I.
INTRODUCTION AND PROCEDURAL BACKGROUND
In the instant appeal, Defendant-Appellant XXX XXX XXX has challenged the constitutionality of the sentence imposed upon him as a result of an allegation that he violated the term of his supervised release (1) by illegally reentering the United States. [CR 26; ER 32]. Mr. XXX filed a motion to dismiss the petition, arguing that the imposition of supervised release was unconstitutional after Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002). The district court denied the motion. Mr. XXX entered a denial to the allegations and after a hearing, the district court found him to be in violation of his release conditions and revoked his supervised release. [RT 36; ER 54]. The district court then imposed a sentence of 24 months, twelve months to run concurrently and twelve months to run consecutively to another sentence he is serving. [RT 39; ER 57]. No supervised release was to follow.
On September 15, 2004, this Court set a schedule under which the parties were to file supplemental briefs on the
application ofUnited States v. Booker, 125 S. Ct. 738 (2005).
II.
SUMMARY OF ARGUMENT
The Supreme Court's decision in Booker contains two primary holdings: first, that the Apprendi line of cases applies to the Sentencing Reform Act ("SRA"), and second, that the remedy for the constitutional defects in the process by which sentences are imposed can be cured by severing two provisions from the SRA, 18 U.S.C. § 3553(b)(1), which made the Sentencing Guidelines mandatory, and 18 U.S.C. § 3742(e), which set forth standards of review on appeals from sentencing decisions under the mandatory regime. In the latter holding, the so-called remedial majority rejected the notion that the constitutional defects in the SRA could be cured by recasting the Guideline system as one in which defendants enjoyed the rights guaranteed by the Apprendi line of cases -- i.e., presentation to the grand jury, proof beyond a reasonable doubt and jury trial -- as contrary to Congressional intent. The remedial majority was not required to strike down the SRA, however, because it contained an alternative sentencing regime set forth in 18 U.S.C. § 3553(a). The remedial majority held that sentencing pursuant to that Congressionally created scheme was both consistent with Congressional intent and the proscription of judicial legislation.
Neither of the two cases addressed in the Booker opinion involved issues concerning the imposition or revocation of supervised release. Even so, Booker is dispositive of Mr. XXX's appeal, and requires that his sentence be reversed. That is so for two reasons. First, the Apprendi line of cases is equally applicable to the supervised release regime because imprisonment for a supervised release violation necessarily requires a finding of a fact not considered by the trial jury: the alleged violation. Second, the remedial majority's holding that super-imposition ofApprendi protections over the SRA is not consistent with Congressional intent is even more compelling in the context of supervised release where the statutory scheme explicitly eschewsApprendi protections such as presentation to a grand jury, proof beyond a reasonable doubt, and right to a jury trial . See 18 U.S.C. § 3583(e)(3) ("the court" makes findings "by a preponderance of the evidence"); Fed. R. Crim. P. 32.1(b)(1) (right to a preliminary hearing, not presentation to a grand jury), (b)(2) (revocation hearing before "the court").
Under the remedial majority's reasoning, section 3583(e)(3) and Rule 32.1(b) must be stricken. And, unlike the situation posed by the alternative processes created by sections 3553(a) and (b), there is no alternative legislation in place to permit revocation hearings to go forward. Because United States v. Jackson, 390 U.S. 570 (1968), prohibits this Court from implementing a new system of its own, section 3583(e)(3) cannot be constitutionally implemented, and must be struck down.
Neither Booker's broad statement that supervised release is constitutional nor the specific issues raised in Mr. XXX XXX's Opening Brief preclude this Court from considering the issues raised in the instant brief. Supervised release revocation was not at issue in Booker, and therefore any dicta on that issue is not binding. See Webster v. Fall, 266 U.S. 507, 512 (1925). Nor is there any prejudice to the government in raising these issues now, because they are purely issues of law. See United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1248 n.4 (9th Cir. 2003).
III.
THE SUPERVISED RELEASE REGIME VIOLATES APPRENDI BECAUSE
THE IMPOSITION OF THE MAXIMUM PENALTY DEPENDS UPON A FACT
NOT FOUND BY THE JURY AND THIS COURT CANNOT CORRECT
THE CONSTITUTIONAL ERROR IN LIGHT OF CONGRESS'S CLEAR INTENT.
A. Supervised Release Cannot Survive Booker and Apprendi Because Imposition of the Maximum Penalty Depends
Upon a Fact Not Found by the Jury.
Booker "reaffirm[ed the Court's] holding in Apprendi: 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." 125 S. Ct. at 756. At the time of Mr. XXX's guilty plea, the facts that he admitted established several maxima: time in prison, amount of any fine, time on supervised release, and amount of the special assessment. But that plea did not establish the maximum period of time that he could serve his supervised release in prison; that determination awaited further factual findings, findings made by a judge, without a jury, under a lower standard of proof and without the benefit of an indictment. In other words, the maximum amount of supervised release to be served in prison is not determined in compliance with Booker and Apprendi.
Supervised release creates a sentencing regime unknown at common law, but that is no impediment to applying Apprendi. Cf.Booker, 125 S. Ct. at 752 (the Apprendi line of cases address "the issue of preserving an ancient guarantee under a new set of circumstances"). (3) Supervised release is largely discretionary, imposed after consideration of the same factors courts consider in imposing the sentence as a whole. See id. at 764-65 (requiring that courts impose sentence under 18 U.S.C. § 3553(a)); 18 U.S.C. §§ 3583(a), (c) (requiring consideration of many of the same factors in imposing supervised release). Upon a revocation of supervised release, the district court is permitted to "require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense," 18 U.S.C. § 3583(e)(3), subject to certain maxima applicable to the various "classes" of felonies. See, e.g., id. (maximum of 5 years for a class A felony, 3 years for a class B felony, etc.). See also 18 U.S.C. § 3583(g) (making revocation mandatory in the case of violation of certain conditions of supervised release). Thus, the maximum term of supervised release to be served in prison is available only upon a finding of the revocation fact, and Bookermakes clear that any such fact is subject to the rule in Apprendi. See 125 S. Ct. at 756.
Apprendi makes clear that the facts that determine the maximum punishment must be established through constitutionally adequate procedures. In federal court, that means grand jury indictment,see United States v. Cotton, 535 U.S. 625, 627 (2002), proof beyond a reasonable doubt, see Booker, 125 S. Ct. at 748 (citing In re Winship, 397 U.S. 358, 364 (1970), (4) and the right to jury trial. See id.
But revocation of supervised release is accompanied by only minimal statutory protections. There is no right to a grand jury indictment. Instead, the defendant in a revocation proceeding is entitled to only a preliminary hearing before a judge. See 18 U.S.C. § 3583(e)(3) (incorporating the Federal Rules of Criminal Procedure); Fed. R. Crim. P. 32.1(b)(1) (right to a preliminary hearing, not presentation to a grand jury). Similarly, there is neither a right to a jury determination nor the right to proof beyond a reasonable doubt. See 18 U.S.C. § 3583(e)(3) ("the court" makes findings "by a preponderance of the evidence"); Fed. R. Crim. P. 32.1(b)(2) (revocation hearing before "the court"). The statutory provisions governing supervised release thus violateApprendi and Booker.
Pre-Apprendi cases sustaining probation violation proceedings in the face of Sixth Amendment challenges, see, e.g., Gagnon v. Scarpelli, 411 U.S. 778 (1973), have no application to supervised release. Probation revocation, like the parole system to whichGagnon likened it, see id. at 782, does not involve imposition of a sentence beyond that authorized by the jury's verdict. When probation is revoked the district court is instructed to impose a sentence "under subchapter A." 18 U.S.C. § 3565(a)(2). See also18 U.S.C. § 3565(b) (revocation under subsection (b), which addresses certain mandatory conditions of probation, requires a sentence "under subchapter A that includes a term of imprisonment"). Subchapter A includes 18 U.S.C. §§ 3551 through 3559, and sets forth, together with the modifications imposed byBooker, the district court's general sentencing power. See generally Booker, 125 S. Ct. at 764-65 (citing 18 U.S.C. § 3553(a)). Thus, probation revocation effectively returns the district court to square one, and permits the court to impose any sentence that it could have imposed on the day of the original sentencing. See generally United States v. Vasquez, 160 F.3d 1237, 1239 (9th Cir. 1998) ("the court [has] discretion to sentence a probation violator to the range of sentences available at the time of the original sentencing"). By definition, that is a sentence authorized by the jury's verdict.
The difference between revocation of probation and supervised two is both stark and constitutionally significant. The difference is that on the day Mr. XXX was sentenced, the district court judge already had the right to give him any sentence that the judge could later give him based on a probation revocation. But supervised release revocation is different: Mr. XXX could not be forced to serve even one day of his supervised release in prison on the day he was originally sentenced; only a factual finding that he violated the conditions of supervised release could justify that. As a result, a supervised release revocation involves imposition of a penalty not authorized by the jury's verdict or the guilty plea,
even though the imposition of a term of supervised release may be. For that reason, supervised release revocation violates Apprendi, even if probation revocation does not.
B. Both the Booker Remedial Majority and Jackson Prevent This Court From "Fixing" Section 3583.
Mr. XXX acknowledges that an Apprendi violation gets him only halfway home; this Court must, as the Booker remedial majority did, consider what, if anything, can be done to remedy the violation. The Booker remedial majority considered three options: recasting the SRA as a system that complied with Apprendi, severing out portions of the SRA, or striking down the SRA. See 125 S. Ct. at 758. In rejecting the dissenters' view that "the Court's constitutional requirement [be] added onto the [SRA]," id. at 759, the Court emphasized that by using the term "the court," Congress "mean[t] 'the judge without the jury,' not 'the judge working together with the jury.'" Id. This meaning is so clear that the Court declined to consider any other meaning, rejecting the canon of avoidance of constitutional doubt. See id. Thus, the remedial majority refused broadly to read the term "the court" potentially to include action by a jury, even though that refusal doomed portions of the SRA.
If anything, that inference is even more clear in the context of supervised release. See 18 U.S.C. § 3583(e)(3) ("the court" makes findings); Fed. R. Crim. P. 32.1(b)(1) (preliminary hearing conducted by a judge, not presentation to a grand jury), (b)(2) (hearing before "the court"). Moreover, Congress's rejection ofBooker's beyond a reasonable doubt standard, see 125 S. Ct. at 748, admits of no ambiguity. Congress explicitly required findings "by a preponderance of the evidence," 18 U.S.C. § 3583(e)(3), and no rule of statutory construction could overcome such explicit language. See Booker, 125 S. Ct. at 759. In light of that lack of ambiguity, the remedial majority permits only one result: "Without some such reinterpretation, ..., this provision of the statute, along with those inextricably connected to it, are constitutionally invalid, and fall outside of Congress' power to enact." Id. Section 3583's supervised release revocation provisions are "outside of Congress' power to enact," and must be struck down.
This Court cannot simply excise the revocation procedures, because what would be "left is [not] fully operative as a law.'"Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). There is no utility in a system that permits the imposition, but not revocation, of supervised release. And this Court cannot fill the gap. See Yu Cong Eng v. Trinidad, 271 U.S. 500, 517-18 (1926) ("it is very clear that amendment may not be substituted for construction, and that a court may not exercise legislative functions to save the law from conflict with constitutional limitation"); United States v. Reese, 92 U.S. 214 (1875) (same). See also United States v. Evans, 333 U.S. 483, 495 (1948) (refusing to supply omitted penalty provision and reasoning that "[t]his is a task outside the bounds of judicial interpretation. It is better for Congress, and more in accord with its function, to revise the statute than for us to guess at the revision it would make. That task it can do with precision. We could do no more than make speculation law.")
The Supreme Court's decision in Jackson confirms this analysis. There, the Court considered Fifth and Sixth Amendment challenges to a sentencing provision that authorized the death penalty only upon a jury's recommendation. The Court held that the provision unconstitutionally burdened the rights to proof beyond a reasonable doubt and to jury trial because it did not authorize imposition of the death penalty upon a plea of guilty or trial to the court. Id. at 581-82. In an effort to salvage the provision, the government proposed a number of interpretations of the statute and cited ad hoc procedures developed by district courts as "cures" for the constitutional problems. Jackson rejected each approach as requiring legislative, not judicial, action. Id. at 572-81.
For example, the government proposed a "construction" of the statute under which "even if the trial judge accepts a guilty
plea or approves a jury waiver, the judge remains free . . . to convene a special jury for the limited purpose of deciding
whether to recommend the death penalty." Id. at 572. The Court rejected the government's creation because it was "not in
fact the scheme that Congress enacted." Id. at 573. Similarly, the Court rejected the government's request that it save the
statute by reading it to make imposition of the death penalty discretionary on the part of the sentencing judge. Id. at 575.
Instead, the Court adhered to its construction of the statute which made the death penalty mandatory upon the jury's
recommendation, id. at 575-76, and explained that "[t]o accept the Government's suggestion that the jury's sentencing role
be treated as merely advisory would return to the judge the ultimate duty that Congress deliberately placed in other
hands." Id. at 576.
Here, Jackson precludes the adoption of similar revisions of section 3583; the courts cannot take away "the [judge]'s ... role [in revocation proceedings]" and they cannot give "to the [jury] the ultimate duty that Congress deliberately placed in other hands." Id. Jackson compels rejection of that approach.
The Court further explained that such judicial "procedure" crafting is "fraught with the gravest difficulties" because it generates a proliferation of questions, leaving defendants "without the guidance that [they] ordinarily find in a body of procedural and evidentiary rules spelled out in advance of trial." Id. at 579-80. The many questions raised by the lower courts' willingness to undertake such "procedure" crafting have no answers because "Congress . . . has addressed itself to none of these questions." Jackson, 390 U.S. at 579.
In sum, the lower courts cannot take sentencing under section 3583 "in a new and uncharted direction, without the compulsion of a legislative mandate and without the benefit of legislative guidance." Id. at 581. The Court "decline[d] to do" so in Jacksonand instead struck down the unconstitutional sentencing provision. Id. Accord Evans, 333 U.S. at 486-87 (rejecting the government's request "to make [the statute] effective by applying . . . one of the possibilities which seems most nearly to accord with the criminal proscription and the terms of the penalizing provision" and refusing to "plug the hole in the statute"). See also In re Cavanaugh, 306 F.3d 726, 731-732 (9th Cir. 2002) ("Congress enacts statutes, not purposes, and courts may not depart from the statutory text because they believe some other arrangement would better serve the legislative goals.").
United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc), is not to the contrary. There, this Court rejected a constitutional challenge to 21 U.S.C. § 841 by concluding that section 841 is sufficiently ambiguous to permit application of the doctrine of constitutional doubt. See id. at 564-68. In reaching that conclusion, Buckland relied solely on the majority's view that sections 841 and 960 do not explicitly state that judges were to determine drug type and quantity by a preponderance of the evidence. See id. at 565 ("[s]ection 841 is most striking for what it does not say"). Buckland found support for its view that the lack of an explicit statement as to burden of proof and allocation between judge and jury was "dispositive," id. at 565, in the Seventh Circuit's decision in United States v. Brough, 243 F.3d 1078 (7th Cir. 2001).
Brough, too, relied upon its views that section 841 "does not say who makes the finding," 243 F.3d at 1079, and that Congress "[left] it to the judiciary to sort out who determines the facts... ." Id. But Brough did concede that "[i]f Congress specified that only judges make the findings required by § 841(b), ... then § 841 would create a constitutional problem." Id.
There is no ambiguity here: section 3583(e) and Rule 32.1 make clear that Congress intended to create a revocation procedure that did not comply with Apprendi. Thus, section 3583(e) and Rule 32.1 create a system that explicitly requires judicial fact-finding, denigrates the grand jury right, and sets forth a preponderance standard. The courts are powerless to reject these Congressional choices. See Jackson, 390 U.S. at 576. In short, not evenBuckland's approach can permit the government and the courts to treat revocation facts as second class elements.
C. Neither Booker Nor the Precise Issue Raised in the Opening Brief Preclude this Court From Considering the
Issues Raised in the Instant Brief.
1. Booker Did Not Resolve Every Supervised Release Issue.
Booker involved two cases -- the other defendant was Fanfan - but both cases were granted review on petitions filed by the Solicitor General. Both raised issues concerning the sentences of imprisonment imposed on the defendants; neither raised issues relative to supervised release or its revocation. Certainly the Solicitor General had no incentive to challenge the imposition of supervised release. The issue raised here was thus neither raised nor decided in Booker. "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon are not to be considered as having been so decided as to constitute precedent." Webster, 266 U.S. at 512. Booker does not control.
2. The Government Will Not Be Prejudiced If This Court Considers The Issue Raised in the Instant Brief.
This Court "may consider an issue if it is 'purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.'" United States v. Cretacci, 62 F.3d 307, 310 (9th Cir. 1995) (citation omitted);disapproved on other grounds, United States v. Sardone, 94 F.3d 1233 (9th Cir. 1996). Accord Hernandez-Valdovinos, 352 F.3d at 1248 n.4. The issue raised herein is purely legal; there are no facts that the government could have adduced below that would change the outcome, see id., and this Court has allowed a response brief in which the government can address the legal issues.
Finally, a constitutional challenge to the statute of "conviction" is a jurisdictional question, see Menna v. New York, 423 U.S. 61, 63 n.2 (1975), and Ex Parte Yarborough, 110 U.S. 651, 654 (1884), and this Court is obligated to consider the district court's jurisdiction to imprison Mr. XXX at any point in the proceedings. See Moe v. United States, 326 F.3d 1065, 1070 (9th Cir. 2003). If section 3583 is struck down, the district lacks that jurisdiction. See Yarborough, 110 U.S. at 654.
IV.
CONCLUSION
Mr. XXX requests that this Court vacate his sentence and dismiss the allegation of a violation of supervised release.
Respectfully submitted,
Dated: February 2, 2005 STEVEN F. HUBACHEK
Federal Defenders of San Diego, Inc.
225 Broadway, Suite 900
San Diego, California 92101-5030
Telephone: (619) 234-8467
Attorneys for Defendant-Appellant
1. Mr. XXX was originally placed on supervised release as a result of a conviction for being a previously deported alien who attempted to enter the United States illegally in violation of Title 8, U.S.C. § 1326(a). (2)
2. Both counts alleged violations of section 1326. [CR 6; ER 1-2]. - - -
3. Justice Stevens powerfully discusses the need to apply these "ancient guarantees" to modern innovations.
The new sentencing practice forced 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 under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones [v. United States, 526 U.S. 227 (1999)] and developed in Apprendiand subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance.
Booker, 125 S. Ct. at 752. Because Booker and Apprendi also apply the Due Process Clause, see Booker, 125 S. Ct. at 748 (citingWinship, 397 U.S. at 364), this Court should searchingly apply both the Fifth and Sixth Amendments to section 3583.
4. Accord Booker, 125 S. Ct. at 798 n.6 ("The Fifth Amendment requires proof beyond a reasonable doubt, not by a preponderance, 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.") (Thomas, J., dissenting).