A. Background
On June 24, 2004, the Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004), holding “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.” Id. at 2537 (citing Ring v. Arizona, 536 U.S. 584, 602 (2002); Harris v. United States, 536 U.S. 545, 563 (2002); Apprendi v. New Jersey, 530 U.S. 466, 483, 488 (2000) (emphasis in original). The Court explained: “In other words, 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. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to punishment,’ Bishop, supra, § 87, at 55, and the judge exceeds his proper authority.” Id. at 2537 (emphasis in original).
Mr. XXXX argued in the district court that Blakely
applied to the Guidelines, that under Blakely, the maximum permissible
Guidelines sentence was six months based on the facts charged in the indictment
and admitted in his guilty plea, and that under ex post facto principles
incorporated in the Due Process Clause, he could not be sentenced under the
government’s proposed “indeterminate” regime because it would increase the
maximum permissible sentence to the statutory maximum, and permit increases
without standards or meaningful appellate review. See Sentencing Memorandum at 7-13; Sentencing
Hearing Tr. at 28-29.
The district court agreed that Blakely
applied to the Guidelines, but ruled that the Guidelines were “not severable”
in Mr. XXXX’ case because they could not be “constitutionally applied in full,”
that it would therefore use “the statutory maximum as the only binding
constraint on [its] sentencing authority,” and that there would be no violation
of the Due Process Clause if the sentence was equal to or less than that under
the Guidelines if they were constitutional, that is, enhanced based on facts
found by the court. Id. at 25,
27-28.
The district court sentenced Mr. XXXX to
twelve months’ imprisonment, the low end of the range for a total offense level
of 13 in Criminal History Category I under the November 1, 1995 Guidelines
Manual. See Sentencing Tr. at
126-28. The total offense level was
calculated with a base offense level of 6 for the elements of the offense to
which Mr. XXXX admitted in his guilty plea, U.S.S.G. 2F1.1(a); an enhancement
of 8 levels for a loss of more than $200,000 but not more than $350,000 found by the court by a preponderance of the
evidence, U.S.S.G. 2F1.1(b)(I); an enhancement of 2 levels for more than
minimal planning also found by the court by a preponderance of the evidence,
U.S.S.G. 2F1.1(b)(2)(A); and an adjustment of –3 for acceptance of
responsibility, U.S.S.G. 3E1.1(b). See
Sentencing Hearing Tr. at 98-99.
The court declined to impose a sentence less than the guidelines range based on the evidence that Mr. XXXX’ Bipolar Disorder significantly contributed to the commission of the offense, an encouraged departure under U.S.S.G. § 5K2.13. The court credited that evidence, but believed that it was not required to “hear departures since I’m not determining the guidelines to be applicable here” id. at 99, and believed that a lower sentence was not “morally or legally” justified because many other defendants would have an equally compelling explanation for their conduct if they could afford to be diagnosed. See Sentencing Tr. at 109, 118, 120-23.
On January 12, 2005, the Supreme Court in United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (Jan. 12, 2005) announced two distinct holdings – one a “Sixth Amendment holding,” and the other a “remedial interpretation of the Sentencing Act” through severance and excision of statutory language. Id. at 769.
A defendant is entitled to the benefit of a new constitutional rule if his case was not yet final when the rule was announced, even though he thought the law was otherwise when he committed the offense. See Griffith v. Kentucky, 479 U.S. 314, 327-28 (1987); Marks v. United States, 430 U.S. 188, 196-97 (1977). Under ex post facto principles inherent in the Due Process Clause, however, a defendant cannot be sentenced under a judicial interpretation of a statute that disadvantages him if it was unexpected and indefensible with reference to the law in effect when he committed the offense. For these reasons, Mr. XXXX is entitled to the benefit of Booker’s constitutional rule, but cannot be subject to the detriment of its statutory revision. This case therefore should be remanded with instructions to impose a sentence no greater than six months by applying Booker’s constitutional holding to the mandatory Guidelines in effect when Mr. XXXX committed the offense.
B. Because Mr. XXXX’ Sentence is Not Final, He is Entitled to the Benefit of the Constitutional Rule Announced in Blakely and Booker.
In an opinion authored by Justice Stevens, the Court held that sentencing under the Guidelines violated the Sixth Amendment right to jury trial as interpreted in cases from Apprendi v. New Jersey, 530 U.S. 466 (2000) to Blakely v. Washington, 542 U.S. _, 124 S. Ct. 2531 (2004). See Booker, 125 S. Ct. at 748-50. In Apprendi, the Court 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.” 530 U.S. at 490. In Blakely, the Court defined the “’statutory maximum’ for Apprendi purposes” in a mandatory guidelines system as “the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant,” 124 S. Ct. at 2537 (emphasis in original), and held that a defendant in a mandatory system had a “legal right” and was “entitled to” that sentence. Id. at 2540 (emphasis in original).
The Stevens majority held that the constitutionally permissible maximum sentence announced in Blakely applied to the United States Sentencing Guidelines because they are mandatory. It said that if “the Guidelines as currently written could be read as merely advisory provisions . . ., their use would not implicate the Sixth Amendment. . . . The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges. . . . Because they are binding on all judges, we have consistently held that the Guidelines have the force and effect of laws.” Id. at 750 (citing Mistretta v. United States, 488 U.S. 361, 391 (1988); Stinson v. United States, 508 U.S. 36, 42 (1993)). “Accordingly,” the Stevens majority “reaffirm[ed the Court’s] holding in Apprendi [and in Blakely]: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 756.
Because the holding of the Stevens majority is a constitutional rule that benefits Mr. XXXX and his case is not final, there is no question that it must be applied to his case, regardless of the fact that it had not yet been announced when he committed the offense. See Griffith, 479 U.S. at 327-28 (appellants must receive the “benefit of the new rule” announced while their cases were pending on direct review); Marks, 430 U.S. at 197 (“any constitutional principle enunciated in Miller which would serve to benefit petitioners must be applied in their case”).
C. Because Mr. XXXX’ Offense Was Committed Before Booker’s Revision of the Statute Was Announced or Contemplated, Ex Post Facto Principles Incorporated in the Due Process Clause Preclude its Application in This Case.
The Ex Post Facto Clause provides that no “ex post facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3. It compares the statutory law in effect when the defendant committed the offense to the new statutory law sought to be applied, and asks whether the new law, among other things, "inflicts a greater punishment, than the law annexed to the crime, when committed," or “alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense.” Calder v. Bull, 3 U.S. 386, 390 (1798); Carmell v. Texas, 529 U.S. 513, 524 (2000). A new law that increases the statutory maximum sentence, Lindsey v. Washington, 301 U.S. 397, 401-02 (1937), or increases the presumptive sentencing range, Miller v. Florida, 482 U.S. 423, 432-33 (1987), or permits the same sentence to be imposed for additional reasons based on broader standards subject to a lesser standard of review, id. at 432-33, 435, United States v. Safarini, 257 F.Supp.2d 191, 201 (D.D.C. 2003), violates the Ex Post Facto Clause.
Because a court may not achieve “by judicial
construction” what a legislature would be prohibited from doing under the Ex
Post Facto Clause, the
same comparison applies by
virtue of the Due Process Clause when a statute has undergone judicial construction or
revision. See Marks, 430 U.S. at 191-92;
Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964). If a
judicial revision is “unexpected and indefensible by reference to the law which
had been expressed prior to the conduct in issue,” it cannot be applied to that
conduct. Bouie, 378 U.S. at 354;
see also Marks, 430 U.S. at 195-96.
Justice
Breyer’s majority in Booker “modified” the Sentencing Reform Act by “sever[ing] and excis[ing]” 18 U.S.C. §
3553(b)(1) – “the provision of the federal sentencing statute that makes the
Guidelines mandatory” – as well as 18 U.S.C. § 3742(e) – the appellate review
section “which depends upon the Guidelines’ mandatory nature.” See 125 S. Ct. at 756-57, 764. “So modified, the Federal Sentencing Act . .
. makes the Guidelines effectively advisory,” rather than mandatory, for the
very first time. Id. at
757. In so modifying the statute, the
Breyer majority increased the maximum penalty that may be constitutionally
imposed from that applicable in a mandatory system -- “the maximum authorized
by the facts established by a plea of guilty or a jury verdict,” Booker,
125 S. Ct. at 756, Blakely, 124 S. Ct. at 2537, 2538 n.8, 2540, to that
applicable in an advisory system -- the statutory maximum set forth in the
statute of conviction. It also created
a new sentencing system which replaced the guidelines, departures from the
guidelines, and review under 18 U.S.C. § 3742(e), with one requiring consideration
and weighing of all of the factors listed in 18 U.S.C. § 3553(a) subject to
“reasonableness” review. Booker,
125 S. Ct. at 757, 766.
The Breyer majority’s repeal of the statutory provisions that made the Guidelines mandatory was plainly “unexpected and indefensible” under the law as it existed when Mr. XXXX committed the offense in 1996. The Breyer majority stated that “[w]e do not doubt that Congress, when it wrote the Sentencing Act, intended to create a form of mandatory Guidelines system,” but, “given today’s constitutional holding, that is not a choice that remains open.” 125 S. Ct. at 767. It therefore “significantly alter[ed] the system that Congress designed” to make it non-mandatory. Id. at 757. The unavoidable conclusion is that the revision of the statute by the Breyer majority is a new law that previously did not exist.
Like the addition of language to a statute by the state court in Bouie, 378 U.S. at 349-50, the Breyer majority’s excision of portions of the Sentencing Reform Act is “clearly at variance with the statutory language,” and “has not the slightest support in prior . . . decisions.” Id. at 356. And, like the Supreme Court’s expansion of one of the standards defining “obscene” material in Marks, it “mark[s] a significant departure from” prior law. See 430 U.S. at 194. As the Stevens majority emphasized, Booker, 125 S. Ct. at 750, and the Breyer majority acknowledged, id. at 759, the Guidelines “as written” were mandatory up to the moment Booker was decided on January 12, 2005. The plain language of the statute made them mandatory, see 18 U.S.C. § 3553(b)(1) (court “shall impose a sentence of the kind, and within the range” established by the Guidelines), an unbroken line of Supreme Court decisions said they were mandatory, see Mistretta, 488 U.S. at 391 (“the Guidelines bind judges and courts”), Stinson, 508 U.S. at 42 (same), Glover v. United States, 531 U.S. 198, 203-04 (2001) (“any amount of actual jail time . . . under a determinate system of constrained discretion such as the Sentencing Guidelines” that results from counsel’s deficient performance constitutes prejudice under Strickland), United States v. R.L.C., 503 U.S. 291, 297-98, 306 (1992) (“maximum term of imprisonment” was that “under the statute requiring application of the Guidelines, § 3553(b)”), and nothing in either Booker opinion found “any constitutional infirmity in” the sections that were excised. Booker, 125 S. Ct. at 771 (Stevens, J., dissenting). The revision of the statute was so “unexpected and indefensible” in reference to prior law that neither the government, nor the respondents, nor any of the amici contemplated or requested it.[1] Id. at 771 (Stevens, J., dissenting).
D. The District Court Erred in Concluding that the Maximum Permissible Sentence for Purposes of the Due Process Clause Was a Guidelines Sentence Based on Judicial Factfinding.
The district court assumed that it could impose a sentence under its own remedy of excising the entire Sentencing Reform Act including the Guidelines without offending ex post facto principles incorporated in the Due Process Clause as long as the sentence did not exceed a Guidelines sentence based on judicial factfinding. However, new constitutional principles or judicial interpretations that benefit a defendant whose case is not final must be applied in his case though he thought the law was otherwise, while changes in the law after his conduct occurred that disadvantage him may not be applied in his case.
In June 1973, the Supreme Court decided Miller v. California, 413 U.S. 15 (1973), in which it defined new standards for obscenity which in one respect expanded criminal liability, and in another respect limited criminal liability on constitutional grounds.[2] In Marks v. United States, 430 U.S. 188 (1977), the defendants’ conduct preceded Miller, and they were tried after it was announced. The question presented was whether the standards announced in Miller were “to be applied retroactively to the potential detriment of a defendant in a criminal case.” Marks, 430 U.S. at 188-89. The Court held that “any constitutional principle announced in Miller which would serve to benefit petitioners must be applied in their case,” but “in accordance with Bouie, the Due Process Clause precludes the application of the standards announced in Miller to the extent those standards may impose criminal liability for conduct not punishable under the law in effect at the time they acted.” Id. at 196-97. The Court made clear that its remand of Miller and its companion cases did not mean that the Miller standards were “fully retroactive” as the court of appeals apparently thought, but that the cases were remanded for the courts below to apply only “the ‘benefits’ of Miller.” Marks, 430 U.S. at 197 n.13.
As the Supreme Court noted, Marks, 430 U.S. at 189 n.1, this Court foreshadowed its decision in United States Palladino, 490 F.2d 499 (1st Cir. 1974). There, the defendants’ conduct and trial preceded Miller, and the question on appeal was to what extent the Miller standards applied retroactively. This Court held that the defendants could not be penalized for violating standards established in Miller after their conduct took place, but, because their cases were not yet final, they could not be denied Miller’s protections. See 490 F.2d at 500-01 & n.7.
Similarly, before June 24, 1987, a “scheme or artifice to defraud” under the mail fraud statute, 18 U.S.C. § 1341, was interpreted to include the deprivation of the intangible right to honest services. On June 24, 1987, the Supreme Court decided McNally v. United States, 483 U.S. 350 (1987), holding that the mail fraud statute applied only to schemes to deprive others of property. On November 18, 1988, Congress enacted 18 U.S.C. § 1346, which made the mail fraud statute applicable to a scheme or artifice to deprive another of the intangible right of honest services. Every circuit to rule on the issue held that defendants whose conduct occurred before June 24, 1987 were entitled to the benefit of the McNally interpretation, and that it would violate the Ex Post Facto Clause to apply section 1346 to them, despite the fact that the pre-McNally interpretation of the statute put them on notice that honest services fraud was a crime. See, e.g., United States v. Schwartz, 924 F.2d 410, 419 (2d Cir. 1991); United States v. Miller, 997 F.2d 1010, 1016 n.5 (2d Cir. 1993); United States v. Bucuvalas, 970 F.2d 937, 942 n.9 (1992); United States v. Telink, Inc., 910 F.2d 598, 601 (9th Cir. 1989); United States v. Bush, 888 F.2d 1145, 1145-46 (7th Cir. 1989). As the Second Circuit explained, “Although the critical concept contained in the ex post facto clause is the need to give notice of what constitutes activity punishable under the law, the district court cited no authority – and we are not aware of any – for the proposition that a defendant’s subjective belief that his actions might violate then existing law, though in fact they did not, allows application of an ex post facto law to his case.” Schwartz, 924 F.2d at 419.
The Supreme Court has never been presented with a case in which the maximum penalty under a sentencing law was held to be unconstitutional in the same case in which the court rewrote the law to increase the maximum permissible penalty, or to broaden sentencing standards or lessen the standard of appellate review. However, the same analysis should apply when a sentencing law rather than a substantive criminal statute is at issue. The Ex Post Facto Clause, as well as the Due Process Clause, applies to both. See Johnson v. Kindt, 158 F.3d 1060, 1063 (10th Cir. 1998) (Bouie and its progeny apply to changes in sentencing laws); Davis v. Nebraska, 958 F.2d 831, 833-34 (8th Cir. 1992) (same); Helton v. Fauver, 930 F.2d 1040, 1045 (3d Cir. 1991) (same); Dale v. Haeberlin, 878 F.2d 930, 934 (6th Cir. 1989) (same); Rubino v. Lynaugh, 845 F.2d 1266, 1273 (5th Cir. 1988) (same).
That Mr. XXXX must be sentenced under mandatory Guidelines subject to the constitutional maximum sentence first defined in Blakely is further supported by the statutory requirement that a court in re-sentencing a defendant must apply the guidelines “that were in effect on the date of the previous sentencing of the defendant prior to the appeal,” 18 U.S.C. § 3742(g)(1), unless to do so would violate the Ex Post Facto Clause. U.S.S.G. § 1B1.11(b)(1). The Guidelines under which Mr. XXXX was sentenced on October 4, 2004 were mandatory and subject to the constitutional maximum sentence defined in Blakely.
E. The Due Process Issue Was Not
Presented or Addressed in Booker.
The Breyer majority stated that “we must apply today’s holdings – both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act – to all cases on direct review.” Booker, 125 S. Ct. at 769. In doing so, it cited Griffith, 479 U.S. at 328, for the proposition that a new rule must be applied retroactively to all cases pending on direct review or not yet final “with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. This, however, refers to constitutional rules that “benefit” defendants, Griffith, 479 U.S. at 327, 328, not to a judicial revision of a statute that disadvantages a defendant, which is precluded by the Due Process Clause.
The revision of the statute is not itself a constitutional rule, first, because the excised sections were not themselves unconstitutional or held to be unconstitutional. See Booker, 125 S. Ct. at 771 (Stevens, J., dissenting); id. at 797 (Thomas, J., dissenting). Nor did the Breyer majority contend that it is a constitutional rule, but instead consistently distinguished between its “severance and excision” of the statute and the Stevens majority’s “constitutional holding.” Id. at 756, 757.
Booker’s case had to be remanded because the district court “applied the Guidelines as written and imposed a sentence higher than the maximum authorized by the jury’s verdict.” Booker, 125 S. Ct. at 769. Fanfan’s case was remanded although his sentence was authorized by the jury’s verdict and therefore did not violate the Sixth Amendment, with the comment that “the Government (and the defendant should he so choose) may seek resentencing under the system set forth in today’s opinions.” Id. Neither Booker nor Fanfan argued that the Due Process Clause would preclude a sentence greater than that authorized by the jury’s verdict under the Court’s revision of the Sentencing Reform Act, nor could they make that argument unless and until the district court actually imposed such a sentence on remand. Thus, the issue was not presented or addressed, and nothing can be read into the Court’s silence on the subject. Cf. Booker, 125 S. Ct. at 753-54 (rejecting the government’s contention that stare decisis precluded application of Blakely to the Guidelines because in none of the cases cited did the appellant raise the argument that his or her sentence exceeded the sentence authorized by the jury’s verdict). As Marks illustrates, the Supreme Court has previously announced rules in the same decision that both benefit and disadvantage defendants, and held later when the issue was squarely presented that the former are retroactive, while the latter are prospective only.
Here, the issue is squarely presented. Although the district court did not sever and excise those portions of the Sentencing Reform Act that made the Guidelines mandatory, its ruling that the Sentencing Reform Act and Guidelines were unconstitutional as a whole had the same effect in denying Mr. XXXX the retroactive benefit of the constitutionally permissible maximum sentence announced in Blakely and reaffirmed in Booker. In addition, the court sentenced Mr. XXXX under new and disadvantageous standards by ignoring an encouraged departure defined in the Guidelines for reasons not found in the Guidelines.
[1] The circumstances were
quite different in Rogers v. Tennessee, 532 U.S. 451 (2001), where the Supreme Court held that judicial
abolition of a common law rule was not unexpected or indefensible with
reference to prior law because the rule was “widely viewed as an outdated relic
of the common law,” had been “legislatively or judicially abolished in the vast
majority of jurisdictions,” “did not exist as part of Tennessee’s statutory
criminal code,” and “had never once served as a ground of decision in any
prosecution for murder in the State.” Id.
at 462-64.
[2] The Court expanded criminal liability by replacing the “utterly without redeeming social value” test with the “taken as a whole, lacks serious literary, artistic, political, or scientific value” test. It restricted criminal liability on constitutional grounds by limiting permissible regulation of obscenity to depictions of sexual conduct “specifically defined by the applicable state law.”