the concomitant right to proof beyond a reasonable doubt, premised on the Due Process Clause of the Fifth Amendment, also affects this discussion. Jones and Apprendi were also based on the Due Process Clause. Apprendi, 530 U.S. at 477; Jones, 526 U.S. at 243. Premised as it is on Apprendi and Jones, the Blakely analysis applies equally to the reasonable doubt standard.
Blakely restates Apprendi's holding that, under the Sixth Amendment, all facts used to increase a defendant's sentencebeyond the statutory maximum must be charged and proven to a jury. Blakely, 124 S. Ct. at 2537; Apprendi, 530 U.S. at 483. Blakely clarifies the meaning of "statutory maximum." See Blakely 124 S. Ct. at 2537. Before Blakely was decided, it was thought that Apprendi did not apply to guideline calculations made within the statutory maximum, interpreted as the top end of the sentencing range set out in the criminal code. See, e.g., United States v. Francis, 367 F.3d 805, 820 (8th Cir. 2004). It is now clear, however, that the "relevant statutory maximum" to which the Supreme Court refers for Apprendi purposes is the upper bound of the appropriate guideline range, established by facts proven to a jury beyond a reasonable doubt or admitted by the defendant. See Blakely, 124 S. Ct. at 2538 (noting "[t]he 'maximum sentence' is no more 10 years here than it was 20 years in Apprendi (because that is what the judge could have imposed upon finding a hate crime) or death in Ring (because that is what the judge could have imposed upon finding an aggravator)"; Shamblin, 2004 WL 1468561 at *8.
"The relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely, 124 S. Ct. at 2537 (emphasis in original). In other words, if a defendant's guideline sentencing range would be increased by reason of a certain factual finding, that factual finding must be charged, proved beyond a reasonable doubt, and submitted to a jury. Shamblin, 2004 WL 1468561 at *8. Blakely comes into play where, under the Guidelines, a judge can impose a longer sentence than the sentence he could impose solely in reliance on the facts a defendant either admitted in a plea agreement or plea colloquy, or on facts that were found beyond a reasonable doubt by a jury. See United States v. Simpson, 2004 WL 1588085 at *2 (7th Cir. July 19, 2004).
Under the Sentencing Guidelines, drug amounts, enhancements based on specific offense characteristics, and upward departures all have the same effect — namely, they all increase the maximum permissible sentence under the Guidelines. Shamblin, 2004 WL 1468561 at *8. A judge's reliance on such factors at sentencing, if not proven to a jury beyond a reasonable doubt, would therefore be unconstitutional. Id.
This court reads Blakely, together with the cases on which it is premised, as establishing that a fact that enhances a defendant's sentence beyond the maximum, as understood in Blakely, operates as the functional equivalent of an element and must be charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt. See Blakely, 124 S. Ct. at 2537 (emphasizing finding "all the facts 'which the law makes essential to the punishment'"); Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003) (plurality opinion) (finding an aggravating circumstance that makes a defendant eligible for the death penalty is the functional equivalent of an element of a greater offense and noting the issue is central because "'murder plus one or more aggravating circumstances' is a separate offense from 'murder' simpliciter."); Ring, 536 U.S. at 609 (stating that "[b]ecause Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury"); Apprendi, 530 U.S. at 490 (stating "other 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"); Jones v. United States, 526 U.S. at 243 and n. 6 (noting that judicial factfinding by a preponderance will not support the application of a provision that increases the potential severity of the penalty as to an element, as opposed to a sentencing factor, and precisely stating the principle that the Fifth Amendment Due Process Clause and the notice and jury trial guarantees of the Sixth Amendment require that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt").
Blakely expressly authorizes a defendant to waive the right to a jury trial and to consent to factfinding by the court. Blakely, 124 S. Ct. at 2541 ("When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding."). Such judicial factfinding must still satisfy the standard of "proof beyond a reasonable doubt," however. Simply put, the standard of proof is not the defendant's to waive; it is a burden placed on the government, without which a conviction cannot be obtained. See In the Matter of Winship, 397 U.S. 358, 364 (1970) ("The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). The standard not only protects the accused from error, but is "indispensable to command the respect and confidence of the community in applications of the criminal law." Id. at 363. Accordingly, "[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty." Id. See also Victor v. Nebraska, 511 U.S. 1 (1994) ("The Due Process Clause requires the government to prove a criminal defendant's guilt beyond a reasonable doubt, and trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires."); Sullivan v. Louisiana, 508 U.S. 275, 278, 282-83 (1993) (stating that "the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt" and noting that an instructional error misdescribing the burden of proof will vitiate the jury's findings: "[d]enial of the right to a jury verdict of guilt beyond a reasonable doubt" is structural error not subject to harmless error review); Estelle v. McGuire, 502 U.S. 62, 72 n. 4 (1991) ("[T]he prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense"); Jackson v. Virginia, 443 U.S. 307 (1979) (The Winship doctrine, "establishing so fundamental a substantive constitutional standard, must also require that the factfinder will rationally apply that standard to the facts in evidence"); Patterson v. New York, 432 U.S. 197, 215 (1977) (recognizing a limit on state authority to reallocate traditional burdens of proof); United States v. Ameline, No. 02-30326, slip. op. at 34 n. 19 (9th Cir. July 21, 2004).
Characterization of facts that increase a defendant's maximum sentence as "the functional equivalent of elements" as opposed to sentencing factors means that judicial factfinding by a preponderance of evidence will not satisfy the Due Process Clause with respect to those facts. Cf. United States v. Watts, 519 U.S. 148, 154 (1997) (sentencing enhancements do not punish a defendant for crimes of which he was not convicted); McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986) (visible possession of a weapon not found to be an element of crime when proof of that fact did not expose defendant to greater or additional punishment).
The problematic issue in Blakely, then, is "the authority of the sentencing judge to find the facts that determine how [sentencing] discretion shall be implemented and to do so on the basis of only the civil burden of proof." Booker, 2004 WL 1535858 at *2 (noting "[t]he vices of the guidelines are thus that they require the sentencing judge to make findings of fact (and to do so under the wrong standard of proof), and that the judge's findings largely determine the sentence, given the limits on upward and downward departures.") (citations omitted). Accordingly, as long as this court does not rely on factual findings that contravene Blakely, it will continue to apply the Guidelines.
Blakely does not apply to enhancing facts based on recidivism, nor does it apply to facts that trigger a minimum sentence as opposed to exceeding a maximum sentence. See Almendarez-Torres v. United States, 523 U.S. 224, 229 (1998) (prior convictions); Harris v. United States, 536 U.S. 545, 554 (2002) (mandatory minimum).
III. APPLICATION TO THIS CASE
This case fits squarely within the holding of Blakely. As applied to this sentencing, the court finds that the Guidelines can be applied in a manner consistent with Sixth Amendment and Due Process guarantees, as long as the court does not rely on facts that were not found by a jury or were not admitted by the defendant.
First, the court rejects the government's contention that the plea agreement precludes the defendant from making these objections. At a minimum, the defendant must understand the "critical" or "essential" elements of the offense to which he or she pleads guilty. See Bousley v. United States, 523 U.S. 614, 618-19 (1998) (observing that the defendant's plea would be "constitutionally invalid" if "neither he, nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged."). The defendant could not have knowingly waived rights that neither he nor this court knew he had before the Blakely decision.
The defendant has admitted to being a felon in possession of firearms and ammunition. The government urges that his sentence should be enhanced because the weapon he possessed was a short shotgun and a short shotgun is characterized under the Guidelines as a "destructive device." Although the indictment sets out the make and model of the weapons that the defendant possessed, there is no evidence that either of these weapons was a short shotgun, a sawed-off shotgun, or a destructive device. Statements in the PSR are not evidence. United States v. Wise, 976 F.2d 393, 404 (8th Cir. 1992) (en banc). If the government had desired to punish the defendant for possession of a short shotgun, sawed-off shotgun, or destructive device, it could have prosecuted him under the statute that criminalizes possession of such devices. See 26 U.S.C. § 5861.
A destructive device is "a type of firearm listed in 26 U.S.C. § 5845(a)." U.S.S.G. § 2K2.1, comment (n. 4).
The facts that establish that the defendant's base offense level under the Guidelines should be 20 and that two points should be added to that base offense level have not been charged in the indictment or proved to a jury beyond a reasonable doubt. Therefore, the defendant's guideline sentencing range cannot be increased in reliance on those facts without violating the defendant's constitutional rights. See Blakely, 124 S. Ct. at 2538.
The defendant admitted only that he is a felon and that he possessed a firearm. Accordingly, the court finds that the defendant's base offense level is determined with reference to U.S.S.G. § 2K2.1(a)(6), which sets the level at 14. That level will be reduced by two points for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a base offense level of 12. The defendant's criminal history category is established at level III. The defendant's sentencing range is accordingly fifteen to twenty-one months. The government urges a sentence at the low end of that range. Accordingly, the defendant will be sentenced to fifteen months imprisonment. A fine is waived because of defendant's inability to pay.
IT IS ORDERED that
1. The defendant will be sentenced in accordance with this memorandum opinion;
2. This memorandum opinion is incorporated in the court's statement of reasons; and
3. A judgment of conviction will be entered in conformity with this memorandum opinion.