BOOKER

LITIGATION STRATEGIES

MANUAL

A Reference for Criminal Defense Attorneys

Distributed February 17, 2005

Revised April 15, 2005

Federal Defender Office

Eastern District of Pennsylvania

Maureen Kearney Rowley, Chief Federal Defender

Joseph Miller, First Assistant Federal Defender

Felicia Sarner, Supervising Assistant Federal Defender

Leigh Skipper, Supervising Assistant Federal Defender

(215) 928-1100

Prepared by

David L. McColgin, Supervising Appellate Attorney

Brett G. Sweitzer, Research and Writing Attorney

UNITED STATES v. BOOKER

Litigation Strategies for Criminal Defense Attorneys ^[1]

Revised April 15, 2005

On January 12, 2005, the Supreme Court handed down its decision in the consolidated cases of United States v. Booker and United States v. Fanfan, 125 S. Ct. 738 (2005). The Court=s decision consisted of two separate majority opinions.

In the first opinion, authored by Justice Stevens, the Court held that the rule of Blakely v. Washington, 124 S. Ct. 2531 (2004) applies to the federal sentencing guidelines because their mandatory application under the Sentencing Reform Act of 1984 (SRA) renders the top of each guidelines range a Astatutory maximum@ punishment for Apprendi purposes. Guidelines enhancements based on judge-found facts, which increase the applicable sentencing range and thus the statutory maximum, therefore violate the Sixth Amendment right to jury trial.

In the second opinion, authored by Justice Breyer, the Court held that the proper remedy, in light of the Court=s Sixth Amendment holding, is for the Court to judicially strike the language from the SRA that makes the sentencing guidelines mandatory. The guidelines thus become Aeffectively advisory@ in all cases, including those in which there are no Sixth Amendment-offending enhancements. As a result, the guidelines are now just one factor among several that sentencing courts are required to consider in imposing a sentence that is Asufficient but not greater than necessary@ to achieve the purposes of sentencing set forth in 18 U.S.C. ' 3553(a)(2).

This manual discusses Booker and reviews defense litigation strategies in light of the Court=s ground-breaking decision. This revised version of the manual includes new sections covering the implications of Shepard v. United States, 125 S. Ct. 1254 (2005), Crawford v. Washington, 541 U.S. 36 (2004) as well as other recent Supreme Court cases related to sentencing. It has also been updated to include recent cases from the circuit and district courts applying Booker. This and future versions of the manual will be available at www.fd.org.

TABLE OF CONTENTS

PAGE

I. The Supreme Court Decision..... 1

A. Facts and Lower Court Rulings 1

1............ Booker........... 1

2............ Fanfan........... 1

B. The Sixth Amendment Ruling 2

1. Holding 2

2. Court=s Reasoning 2

C. The Remedy Ruling 3

1............ Holding........... 3

2............ Court=s Reasoning........... 4

3............ Application to Booker and Fanfan........... 4

II.. Determining a Sentence Post-Booker: the Basics of Section 3553(a)...... 4

A............ The Section 3553(a) Sentencing Mandate: the AParsimony Provision@........... 5

B............ The Section 3553(a) Factors to be Considered in Complying With the Sentencing Mandate ........... 5

C............ The Weight Given to the Guidelines........... 6

III. Post-Booker Sentencing Practice...... 8

A............ The Pre-Sentence Investigation Report and Form-1 Interview with Probation........... 8

B............ The Sentencing Memorandum and ADeparture@ Arguments........... 8

C............ The Sentencing Hearing........... 9

1............ The ' 3553(a) statutory factors........... 9

2............ The ' 3553(c) Statement of Reasons........... 10

IV. Sentencing Arguments Available in Light of Booker..... 11

A............ Section 3582 Limits on Sentences of Imprisonment........... 11

TABLE OF CONTENTS CONTINUED

PAGE

B............ The Use of Information Under Section 3661........... 12

C............ Due Process (ex post facto) Argument for All Offenses Committed pre-Booker: Courts may sentence anywhere below, but not above, the top of the guidelines range taking account only of jury-found or admitted facts........... 12

1............ Step One: Applying principles of due process and ex post facto........... 13

a............ Ex post facto principles are inherent in the Due Process Clause............ 13

b............ The Booker remedy of advisory guidelines raises due process/ex post facto concerns. ........... 14

2............ Step Two: Applying Booker=s Sixth Amendment ruling........... 18

3............ What=s wrong with Duncan........... 19

D............ Alternative Ex Post Facto Clause Argument........... 22

E............ Burden of Proof for Sentencing Enhancements: Beyond a reasonable doubt?........... 23

F............ Applying Crawford=s Confrontation Clause Ruling at Sentencing........... 24

G............ Can district courts require that any facts increasing the advisory guideline range be alleged in the indictment and proved to the jury?........... 25

H............ Arguments Against Sentences Exceeding the Guideline Range........... 26

I............ Avoiding Unwarranted Disparity: Career Offender, Crack, Illegal Reentry........... 27

1............ Crack Cocaine ........... 27

2............ Career Offenders ........... 28

3............ AFast track@ or Aearly disposition@ programs ........... 29

J............ Probationary Sentences and Split Sentences: Zones A, B, C........... 29

K. ........... Safety Valve........... 30

L. ........... Child Sex Abuse Cases........... 31

M. ........... The Prior Conviction Exception, Shepard and Almendarez-Torres........... 32

TABLE OF CONTENTS CONTINUED

PAGE

1............ The basic holding of Shepard........... 32

2............ The implications of Shepard for the prior conviction exception........... 33

3............ Applying Shepard ........... 34

N............ Mandatory Minimum Sentences, Harris, and Booker........... 38

O............ Booker=s Effect on Restitution........... 38

P............ Booker=s Effect on Supervised Release........... 39

V. Booker Implications for Cases at Various Procedural Stages 40

A. Pre-plea and Pre-trial Cases 40

1............ ABlakely-ized@ Indictments........... 40

2............ Plea Agreements........... 41

3............ Cooperation plea agreements under U.S.S.G. ' 5K1.1........... 42

4............ Cooperation plea agreements under Section 3553(e)........... 42

5............ Blakely Waivers........... 43

6............ Appeal Waivers........... 43

B............ Post-plea/trial, Pre-sentencing Cases: Cases Tried Based on Blakely-ized Indictments........... 44

C. Cases on Appeal 45

1............ Standards of Review........... 46

a............ Reasonableness Review........... 46

b............ Guidelines Sentence Not Necessarily AReasonable@........... 47

c............ Underlying Standards of Review for Issues of Guideline Interpretation, Application, and Procedure........... 48

2............ Plain Error: Pre-Booker Sentencings Where No Apprendi/Blakely Objection Raised........... 49

a. Group One (3d, 4th, 6th, and 9th Cirs.): Prejudice Presumed from Application of Unconstitutionally Enhanced (or Mandatory) Guideline Range and Error Must Be Corrected Through

Remand ...... 50

TABLE OF CONTENTS CONTINUED

PAGE

b............ Group Two (1st, 5th, 10th and 11th Cirs.): Burden of Proof on Defendant to Show Prejudice or Miscarriage of Justice........... 51

c. Group Three (2d and 7th Cirs.): Presumptive Remand for Limited Purpose of Permitting District Court to State Whether a Lesser Sentence Would Have Been Imposed and, If So, for

Resentencing 52

3............ Harmless Error: Pre-Booker Sentencings Where Apprendi/Blakely Objection Raised........... 52

4............ Effect of Alternate Sentence on Harmless Error/Plain Error Analysis........... 53

5............ Post-Booker Sentencings........... 54

6............ Supplementing Pending Appeals........... 54

D. Resentencing After Remand in Light of Booker: The Presumption of

Vindictiveness 55

E............ Collateral Review: 2255 Petitions........... 56

1............ Teague and retroactivity........... 56

a)........... Booker as the new procedural rule........... 56

b)........... Blakely as the new procedural rule ........... 57

c)........... Apprendi as the new procedural rule ........... 58

2............ Booker as a substantive (instead of a procedural) ruling ........... 59

VI. Other Resources 60

Table of Authorities

I. The Supreme Court Decision

A. Facts and Lower Court Rulings

1. Booker

Booker was charged with possession with intent to distribute at least 50 grams of crack in violation of 21 U.S.C. ' 841(a)(1). The jury convicted after hearing evidence that Booker possessed 92.5 grams of crack. At sentencing, which occurred before the Blakely decision, the district court found by a preponderance of the evidence that Booker possessed an additional 566 grams of crack and that he obstructed justice. Based on these findings, and on Booker=s criminal history, the district court sentenced Booker to 360 months= imprisonment.

Booker=s appeal was decided shortly after Blakely was handed down, with the Seventh Circuit holding that the Sixth Amendment prohibited the enhancement of Booker=s sentence above the maximum sentence that could be imposed based solely on the facts reflected in the jury verdict or admitted by Booker. The Supreme Court granted certiorari and consolidated the case with Fanfan.

2. Fanfan

Fanfan was charged with conspiracy to distribute, and to possess with intent to distribute, at least 500 grams of cocaine in violation of 21 U.S.C. ' 846, 841(a)(1), and 841(b)(1)(B)(ii). The jury convicted, specifically finding that the amount of cocaine involved was 500 grams or more. At sentencing, which occurred several days after the Blakely decision, the district court found by a preponderance of the evidence that Fanfan was responsible for 2.5 kilograms of cocaine and 261.6 grams of crack, and that Fanfan had a leadership role in the offenseBfacts that substantially increased Fanfan=s guideline range.

Relying on Blakely, the district court refused to increase Fanfan=s sentence beyond the maximum provided for by the guidelines taking account only of the facts reflected in the jury verdict. The court therefore sentenced Fanfan to 78 months= imprisonment, the top of the guideline range based on a drug quantity of 500 grams of cocaine and no enhancement for role in the offense. A writ of certiorari before judgment issued to the First Circuit Court of Appeals.

B. The Sixth Amendment Ruling

1. Holding

In an opinion authored by Justice Stevens, the Court ruled 5-4 that Blakely=s Sixth Amendment holding applies to the SRA and the federal sentencing guidelines.^[2] In particular, the Court held that:

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.

Booker, 125 S. Ct. at 756.

2. Court=s Reasoning

The SRA and the federal sentencing guidelines are part of a Anew trend in the legislative regulation of sentencing,@ where legislatures identify facts relevant to sentencing and increase the range of sentences possible when such facts are present. The effect of tying the range of possible sentences to facts historically found by judges at sentencing is to change the relative power of judge and jury. Under such systems, the length of a sentence is often driven more by the facts found by a judge at sentencing than by the facts found by the jury at trial. This Anew sentencing regime@ has Aforced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government.@ Booker, 125 S. Ct. at 751-52.

The Court answered this question in Blakely in the context of a state sentencing scheme: a defendant is entitled to a jury determination, beyond a reasonable doubt, of every non-admitted fact (other than a prior conviction) that the law makes essential to his punishmentBregardless of whether that fact is called an Aelement of the offense@ or a Asentencing factor.@ A fact is Aessential to the punishment@ if, absent the finding of the fact, the judge could not impose the given punishment, i.e., would be required to impose a lower sentence.

The Booker Sixth Amendment majority held that the mandatory nature of the federal sentencing guidelines triggers the Sixth Amendment, as was the case with the state sentencing scheme at issue in Blakely. Booker, 125 S. Ct. at 749-50. Because judge-found facts are essential to an enhanced sentence under the guidelines (i.e., absent those facts, a judge is required to sentence within a lower range), those facts must be found by a jury beyond a reasonable doubt unless they are admitted by the defendant. Without discussion, the Booker Court retained the so-called Almendarez-Torres exception to the rule of Apprendi, which permits a sentence-enhancing prior conviction to be found by a judge rather than by the jury.

C. The Remedy Ruling

1. Holding

In an opinion authored by Justice Breyer, the Court ruled 5-4 that the mandatory nature of the federal sentencing guidelines is Aincompatible@ with the Booker Court=s Sixth Amendment holding, and that 18 U.S.C. ' 3553(b)(1) (providing that district courts Ashall@ impose a guidelines sentence) and ' 3742(e) (setting forth standards of appellate review) can and must be severed from the remainder of the SRA and excised.^[3] Booker, 125 S. Ct. at 756-57. This, in the remedy majority=s words, makes the sentencing guidelines Aeffectively advisory@ in all cases. Id. at 757.

The result is that district courts must now impose a sentence that is Asufficient but not greater than necessary@ to achieve the purposes of sentencing set forth in 18 U.S.C. ' 3553(a)(2), after considering:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant [' 3553(a)(1)];

(2) the kinds of sentences available ['3553(a)(3)];

(3) the guidelines and policy statements issued by the Sentencing Commission, including the (now non-mandatory) guideline range ['3553(a)(4) & (a)(5)];

(4) the need to avoid unwarranted sentencing disparity among defendants with similar records that have been found guilty of similar conduct [' 3553(a)(6)]; and

(5) the need to provide restitution to any victim of the offense [' 3553(a)(7)].

Having stricken the SRA=s provision governing the appellate standard of review for sentencing decisions, the remedy majority implies a new standard into the SRA: review for Areasonableness.@ Booker, 125 S. Ct. at 766.

2. Court=s Reasoning

The remedy majority framed the issue as determining B based on the SRA=s language, history and basic purposes B what sentencing scheme Congress would have intended to exist going forward given the Court=s Sixth Amendment ruling. Booker, 125 S. Ct. at 756. The remedy majority first rejected the possibility of the SRA continuing in force with juries finding enhancement facts, concluding that Congress would prefer the total invalidation of the SRA to such a system.

The remedy majority then concluded that severance and excision of the sections of the SRA that make the sentencing guidelines mandatory would both cure the Sixth Amendment problem and be preferred (over total invalidation of the SRA) by Congress. An advisory guidelines system would promote some degree of sentencing uniformity because (1) judges would still be required Atake account of@ and Aconsult@ the guidelines in determining a sentence, and (2) sentences would still be subject to the harmonizing effect of appellate review, with the Sentencing Commission able, in turn, to make guideline amendment decisions based on appellate case law.

Noting that this remedy imperfectly secures the goals of the SRA, the remedy majority notes that Athe ball now lies in Congress= court.@ Id. at 768.

3. Application to Booker and Fanfan

The district court in Booker had enhanced Booker=s sentence based on judicial fact-finding with respect to drug quantity and obstruction of justice, in violation of the Sixth Amendment. In Fanfan, the district court sentenced at the top of the guideline range applicable considering only facts supported by the jury verdict, thereby avoiding a Sixth Amendment violation. Id. at 769.

The remedy majority remanded both cases for resentencing under the remedial interpretation of the SRA announced in Booker. In doing so, the Court noted that both the Sixth Amendment holding and the remedial interpretation of the SRA will be applied Ato all cases on direct review.@ Id. at 768-69 (emphasis added).

II. Determining a Sentence Post-Booker: the Basics of Section 3553(a)

Section 3553(a) is referred to in Booker and much post-Booker case law as containing various Afactors@ B one of which is the guidelines B that must now be considered in determining a sentence. This is a potentially misleading oversimplification. Section 3553(a) is comprised of two distinct parts: the so-called Asentencing mandate@ contained in the prefatory clause of Section 3553(a) and the Afactors@ to be considered in fulfilling that mandate. Because the sentencing mandate contains a limiting principle favorable to defendants, it must be made clear that the sentencing mandate is an overriding principle that limits the sentence a court may impose.

A. The Section 3553(a) Sentencing Mandate: the AParsimony Provision@

The overriding principle and basic mandate of Section 3553(a) requires district courts to impose a sentence Asufficient, but not greater than necessary,@ to comply with the four purposes of sentencing set forth in Section 3553(a)(2):

(a) retribution (to reflect seriousness of the offense, to promote respect for the law, and to provide Ajust punishment@);

(b) deterrence;

(c) incapacitation (Ato protect the public from further crimes@); and

(d) rehabilitation (Ato provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner@).

The sufficient-but-not-greater-than-necessary requirement is often referred to as the Aparsimony provision.@ The Parsimony Provision is not just another Afactor@ to be considered along with the others set forth in Section 3553(a) (discussed below) B it sets an independent limit on the sentence a court may impose. See United States v. Denardi, 892 F.2d 269, 276-77 (3d Cir. 1989) (Becker, J., concurring in part, dissenting in part) (since ' 3553(a) requires sentence to be no greater than necessary to meet 4 purposes of sentencing, imposition of sentence greater than necessary to meet those purposes is reversible, even if within guideline range).

B. The Section 3553(a) Factors to be Considered in Complying With the Sentencing Mandate

In determining the sentence minimally sufficient to comply with the Section 3553(a)(2) purposes of sentencing, the court must consider several factors listed in Section 3553(a). These factors are:

(1) Athe nature and circumstances of the offense and the history and characteristics of the defendant;@

(2) Athe kinds of sentence available;@

(3) the guidelines and policy statements issued by the Sentencing Commission, including the (now non-mandatory) guideline range;

(4) the need to avoid unwarranted sentencing disparity; and

(5) the need to provide restitution where applicable.

18 U.S.C. ' 3553(a)(1), (a)(3), (a)(5)-(7).

Neither the statute itself nor Booker suggests that any one of these factors is to be given greater weight than any other factor. However, it is important to remember that all factors are subservient to Section 3553(a)=s mandate to impose a sentence not greater than necessary to comply with the four purposes of sentencing.

C. The Weight Given to the Guidelines

The first two published district court sentencing opinions after Booker presented two very different views regarding how much weight should be given to advisory guidelines. Judge Cassell of the District of Utah, the day after Booker was decided, ruled that he will continue to give Aconsiderable weight@ or Aheavy weight@ to the sentencing guidelines, deviating from the applicable range only Ain unusual cases for clearly identified and persuasive reasons.@ United States v. Wilson, 350 F. Supp. 2d 910, 912, 925 (D. Utah Jan. 13, 2005). See also United States v. Wilson, 355 F. Supp. 2d 1269 (D. Utah Feb. 2, 2005) (reaffirming position and responding to critics of the first Wilson decision).

In a much better reasoned opinion, Judge Adelman of the Eastern District of Wisconsin disagreed, noting that Wilson is inconsistent with the remedial majority in Booker, which Adirect[s] courts to consider all of the ' 3553(a) factors, many of which the guidelines either reject or ignore.@ United States v. Ranum, 353 F. Supp. 2d 984, 986 (E.D. Wis. Jan. 19, 2005). Judge Adelman reasoned that while courts must Aseriously consider@ the guidelines and give reasons for sentences outside the range, Ain doing so courts should not follow the old >departure= methodology.@ Judge Adelman went on to state,

The guidelines are not binding, and courts need not justify a sentence outside of them by citing factors that take the case outside the Aheartland.@ Rather, courts are free to disagree, in individual cases and in the exercise of discretion, with the actual range proposed by the guidelines, so long as that the ultimate sentence is reasonable and carefully supported by reasons tied to the ' 3553(a) factors.

Id. at 987.

Similarly, in United States v. Issa M. Jaber, __ F. Supp. 2d __, 2005 WL 605787, 2005 U.S. Dist. LEXIS 4028 (D. Mass. Mar. 16, 2005), Judge Gertner of the District of Massachusetts provided an in-depth analysis of why the Wilson approach is wrong Aboth as a matter of law and fact.@ Id. at *4. Judge Gertner explained that Athe Wilson method comes perilously close to the mandatory regime found to be constitutionally infirm in Booker,@ id., and that AWilson overstates the case for deference to the Commission, particularly in individual cases.@ Id. at *5. Judge Gertner=s opinion provides an excellent point-by-point counter argument to Wilson. See also United States v. Myers, 353 F. Supp. 2d 1026 (S.D. Iowa Jan. 26, 2005) (Pratt, J.) (agreeing with Ranum approach and arguing that the Wilson approach is in error because it makes the guidelines, Ain effect, still mandatory@); United States v. West, 2005 WL 180930 (S.D.N.Y. Jan. 27, 2005) (following Ranum); United States v. Ameline, 400 F.3d 646, 655-56 (9th Cir. Feb. 9, 2005) (advisory guideline range is Aonly one of many factors that a sentencing judge must consider in determining an appropriate individualized sentence@), reh=g en banc granted, 401 F.3d 1007 (9^th Cir. 2005).

If a judge does follow the approach of Wilson, defense counsel should object on the ground that such a sentencing practice effectively makes the guidelines as binding as they were before Booker. The Wilson approach therefore violates both the Sixth Amendment and the interpretation of Section 3553 adopted by the remedial majority in Booker. As Justice Scalia explains in his Booker dissent,

Thus, logic compels the conclusion that the sentencing judge, after considering the recited factors (including the guidelines), has full discretion, as full as what he possessed before the Act was passed, to sentence anywhere within the statutory range. If the majority thought otherwise B if it thought the Guidelines not only had to be >considered= (as the amputated statute requires) but had generally to be followed B its opinion would surely say so.

Booker, 125 S. Ct. at 791 (Scalia, J., dissenting). Likewise, if the remedial majority thought the guidelines had to be given Aheavy weight,@ its opinion would have said so. The remedial majority clearly understood that giving any special weight to the guideline range relative to the other Section 3553(a) factors would violate the Sixth Amendment.

In the alternative, defense counsel can argue that since the Aweighted guidelines@ approach in effect makes the guidelines binding (thereby triggering the Sixth Amendment), courts employing this approach may enhance a sentence based only on facts proven to a jury beyond a reasonable doubt or admitted by the defendant.

THE BOTTOM LINE: Courts must now impose a sentence that is minimally sufficient to accomplish certain specified purposes of sentencing, and the guidelines are only the third of five equally important factors to be considered in determining the minimally sufficient sentence.

III. Post-Booker Sentencing Practice

A. The Pre-Sentence Investigation Report and Form-1 Interview with Probation

The Probation Office will continue to produce pre-sentence investigation reports (PSRs) pursuant to Federal Rule of Criminal Procedure 32(d). In light of Booker, defense counsel should seek to have included in the PSR all information relevant to the Section 3553(a) sentencing factors. Although some such information has historically been included pursuant to Rule 32(d)(2), this information is now even more important (and requires more emphasis) as it can more heavily influence the sentence imposed. It is also even more critical that counsel attend all interviews with Probation.

The PSR objection procedure remains the same, and defense counsel should object (if advantageous) to any aspect of the PSR (including failure to include information provided by the defense) that might suggest that the sentencing guidelines carry more weight than the other Section 3553(a) factors.

THE BOTTOM LINE: Have all information relevant to the Section 3553(a) mandate and factors included in the PSR, and make sure to attend all interviews with Probation.

B. The Sentencing Memorandum and ADeparture@ Arguments

Sentencing memoranda should continue to address all guidelines issues and other objections to the PSR, but should emphasize Section 3553(a)=s mandate for a minimally sufficient sentence to achieve the goals of punishment in light of the Section 3553(a) factors, only one of which is the advisory guidelines sentence.

It is important to understand that traditional guidelines departures continue to exist and can be utilized by a court in arriving at the advisory guideline sentence. Therefore, when it is tactically appropriate, defense counsel should still make traditional departure arguments (based on departure case law) in order to influence the advisory guidelines range calculated by the district court.

What is new after Booker is that, even when no traditional departure is available or granted, the district court may still sentence outside the applicable guidelines range in exercising its discretion under Section 3553 B without the need to justify the sentence under a Adeparture@ or Aheartland@ methodology. To avoid confusion, this latter type of extra-range sentence based on statutory factors is best termed a Astatutory@ sentence rather than a Adeparture@ sentence.^[4]

THE BOTTOM LINE: Structure the sentencing memorandum around the Section 3553(a) mandate and factors, keeping in mind that you may argue for a traditional guidelines departure when the facts and departure law are favorable, and may also argue for a statutory sentence (below the guideline range) pursuant to the Section 3553(a) mandate and factors.

C. The Sentencing Hearing

Post-Booker sentencing hearings should be broader in scope than sentencing hearings under the mandatory guidelines. The district court must now consider the Section 3553(a) mandate and factors in arriving at a sentence, and in addition must still resolve objections to the PSR, rule on any departure motions under the guidelines, and determine the advisory guideline range. All of the procedural requirements of Rule 32(i) remain in effect.

1. The ' 3553(a) statutory factors

The new importance of the Section 3553(a) factors relative to the guidelines means that some evidence and argument that may have previously had only a small potential impact on the sentence (or was not enough to support a departure) now become centrally important. Also, if defense counsel decides to make a traditional departure argument and it is rejected by the court in determining the advisory guideline sentence, counsel should remember that the circumstances underlying the departure motion can still be used in the Section 3553(a) analysis to argue for the sentence desired.

By force of habit, many judges post-Booker will proceed by first determining the advisory guidelines range (including consideration of traditional departure grounds) and only then considering the broader sentencing mandate and factors of Section 3553(a). Nothing requires a judge to proceed in this potentially prejudicial fashion. The danger in this approach is that the guidelines might be viewed not just as the first sentencing factor considered but rather as the substantive starting point in the sentencing analysis. When this is not desired, defense counsel should try to focus the court on the most helpful Section 3553(a) factors, which might include asking the court to start its sentencing analysis elsewhere than with the guidelines.

2. The ' 3553(c) Statement of Reasons

Under Section 3553(c), the district court must still state the reasons for the sentence imposed. See United States v. Webb, __ F.3d __, 2005 WL 763367 n.8 (6^th Cir. April 6, 2005) (citing ' 3553(c) and stating, APost-Booker we continue to expect district judges to provide reasoned explanation for their sentencing decisions in order to facilitate appellate review.@). In the case of a sentence outside the guideline range, ' 3553(c)(2) requires that reasons must be stated with specificity and in writing in the judgment and commitment order. See United States v. Crosby, 397 F.3d 103, 116 (2^nd Cir. 2005) (observing that Booker left ' 3553(c) Aunimpaired@).^[5]

Because this requirement survives Booker, it is important for defense counsel in advocating for a sentence below the guideline range to prepare a clear written statement of reasons for the sentence that the judge can adopt and include in the judgement and commitment order. As long as the judge considers all the factors mentioned above and includes this written statement of reasons, sentences below the guideline range should meet the new test for Areasonableness@ on appellate review.

THE BOTTOM LINE: Attempt to organize the sentencing hearing around the Section 3553(a) mandate and factors most beneficial to the defense, resisting any default to the guidelines as the starting point of the sentencing analysis. Make sure the sentence imposed is supported by a statement of reasons grounded in the Section 3553(a) mandate and factors.

IV. Sentencing Arguments Available in Light of Booker

From an advocacy perspective, Booker returns sentencing to the pre-guidelines days in which there were no limits on what could be considered (and could actually have an impact) at sentencing. Defense counsel should make any and all arguments that will humanize the defendant, mitigate guilt, and encourage the judge to impose the lowest possible sentence. The only difference between pre-guidelines sentencing and post-Booker sentencing is that judges now have a longer list of factors (only one of which is the advisory guideline range) that they must Aconsider@ before imposing a sentence that is Asufficient but not greater than necessary@ to achieve the purposes of sentencing set forth in 18 U.S.C. ' 3553(a)(2). For this reason, and so as to protect favorable sentences from reversal for Aunreasonableness@ on appeal, defense counsel should couch sentencing arguments explicitly in terms of the Section 3553(a) factors and in relation to the purposes of sentencing.

What follows are several arguments, in addition to the basic factual arguments to be made under the Section 3553(a) mandate and factors, that may be pursued at sentencing.

A. Section 3582 Limits on Sentences of Imprisonment

Under 18 U.S.C. ' 3582, imposition of a term of imprisonment is subject to the following limitation: in determining whether and to what extent imprisonment is appropriate based on the Section 3553(a) factors, the judge is required to Arecogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation@ (emphasis added). Thus, to the extent that the defense has a good argument that a defendant is in need of rehabilitation, whether educational, vocational or medical, this separate statutory provision provides a strong argument for a lower or non-custodial sentence.

THE BOTTOM LINE: Rehabilitative arguments now serve as an independent basis for avoiding a sentence of imprisonment.

B. The Use of Information Under Section 3661

Under 18 U.S.C. ' 3661, Ano limitation shall be placed on the information concerning the background, character, and conduct of [the defendant] which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence@ (emphasis added). This statutory language certainly overrides the (now-advisory) policy statements in Part H of the sentencing guidelines, which list as Anot ordinarily relevant@ to sentencing a variety of factors such as the defendant=s age, educational and vocational skills, mental and emotional conditions, drug or alcohol dependence, and lack of guidance as a youth. See U.S.S.G. ' 5H1. See also United States v. Nellum, 2005 WL 300073, 2005 U.S. Dist. LEXIS 1568 (N.D. Ind. Feb. 3, 2005) (Simon, J.) (taking into account fact that defendant, who was 57 at sentencing, would upon his release from prison have a very low likelihood of recidivism since recidivism reduces with age; citing Report of the U.S. Sentencing Commission, Measuring Recidivism: the Criminal History Computation of the Federal Sentencing Guidelines, May 2004); United States v. Naylor, F. Supp. 2d , 2005 WL 525409, *2, 2005 U.S. Dist. LEXIS 3418 (W.D. Va. Mar. 7, 2005) (Jones, J.) (concluding that sentence below career offender guideline range was reasonable in part because of defendant=s youth when he committed his predicate offenses B he was 17 B and noting that in Roper v. Simmons, 125 S. Ct. 1183, 1194-96 (2005), the Supreme Court found significant differences in moral responsibility for crime between adults and juveniles).

THE BOTTOM LINE: Defendant characteristics that were Anot relevant@ or Anot ordinarily relevant@ under the guidelines may now be considered in fashioning the sentence.

C. Due process (ex post facto) argument for all offenses committed pre-Booker: courts may sentence anywhere below, but not above, the top of the guidelines range taking account only of jury-found or admitted facts.

In all cases involving offenses committed before the date Booker was decided (January 12, 2005), ex post facto principles inherent in the Due Process Clause, taken together with Booker=s Sixth Amendment ruling, should bar courts from imposing a sentence any greater than the ABlakely-ized@ guideline range B the range as calculated only on the basis of facts proven to the jury beyond a reasonable doubt or admitted by the defendant.

This argument proceeds in two distinct steps: The first step is the due process and ex post facto argument that any increase in the sentencing range cannot be applied retroactively. This first step, when taken alone, establishes that the top of the pre-Booker guideline range (arrived at through judicial fact-finding) is the maximum sentence that can be imposed for pre-Booker offenses. The second step is to apply Booker=s Sixth Amendment ruling to the calculation of that mandatory guideline range. This step establishes that the sentence can be no higher than the range as calculated based on facts proven to the jury or admitted by the defendant. Thus, the first step sets what can be called a Adue process/ex post facto ceiling@ for the sentence, and the second step sets a lower, ASixth Amendment ceiling@ for the sentence based on Booker.

1. Step One: Applying principles of due process and ex post facto

a. Ex post facto principles are inherent in the Due Process Clause.

Although the Ex Post Facto Clause of the Constitution, by its terms, applies only to acts by the legislature and not the judiciary, the Supreme Court has made clear Athat limitations on ex post facto judicial decision-making are inherent in the notion of due process.@ Rogers v. Tennessee, 532 U.S. 451, 456 (2001); U.S. Const. art. I, ' 9, cl. 3. As the Court explained in Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964), AIf a . . . legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that [the Court] is barred by the Due Process Clause from achieving precisely the same result by judicial construction.@ Id. at 353-54.^[6]

The Due Process Clause imposes a limitation on ex post facto judicial construction because it contains the basic principle of Afair warning.@ Rogers, 532 U.S. at 457. ADeprivation of the right to fair warning, . . . can result from . . . an unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face.@ Id. (citing Bouie, 378 U.S. at 352). Thus, the Court held that

if a judicial construction of a criminal statute is >unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,= [the construction] must not be given retroactive effect.

Rogers, 532 U.S. at 457 (quoting Bouie, 378 U.S. at 354).^[7]

b. The Booker remedy of advisory guidelines raises due process/ex post facto concerns.

These due process and ex post facto principles come into play here because the remedial majority in Booker, through its new interpretation of the SRA, effectively raised the maximum penalty that may be imposed for federal crimes by eliminating the mandatory nature of the guidelines. As Booker makes clear, under the mandatory federal guideline system that was in effect before Booker, the Astatutory maximum@ sentence was the top of the applicable guideline range. 125 S. Ct. at 749 (quoting Blakely, 124 S. Ct. at 2537).

Moreover, it should be noted that long before Booker, every circuit recognized that because of the mandatory nature of the guidelines, any amendment that would raise a defendant=s guideline range could not be applied to conduct occurring before the amendment took effect without violating ex post facto principles.^[8] These decisions were based on the Supreme Court=s decision in Miller v. Florida, 482 U.S. 423 (1987), which held that retroactive application of Florida=s revised sentencing guidelines violated the Ex Post Facto Clause. As the Court explained, ex post facto concerns are implicated by A>[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.=@ Id. at 429 (quoting Calder v. Bull, 3 U.S. 386, 390 (1798)).

The remedial majority in Booker, by excising the provision that had made the guidelines mandatory (18 U.S.C. ' 3553(b)(1)), raised the maximum from the top of the guideline range to the maximum allowed under the statute defining the offense. This judicial interpretation of the SRA expands the criminal penalty for all federal crimes, and cannot be applied retroactively to the detriment of defendants in cases involving crimes committed before Booker.

Like the judicial construction at issue in Bouie, this construction is Aclearly at odds with the statute=s plain language and had no support in prior [Court] decisions.@ Rogers, 532 U.S. at 458. Specifically, the Booker Court=s remedial interpretation of Section 3553 meets the Rogers two-part test for non-retroactivity because it was (1) Aunexpected,@ and (2) Aindefensible by reference to the law which had been expressed prior to the conduct in issue.@ Id. at 457.^[9]

1) Unexpected: The test for whether Booker was Aunexpected@ focuses on the remedy decision (Justice Breyer=s opinion), not on the Sixth Amendment holding (Justice Stevens= opinion). It is Justice Breyer=s remedy opinion that contains the judicial construction of the SRA at issue (striking the mandatory aspect of the guidelines and thereby raising the maximum sentence), and this construction was certainly Aunexpected.@ Indeed, it is directly contrary to the plain language of the stricken Section 3553(b)(1), which stated that Athe court shall impose a sentence@ in accordance with the guidelines. No person reading the SRA could have expected the Court=s advisory guidelines construction. The Supreme Court itself had given the statute exactly the opposite construction in several cases.^[10] See Stinson v. United States, 508 U.S. 36, 42 (1993) (reaffirming Abinding@ nature of guidelines and citing prior cases); Mistretta v. United States, 488 U.S. 361, 391 (1988). The Court=s interpretation in Booker, therefore, was Aunexpected.@

2) Indefensible by reference to prior law: It is equally clear that the remedial majority=s construction of Section 3553 is Aindefensible by reference to the law which had been expressed prior to the conduct in issue.@ The remedial majority, like the state supreme court reversed in Bouie, could not cite to a single prior decision to support its construction of the statute. As noted above, all the Court=s prior cases construing this statute had held that the guidelines were mandatory, and both Booker majorities agreed that the guidelines as written were mandatory up until Booker was decided. Booker, 125 S. Ct. at 750, 759. Moreover, as Justice Stevens observes in his dissent, nothing in Booker even suggests that there is Aany constitutional infirmity inherent@ in Section 3553(b)(1). Booker, 125 S. Ct. at 771 (Stevens, J., dissenting). Thus, there was nothing in prior law that the Court could rely upon to support its construction/excision of ' 3553(b)(1), and therefore it was Aindefensible@ by reference to prior law.^[11]

Accordingly, both prongs of the test for non-retroactivity are met, and the Booker remedy cannot be applied to the detriment of a defendant who committed the offense before Booker was decided.

To state the argument in terms of the due process requirement of Anotice,@ before Booker, defendants were on notice by virtue of the plain statutory language and the unanimous case law that the guidelines were binding, and thus, absent aggravating circumstances as defined in the guidelines, the judge could not sentence above the top of the applicable guideline range. Booker unexpectedly struck that binding language, and thereby raised the maximum sentence that could be imposed. As Miller makes clear, Congress could not have made such a change to the guidelines retroactive by virtue of the Ex Post Facto Clause, 482 U.S. at 434-35, and the courts cannot make such a change retroactive by virtue of the Due Process Clause. See United States v. Marks, 430 U.S. 188, 191-92 (1977).^[12]

This first step, taken by itself, establishes a due process/ex post facto ceiling for the sentences for pre-Booker offenses. This ceiling is the top of the guideline range as it would have been calculated before Booker B under the mandatory guideline system with judicial fact-finding.

2. Step Two: Applying Booker=s Sixth Amendment ruling

In some cases, all the facts needed for the guideline calculations will have been admitted or proven to the jury, and thus the second step will not be necessary since it will not provide a lower ceiling. However, where there has been judicial fact-finding, this second step should be applied to set a ASixth Amendment ceiling.@ The second step is analytically separate from the first B determining what sentence can be imposed for offenses committed pre-Booker under the mandatory guidelines that were in effect, taking into account Booker=s Sixth Amendment ruling. In accordance with the Sixth Amendment, under a mandatory guideline system the guideline range can be based only on facts found by the jury or admitted by the defendant. In other words, defendants whose offenses occurred pre-Booker get the benefit of Booker=s Sixth Amendment ruling but avoid any detrimental effect of Booker=s remedy ruling. Defendants need not choose between their constitutional rights; they are entitled to have both their due process and their Sixth Amendment rights respected.

The Supreme Court confirmed the propriety of this approach in Marks v. United States, 430 U.S. 193 (1977). The Court held in Marks that the ex post facto principle inherent in Due Process Clause precludes application of standards expanding criminal liability for obscenity under Miller v. California, 413 U.S. 15 (1973), for offense committed before Miller was decided, but that nonetheless, Aany constitutional principal enunciated in Miller which would serve to benefit petitioners must be applied in their case.@ Id. at 196-97. Thus, when the Court issues a decision that expands criminal liability in one respect, but limits criminal liability on constitutional grounds in another respect, defendants whose conduct preceded the decision are entitled to have the beneficial aspects of the decision apply without the retroactive application of the detrimental aspects.

While it certainly is true that defendants pre-Booker were Aon notice@ that a sentence could be imposed that was higher than the range applicable taking account of only jury-found or admitted facts (since the guidelines called for judicial determination of enhancement facts) that fact does not help the government. The government cannot violate a defendant=s Sixth Amendment rights just by giving notice that these violations will happen. That would be like saying that First Amendment rights can be violated as long as the government gives everyone notice of the censorship to be imposed.

Thus, due process and ex post facto principles, when applied together with Booker=s Sixth Amendment ruling, require that for all offenses committed prior to Booker, the sentence not exceed the Sixth Amendment ceiling B the top of the guideline range as calculated based only on facts proven to a jury or admitted by the defendant.^[13]

3. What=s wrong with Duncan

The Eleventh Circuit rejected the due process argument in United States v. Duncan, 400 F.3d 1297 (11^th Cir. 2005), but the court=s reasoning is flawed because it fails to recognize that in the pre-Booker era, the mandatory guidelines set the maximum sentence the judge could impose, absent aggravating circumstances, and any retroactive change in that maximum would thus violate ex post facto.

The Eleventh Circuit=s reasoning in Duncan is simple: At the time Duncan committed his offense (possession with intent to deliver at least 5 kilograms of cocaine), the statutory maximum sentence was life imprisonment. The guidelines, according to the circuit, Aalso informed Duncan that a judge would engage in fact-finding to determine his sentence and could impose a sentence of up to life imprisonment. Duncan, therefore, had ample warning at the time he committed his crime that life imprisonment was a potential consequence of his actions.@ Id. at 1307. Further on, the court notes that although the guidelines were mandatory, circuit law recognized the U.S. Code as the source of the maximum sentence. Id. at 1308. In effect, the circuit reasons that because the guidelines, although mandatory, permitted upward departures, the top of the guideline range was not really a maximum that was binding on the sentencing court.

This line of reasoning, however, was rejected by the Supreme Court in Booker, when it observed that the availability of a departure under the guidelines does not mean that the judge is Abound only by the statutory maximum.@ Booker, 125 S. Ct. at 750. As the Court explained, AIn most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is bound to impose a sentence within the Guidelines range.@ Id. See also Miller, 482 U.S. at 434 (rejecting state=s arguments that the increase in the presumptive guideline for the offense was not ex post facto because the court could have imposed the same sentence under prior law and revised guidelines Amerely guide and channel@ the judge=s discretion).

The Booker Court=s observation about the binding nature of the guidelines, moreover, was nothing new. As noted above, soon after the guidelines came into effect, the Supreme Court in Mistretta and Stinson held that the guidelines were binding. All the circuits necessarily followed suit, treating the guideline ranges in a typical case as Aadditional minimums and maximums that are superimposed over the minimums and maximums statutorily enacted by Congress.@ United States v. Seacott, 15 F.3d 1380, 1385 (7^th Cir. 1994) (quoting United States v. Bell, 991 F.2d 1445, 1450 (8^th Cir. 1993).

It makes no difference for ex post facto and due process purposes that the guideline range maximum was not called the Astatutory maximum@ until Booker; the guideline maximum was binding nonetheless, and any retroactive increase would violate the ex post facto and due process principle of fair notice. Indeed, as discussed above, for precisely this reason all circuits, including the Eleventh, recognized in the early 1990s that any retroactive increase in the guideline range would be an impermissible ex post facto violation. See United States v. Worthy, 915 F.2d 1514, 1516 n.7 (11^th Cir. 1990). See also cases cited in fn. 8 supra. Although those cases all involved guideline amendments by the Sentencing Commission, the ex post facto and fair notice principles are the same, regardless of whether the increase in the guideline range is brought about by the Supreme Court or a legislative entity.

Duncan relies upon Dobbert v. Florida, 432 U.S. 282 (1977), but for reasons well articulated in Miller v. Florida, 482 U.S. 435 (1987), Dobbert is inapplicable here where there has been a substantive change in the penalty, and not merely a procedural one. In Dobbert, the capital sentencing statute in effect at the time defendant committed several murders was later found unconstitutional on procedural grounds by the state supreme court. By the time of defendant=s sentencing, however, a new statute was in place that met constitutional requirements. Dobbert argued that at the time of the murders there was no death penalty Ain effect,@ and that application of the new statute would violate the Ex Post Facto Clause. The Supreme Court rejected this argument, reasoning that the existence of the original capital sentencing statute put Dobbert on notice of the possibility of the death penalty. Dobbert, 432 U.S. at 297-98. Thus, in Dobbert, the penalty did not change, but the procedure for implementing it did.

In Miller, the Supreme Court held that Dobbert does not apply when there is a substantive change in the penalty and not merely a procedural one. Miller involved an increase in the guideline range under Florida=s revised sentencing guidelines. The Court ruled that retroactive application of the revised guidelines to the detriment of the defendant would violate the Ex Post Facto Clause. Miller, 482 U.S. at 431. The Court distinguished Dobbert, noting that Athe statute on the books at the time Dobbert committed the crimes warned him of the specific punishment Florida prescribed for first-degree murder,@ whereas in Miller, the statute in effect at the time the defendant committed the crime did not warn him of the higher guideline range that would take effect under the revised guidelines. Id.

Likewise, the change brought about by the Booker remedy is a substantive one B it raises the potential punishment in the typical crime from the top of the guideline range to the maximum allowed under the statute of conviction. Miller makes clear that Dobbert does not apply to such a substantive change in the penalty, and that ex post facto principles bar the retroactive application of the penalty increase. Miller also makes clear that ex post facto principles apply to increases in the guidelines, even though judges under the Florida system, as under the federal guidelines, retained some discretion to depart above the range for reasons not adequately considered by the guidelines. Id. at 435.

Duncan, accordingly, was wrongly decided, and ex post facto principles do apply to the substantive penalty increase wrought by the Booker remedy. Under the ex post facto principles inherent in the Due Process Clause, sentences for offenses committed before Booker therefore cannot exceed the top of the guideline range, and under Booker=s Sixth Amendment ruling this guideline range must be calculated based on facts admitted or proven to the jury.

THE BOTTOM LINE: For offenses committed before Booker was decided, there is no mandatory sentencing Afloor@ but there is a mandatory sentencing Aceiling@B the top of the applicable guideline range taking account of only jury-found or admitted facts.

D. Alternative Ex Post Facto Clause Argument^[14]

In addition to the argument above based on the Due Process Clause, it can also be argued that retroactive application of the Booker remedy directly violates the Ex Post Facto Clause, even though this clause applies only to legislative actions. This argument depends on viewing Booker=s unique approach to statutory construction and excision as, in effect, an implied legislative change in the statute. Viewed as a legislative change, the Ex Post Facto Clause applies directly, and it bars any retroactive application of the Booker remedy to the detriment of defendants. This argument has appeal particularly since it is difficult to find any other instance where the Supreme Court has so directly rewritten a congressional statute by striking language that in and of itself was not unconstitutional. Such an action ought to be viewed as legislative in essence, and therefore as being subject to the Ex Post Facto Clause.

The Booker remedy of advisory guidelines can be viewed as an implied legislative change because Booker ruled that this was the remedy Congress would have intended, given Booker=s Sixth Amendment ruling. 125 S. Ct. at 767 (A[W]e have examined the statute in depth to determine Congress=s likely intent in light of today=s holding) (emphasis in original). In effect, the Court read into the SRA a specific savings provision that provided for the excision of '' 3553(b)(1) and 3742(e) in the event the Court applied the Sixth Amendment jury trial requirement to guidelines enhancements. This event occurred with the Booker opinion, and thus, as of the date of that opinion, Congress=s implicit savings clause took effect. Thus viewed as a legislative change, the advisory guidelines cannot, under Miller, 482 U.S. at 431, be applied to the detriment of defendants for offenses occurring before the date of the Booker opinion. Stated differently, legislative actions that the Court rules Congress would have intended must be subject to the same Ex Post Facto Clause limitation as legislation that Congress actually passes.

This Ex Post Facto Clause argument dovetails with the Due Process argument above, and provides an alternative method of arguing for the ex post facto principle in AStep one.@ The best approach is probably to make both arguments. AStep two,@ involving the application of Booker=s Sixth Amendment holding, remains the same, regardless of which argument is accepted for Step one.

THE BOTTOM LINE: The Ex Post Facto Clause applies directly to the Booker remedy of advisory guidelines if this remedy is viewed as a statutory change that Congress intended and effectively imposed.

E. Burden of proof for sentencing enhancements: Beyond a reasonable doubt?

An argument can be made under the doctrine of avoidance of constitutional doubt that sentence enhancements must be proven beyond a reasonable doubt.^[15] The Sentencing Commission (pre-Booker) stated in its commentary to U.S.S.G. ' 6A1.3 that it Abelieves that the use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns . . .@ But as Justice Thomas points out in his dissent in Booker, Athe Court=s holding today corrects this mistaken belief. The Fifth Amendment requires proof beyond a reasonable doubt, not by a preponderance of the evidence, of any fact that increases the sentence beyond what could have been lawfully imposed on the basis of facts found by the jury or admitted by the defendant.@ Booker, 125 S. Ct. at 798 n.6 (Thomas, J., dissenting).

The preponderance standard has no statutory basis, and particularly where the government is attempting to raise the guideline range through acquitted or uncharged conduct, it can be argued that the potential Fifth Amendment concerns are best avoided by requiring proof beyond a reasonable doubt. Cf. Jones v. United States, 526 U.S. 227, 229 (1999) (interpreting federal car jacking statute Ain light of the rule that any interpretive uncertainty should be resolved to avoid serious questions about the statute=s constitutionality@).

The Ninth Circuit, while noting that the burden of proving any fact necessary to determine the base offense level or any enhancement rests squarely on the government, and that under certain circumstances that burden may be by clear and convincing evidence or even by proof beyond a reasonable doubt, declined to decide whether Booker affects the standard of proof. United States v. Ameline, 400 F.3d 646, 656 n.7 (9^th Cir. 2005) reh=g en banc granted, 401 F.3d 1007 (9^th Cir. 2005). The Fifth Circuit has ruled that proof by a preponderance of the evidence is sufficient. United States v. Mares, __ F.3d __, 2005 WL 503715, *7 (5^th Cir. Mar. 4, 2005). Several district courts, however, have ruled that since there is nothing in Booker to prohibit district courts from applying a higher burden of proof than the preponderance standard, they are free to require proof beyond a reasonable doubt.^[16] See, e.g., United States v. West, 2005 WL 180930 (S.D.N.Y. Jan. 27, 2005) (Sweet, J.); United States v. Huerta-Rodriguez, 355 F. Supp. 2d 1019, 1028 (D. Neb. Feb. 1, 2005) (Bataillon, J.). See also United States v. Gray, __ F. Supp. 2d __, 2005 WL 613645 (S.D.W.Va. Mar. 17, 2005) (Goodwin, J.) (ruling that court will calculate guideline range based first on preponderance standard, and then compare it with range based on reasonable doubt standard so as to weigh reliability of initial guideline range).

THE BOTTOM LINE: There is nothing in Booker that compels a preponderance standard of proof for enhancement facts in the advisory guideline calculation, and it can be argued that the beyond-a-reasonable-doubt-standard is appropriate, particularly for substantial enhancements or those based on uncharged or acquitted conduct.

F. Applying Crawford=s Confrontation Clause ruling at sentencing

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held under the Sixth Amendment Confrontation Clause that testimonial out-of-court statements (such as statements to police or under oath), regardless of their reliability, are not admissible at trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. at 59. The Court has not, however, ruled expressly on when, if at all, the right of confrontation applies at sentencing. The question, then, is to what extent the Crawford ruling might apply at sentencing in light of Booker?

Jeffrey Fisher, who argued (and won) both Crawford and Blakely, suggests that Crawford may apply, depending on the importance of the fact at issue to the sentence. As Fisher explained in a blog posting, A[I]f the sentencing judge thinks that the fact at issue, if found, will cause him to impose a higher sentence under a combination of the guidelines and the factors in 18 U.S.C. ' 3553(a), then there is a strong argument that Crawford ought to apply at least as a discretionary matter.@^[17] See United States v. Gray, __ F. Supp. 2d __, 2005 WL 613645, *9-*10 (S.D.W.Va. March 17, 2005) (Goodwin, J.) (ruling that sentencing judges are not required to apply Crawford at sentencing, but strongly encouraging use of witness testimony and cross-examination in order to resolve factual disputes at sentencing because of Atruth seeking function of the Confrontation Clause@).

Taking the analysis one step further, Fisher says, AIndeed, if the judge thinks that a fact at issue will require him, as a matter of statutory reasonableness on appellate review, to impose a higher sentence, then Crawford may well apply as a matter of right.@ Fisher also suggests that apart from the Sixth Amendment right, the due process right to a sentence based upon reliable evidence may require that the right of confrontation be accorded defendants at sentencing for any testimonial evidence that could effect the length of the sentence. Crawford=s description of the importance of cross-examination in ensuring reliability would strongly support this analysis. In view of the concern for avoiding constitutional doubt, then, Crawford supports extending the right of confrontation to sentencing proceedings, particularly with regard to factual issues that may significantly affect the length of the sentence.

THE BOTTOM LINE: Crawford and the doctrine of constitutional doubt support granting the right of confrontation at sentencing.

G. Can district courts require that any facts increasing the advisory guideline range be alleged in the indictment and proved to the jury?

There is nothing in Booker that requires, under the now-advisory guideline system, that facts increasing the guideline range be alleged in the indictment or proved to a jury beyond a reasonable doubt. Nonetheless, at least two district court judges have indicated that they will not consider facts at sentencing that were not charged and proved to the jury. See United States v. Huerta-Rodriguez, 355 F. Supp. 2d 1019, 1027 (D. Neb. Feb. 1, 2005) (Bataillon, J.); United States v. Ochoa-Suarez, 2005 WL 287400, 2005 U.S. Dist. LEXIS 1667 (S.D.N.Y. Feb. 7, 2005) (Keenan, J.). The Third Circuit has taken the same view in a not-precedential opinion. See United States v. Lorenzo M. King, No. 03-4715, p. 4 n.2 (Apr. 14, 2005). The Second Circuit, however, has preemptively addressed this issue, stating that Aa sentencing judge would . . . violate section 3553(a) by limiting consideration of the applicable Guideline range to the facts found by the jury or admitted by the defendant, instead of considering the applicable Guideline range, as required by subsection 3553(a)(4), based on the facts found by the court.@ United States v. Crosby, 397 F.3d 103, 115 (2^nd Cir. 2005).

Reconciling the view of the district courts and the Third Circuit mentioned above with the remedy majority in Booker presents a challenge; Breyer, writing for the remedy majority, rejects any jury fact-finding requirement for sentencing facts, saying that such an approach Awould destroy the system.@ 125 S. Ct. at 760 (listing five reasons for rejecting this approach). However, to the extent that pre-Booker offenses are involved, the due process and ex post facto argument presented above supports requiring the jury fact-finding approach.

Counsel may be concerned that a sentencing court that refuses to consider facts not charged or proven to the jury might well have its sentence reversed on appeal on the ground that its sentencing procedure was legally erroneous, and therefore necessarily Aunreasonable.@ In such cases, counsel could urge the district court to protect the exact same sentence from reversal simply by considering all the sentencing facts under one of the burdens of proof discussed above, and then imposing what it finds to be a reasonable sentence based on consideration of the statutory factors listed in Section 3553(a). As long as the judge follows this legally unassailable approach and gives reasons for the sentence, there should be little risk of reversal.

THE BOTTOM LINE: For post-Booker offenses, it is unclear whether a district court may categorically refuse to consider facts not charged or found by a jury in the sentencing determination; the safer approach is to encourage a court so inclined to reach a statutory sentence by giving little weight to such facts.

H. Arguments against sentences exceeding the guideline range

In addition to the due process and burden of proof arguments above, when the increase in the guideline range is pursuant to an upward departure, the defense can also oppose this increase by arguing that any such sentence is Aunreasonable@ if the court does not follow the Aratcheting@ or Aanalogic reasoning@ approaches required under pre-Booker case law. See United States v. Hickman, 991 F.2d 1110, 1114 (3d Cir. 1993); United States v. Baird, 109 F.3d 856, 872 (3d Cir.), cert. denied, 522 U.S. 898 (1997). Although the court under Booker may have discretion to sentence all the way up to the statutory maximum, the requirement that the court Aconsider@ the guidelines would seem to require that the court still apply the ratcheting or analogic reasoning approaches and consider each offense level increase before moving up to the next higher one.

THE BOTTOM LINE: By analogy to upward departure practice under the guidelines, district courts should be procedurally constrained in their ability to impose a statutory sentence above the guideline range.

I. Avoiding unwarranted disparity: career offender, crack, illegal reentry

Although the guidelines were intended to reduce unwarranted sentencing disparity across the country between similarly situated defendants, there are some guidelines which, as the Sentencing Commission itself has noted, increase disparity. In such cases, a powerful argument can be made that consideration of the sentencing factor in 3553(a)(6) (Athe need to avoid unwarranted sentencing disparity@), strongly supports imposing a sentence below the guideline range.^[18] Following are three situations in which this argument can be made:

1. Crack Cocaine

The 1 to 100 quantity ratio of cocaine base to cocaine powder under the guidelines, according to the Sentencing Commission, leads to a substantial unwarranted disparity in sentencing that has increased the gap in average sentences between racial groups. This disparity is unwarranted because, as the Commission has reported, Athe harms associated with crack cocaine do not justify its substantially harsher treatment compared to powder cocaine.@ U.S. Sentencing Commission, Fifteen Years of Guidelines Sentencing, pp. xv-xvi (Nov. 2004).^[19] These findings thus support sentencing defendants convicted of trafficking in crack cocaine under the lower guidelines for cocaine powder. (Of course, to the extent that the sentence is controlled by the equally disproportionate mandatory minimum sentences for crack cocaine under 21 U.S.C. ' 841(b), this argument regarding the guideline range may be of limited help.)

Several district courts have applied this sentencing disparity argument in cases involving crack cocaine to conclude that a sentence below the guideline range was reasonable. See United States v. John Smith, __ F. Supp. 2d __ , 2005 WL 549057, *6-*10 (E.D. Wis. Mar. 3, 2005) (Adelman, J.) (concluding after in-depth review of case law and commentary that 1 to 100 ratio lacks justification and creates unwarranted sentencing disparity); Simon v. United States, __ F. Supp. 2d __, 2005 WL 711916, 2005 U.S. Dist LEXIS 4551 (E.D.N.Y. Mar. 17, 2005) (Sifton, J.) (imposing sentence below guideline range for crack cocaine based primarily on disparity between crack and powder); United States v. Harris, 2005 U.S. Dist. LEXIS 3958 (D.D.C. Mar. 7, 2005) (Robertson, J.) (Sentencing Commission=s findings regarding crack/powder disparity Aare sound authority@ for conclusion that guideline ranges for crack are Agreater than necessary@).

2. Career Offenders

The career offender provision, U.S.S.G. ' 4B1.1, works a dramatic increase in both the offense level and the criminal history category and is meant to assure a prison term at or near the maximum authorized by statute. Applicable to those convicted of either a crime of violence or a controlled substance offense, this provision is triggered if the defendant has two prior convictions for such crimes. The Commission has found that because of the inclusion of drug trafficking crimes in the criteria for application of the career offender provision, this provision has a disparate impact on minority defendants that is not justified by recidivism rates.

The Commission=s logic is compelling. In its fifteen year study, the Commission states, Aalthough Black offenders constituted just 26 percent of the offenders sentenced under the guidelines in 2000, they were 58 percent of the offenders subject to the severe penalties required by the career offender guideline. Most of these offenders were subject to the guideline because of the inclusion of drug trafficking crimes in the criteria qualifying offenders for the guideline.@ Id. at 133. The Commission goes on to note studies which have suggested that minorities have a higher risk of conviction for drug offenses because of the Arelative ease of detecting and prosecuting offenses that take place in open-air drug markets, which are most often found in impoverished minority neighborhoods.@ Id. at 134. The Commission=s analysis of recidivism rates for drug trafficking offenders sentenced as career offenders, however, Ashows that their rates are much lower than other offenders who are assigned to criminal history category VI,@ and more closely resemble the rates for offenders in the lower criminal history categories in which they would be placed without application of the career offender provision. Id.

The Commission=s study thus provides a Areasonable@ basis for not applying the career offender provision in cases where the defendant (regardless of race) qualifies because one or more of the qualifying convictions are for drug offenses. In such cases, the career offender provision overstates the likelihood of recidivism. Instead, the guidelines as calculated without the career offender provision would provide a more appropriate range and would further the statutory goal of reducing unwarranted sentencing disparity.

3. AFast track@ or Aearly disposition@ programs

Pursuant to the PROTECT Act, the Commission in 2003 issued a policy statement for Aearly disposition programs.@ U.S.S.G. ' 5K3.1. This provision allows for up to a four-level downward departure in districts participating in the early disposition program, which is meant to give defendants sentencing concessions in exchange for a prompt guilty plea and the waiver of procedural rights such as the right to appeal. In cases involving aliens, the defendant also agrees to immediate deportation. The application of this program in some districts but not others obviously creates unwarranted sentencing disparities between similarly situated defendants.

Thus, in districts that do not have such a program, a strong argument can be made that the appropriate guideline range would be the range that would result if the program were in effect there. See United States v. Galvez-Barrios, 355 F. Supp. 2d 958, 963 (E.D. Wis. Feb. 2, 2005) (Adelman, J.) (imposing sentence below guideline range based in part on unwarranted disparity among defendants charged with illegal reentry); United States v. Huerta-Rodriguez, 355 F. Supp. 2d 1019, 1030-31 (D. Neb. Feb 1, 2005) (Bataillon, J.) (imposing sentence below guideline range based in part on the Aregional sentencing disparities that occur in the prosecution and charging of immigration offenses and [on the fact] that in other districts a similar defendant would not be prosecuted for illegal entry, but would be simply deported@).

THE BOTTOM LINE: The 3553(a)(6) factor of avoiding unwarranted disparity now provides a strong basis for not following various guideline provisions, including those applicable to crack cocaine, career offenders, and illegal re-entry.

J. Probationary sentences and split sentences: Zones A, B, C

Since the guidelines are now advisory, the sentencing table and the restrictions on probationary sentences, sentences of home confinement, and split sentences in U.S.S.G. ' 5A, 5B1, and 5C1 are also advisory. Thus, to receive a sentence of probation, the defendant does not have to come within Zones A or B, and to receive a split sentence the defendant does not have to come within Zone C. Defense counsel, accordingly, can argue for a split sentence even for a defendant whom the judge wishes to sentence within Zone D.

THE BOTTOM LINE: The availability of probationary, home confinement, and split sentences no longer turns on where the defendant falls on the sentencing table.

K. Safety valve

Booker does not directly affect the statutory Asafety valve@ provision of 18 U.S.C. ' 3553(f). Thus, in order to qualify for the safety valve, which permits sentencing below the mandatory minimum sentence in drug cases, the defendant will still have to meet the five requirements of this statute.^[20] But as the Department of Justice now agrees, the guideline range that results from application of the safety valve is now advisory. See United States v. Duran, No. 04-CR-396, 2005 WL 395439, *4 (D. Utah Feb.17, 2005) (Cassell, J.).

Section 3553(f), which was not modified by Booker, states that if the court finds that the five safety valve requirements are met, Athe court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence . . . .@ At first glance, one might interpret the word Ashall@ to mean that the guideline range is mandatory in the limited circumstance of the application of the safety valve.

The most coherent way to read the statute in light of Booker, however, is that once the safety valve applies, the guideline range is advisory, just as it is in all other cases. Booker explicitly rejected the government=s invitation to make the guidelines advisory only in cases where otherwise there would be a Sixth Amendment violation. Instead, Booker states, Awe do not see how it is possible to leave the Guidelines as binding in other cases.@ Booker, 125 S. Ct. at 768. As the Court explained, Awe do believe that Congress would not have authorized a mandatory system in some cases and a nonmandatory system in others, given the administrative complexities that such a system would create.@ Id. This language makes clear that the guidelines (as currently construed under Booker) cannot be mandatory under any circumstances.

The statutory language at issue supports this same conclusion. The language in Section 3553(b)(1) which made the guidelines mandatory and which was stricken by Booker, is more specific than the language in section 3553(f). Section 3553(b)(1) stated that Athe court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4)@ (emphasis added). Since Section 3553(f) does not specify that the sentence need be Awithin the [guideline] range,@ it does not provide an independent basis for making the guidelines mandatory when the safety valve applies. Therefore, the phrase Ashall impose a sentence pursuant to the guidelines@ in Section 3553(f) must be interpreted in light of Booker to mean only that the court must consider the guideline range, but the court is not bound by it.

THE BOTTOM LINE: The safety valve continues in effect, but as the DOJ now agrees, the guideline range resulting from the safety valve is advisory in light of Booker.

L. Child sex abuse cases

Likewise, the language in Section 3553(b)(2), which was enacted in 2003 as part of the PROTECT Act and applies specifically to crimes involving children and sexual offenses, must also now be read in light of Booker as requiring only that the sentencing court Aconsider@ the guideline range. Although Booker does not mention this section since it was not at issue there, this section contains the exact same language that made the guidelines mandatory under Section 3553(b)(1) (Athe court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4)@), and it plainly suffers from the exact same Sixth Amendment problems identified by the Sixth Amendment majority in Booker. It must therefore be subject to the same remedy that the Booker remedial majority imposes. Thus, for all offenses, including child and sexual offenses covered by Section 3553(b)(2), the guidelines are Aadvisory.@ See United States v. Sharpley, 399 F.3d 123, 127 n.3 (2d Cir. 2005) (noting that Booker=s reasoning applies equally to ' 3553(b)(2), and that the Court=s failure to excise this section was most likely an Aoversight@).

THE BOTTOM LINE: The guidelines should not be deemed mandatory in child sex abuse cases.

M. The prior conviction exception, Shepard and Almendarez-Torres

Booker, like Apprendi and Blakely, expressly creates an exception from its Sixth Amendment holding for facts of prior conviction, stating, AAny 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.@ Booker, 125 S. Ct. at 756 (emphasis added). But this exception is not consistent with the broad reasoning of these three cases, which would seem to require that any fact increasing the sentence range must be either admitted or proven to the jury. See Apprendi, 530 U.S. at 499-523 (Thomas, J., concurring).

In Shepard v. United States, 125 S. Ct. 1254 (2005), decided after Booker, the Court strongly suggested that the prior conviction exception should be viewed narrowly and that Almendarez-Torres v. United States, 523 U.S. 224 (1998), on which this exception is based, may soon be overturned. Particularly in view of Shepard, defense counsel must be sure to object to any statutory sentencing enhancements based on prior convictions that were not admitted or proven to the jury.^[21]

1. The basic holding of Shepard

Shepard was charged with gun possession. Under the Armed Career Criminal Act (AACCA@ 18 U.S.C. ' 924(e)), a defendant charged with gun possession under 18 U.S.C. ' 922 faces a dramatic sentencing enhancement B from a maximum of 10 years to a minimum of 15 years and a maximum of life B if he or she has three prior convictions for serious drug offenses or violent felonies, including burglary. Shepard held that a prior conviction for non-generic burglary based on a guilty plea can count as a qualifying violent felony only if the charging document, plea agreement, or plea colloquy make clear that the offense conduct actually constituted generic burglary.^[22]

In so holding, Shepard simply extended the Acategorical approach@ of Taylor v. United States, 495 U.S. 575 (1990), to guilty pleas. Taylor held that a prior conviction for burglary must be for generic burglary (which does not include entry into boats or cars). Under the Acategorical approach,@ the court cannot delve into the underlying facts of the conviction, but instead must look only to the statutory elements. The Court created a Anarrow exception,@ however, for cases in which the statutory definition is broader than generic burglary, but the indictment or information and jury instructions show that the defendant was only charged with generic burglary, and the jury necessarily had to find the elements of generic burglary in order to convict.

Shepard, in applying Taylor=s categorical approach to cases tried without a jury, ruled that the closest analog to jury instructions Awould be a bench-trial judge=s formal rulings of law and findings of fact, and in pleaded cases they would be the statement of factual basis for the charge, Fed. R. Crim. P. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.@ Shepard, 125 S. Ct. at 1259-60. The Court emphatically rejected the government=s request to broaden the categorical approach to include documents such as police reports submitted in support of complaints. Id. at 1260.

2. The implications of Shepard for the prior conviction exception

Although the defendant in Shepard did not challenge Almendarez-Torres or the prior conviction exception, parts of Shepard make clear that five Justices would support overturning that decision and eliminating the exception. And until that happens, Shepard also makes clear that Almendarez-Torres should be read very narrowly to apply only to facts established by the record of conviction.

In section III of the opinion, which only commanded a four-justice plurality, Justice Souter explains that the Court=s holding limiting the scope of judicial fact-finding regarding prior convictions is required also by the Arule of reading statutes to avoid serious risks of unconstitutionality.@ 125 S. Ct. at 1263. As Souter explained, judicial fact-finding about a disputed prior conviction Araises the concern underlying Jones [v. United States, 526 U.S. 227, 243 n.6 (1999)] and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury=s finding of any disputed fact essential to increase the ceiling of a potential sentence.@ Id. at 1262. Souter then notes that the dissent charges the Court=s decision Amay portend the extension of Apprendi . . . to proof of prior convictions.@ Id. at 1263 n.5. Souter does nothing to dispel this impression, but instead observes that any risk that a defendant might be prejudiced by proof of prior convictions to the jury could easily be addressed by the defendant waiving the right to have the jury decide that issue.

The fair implication of this plurality opinion is that any judge fact-finding that strays beyond the Afact of prior conviction,@ whether that be facts regarding probationary status, release date from custody, or nature of offense, risks constitutional infirmity. Thus, the Almendarez-Torres exception for facts of prior conviction should be construed very narrowly so as to minimize this risk.

Justice Thomas concurred in the other parts of the opinion but did not join in Part III only because it did not go far enough. Thomas states that Aa majority of the Court now recognizes that Almendarez-Torres was wrongly decided,@ and he would find the ACCA unconstitutional as applied to Shepard because it requires an increase in the sentence based on facts (the prior convictions) not admitted by the defendant or proven to a jury. Shepard, 125 S. Ct. at 1264 (Thomas, J. concurring).

3. Applying Shepard

a. Check the prior offense charging documents and statutes of conviction: In any case in which the defendant faces enhancement for prior convictions under the ACCA or similar statutes, such as illegal re-entry (8 U.S.C. ' 1326(b)), drug trafficking (21 U.S.C. ' 841(b)), three strikes (18 U.S.C. ' 3559), and sexual abuse (18 U.S.C. ' 2241, et seq.; ' 2426), or even the career offender provision of the guidelines USSG ' 4B1.1, defense counsel must check the applicable state or federal statutes to see whether the prior convictions as specified in the charging documents count as predicate felonies under the Acategorical approach.@ If the crime is defined broadly and encompasses conduct that does not meet the definition of Aviolent felony@ or Aserious drug trafficking offense,@ counsel should check the charging document, plea colloquy, and plea agreement (or jury instructions if there was a jury trial) to verify that those documents do not narrow the offense of conviction so that it does qualify. The same is true for statutes written in outline form, defining various types of conduct disjunctively as a certain crime, some of which may not qualify for the enhancement. As long as the documents permitted under Shepard do not narrow the offense, the conviction does not qualify and the enhancement cannot apply. Under Shepard, the government cannot use any other documents, such as police reports, presentence reports or complaints, to show that the convictions do meet the statutory definitions.

b. Move to strike surplusage from indictment: If the government tries to preempt the constitutional challenge to the enhancements by charging the prior convictions in the indictment and proving them to the jury, move to strike the prior convictions as surplusage on the ground that only Congress can add elements to the offenses, and both Congress and the courts have made clear that the prior convictions are only sentencing factors. See United States v. Jackson, 390 U.S. 570, 580 (1968) (courts are not free to impose upon an unwilling defendant a jury fact-finding procedure not authorized by Congress, solely for the purpose of rescuing a statute from the charge of unconstitutionality).

If the motion to strike is unsuccessful, and the case goes to trial, move to bifurcate the trial so that the presentation of evidence and the deliberations regarding the prior convictions take place after the jury determines whether defendant was guilty of the offense. In the alternative, consider Justice Souter=s suggestion: A[A]ny defendant who feels that the risk of prejudice is too high can waive the right to have a jury decide questions about his prior convictions.@ Shepard, 125 S. Ct. at 1263 n.5. But make clear that you are preserving your original objection to the inclusion of this surplusage in the indictment, and presenting this alternative only now that the judge has overruled that objection.

c. Do not admit to prior convictions at guilty plea or any other time: Be sure defendant does not admit to the prior convictions at any point (e.g., in plea agreement, plea or PSI interview), since that would waive the challenge.

If the defendant wishes to plead guilty to the offense and the court insists that the defendant also admit to the prior convictions, object that under the Fifth Amendment the defendant need only plead guilty to the elements of the offense. Under Mitchell v. United States, 526 U.S. 314 (1999), a defendant who pleads guilty retains the Fifth Amendment right to remain silent with regard to sentencing issues. As the Court explained, AThe Government retains the burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self-incrimination privilege.@ Id. at 330. No negative inference, moreover, can be drawn from the defendant=s exercise of this right to remain silent regarding sentencing issues. Id. The exercise of this privilege also should not affect the reduction for acceptance of responsibility under USSG ' 3E1.1, since that section only requires acceptance of responsibility for the Aoffense,@ and neither the guideline nor the commentary suggests the defendant must also admit to prior convictions.

d. At sentencing, argue the unconstitutionality of statutory recidivist enhancements based on Thomas=s concurrence: If a statutory enhancement based on prior convictions does apply, object at sentencing to the constitutionality of this enhancement, whether under ACCA, ' 1326(b) illegal re-entry, ' 841(b) drug trafficking, or ' 2241 sexual abuse. Argue based on Thomas=s concurrences in Shepard and Apprendi that Almendarez-Torres should be overruled, and that the fact of prior conviction should be covered by the rule of Apprendi B prior convictions used to enhance the sentence must be charged in the indictment and proven to the jury beyond a reasonable doubt.^[23] (Remember, this position is consistent with the motion to strike the priors from the indictment as surplusage because the argument is that only Congress, and not the courts, can correct the statute by making the prior convictions elements of the offense.) And in order to keep the issue alive as long as possible, raise this issue on appeal and file a petition for certiorari if necessary.

e. In the alternative, argue that Shepard limits what the court may consider in determining whether the enhancement applies: If the court rejects your constitutional argument against the enhancement, argue that Shepard sharply limits what the court can consider in determining factually whether the statutory enhancement applies. For example, the ACCA requires proof of more than the mere fact of prior convictions; the government must also establish that these prior offenses were Acommitted on occasions different from one another.@ 18 U.S.C. ' 924(e)(1).