ARTHUR K

ARTHUR K. WACHTEL, California State Bar No. 84086

170 Columbus Avenue, Suite 100

San Francisco, California 94133

(415) 248-1000

MAITREYA BADAMI, California State Bar No. 173241

2019 Webster Street

San Francisco, CA 94115

(415) 345-9588

Attorneys for Defendant

XXXXXX XXXXXX

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THE UNITED STATES OF AMERICA,

Plaintiff,

XXXXXX XXXXXX,

Defendant.

______________________________/

No. CR 00-000 ABC

Date: May 4, 2005

Time: 9:00 a.m.

Ctrm: Hon. Justin L. Quackenbush

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.............................................................................................................. iii, iv

I. INTRODUCTION..................................................................................................................... 1

A. BACKGROUND AND BRIEF SUMMARY OF THE ISSUES..................................... 2

B. THE COURT SHOULD RULE ON THE CONSTITUTIONAL CLAIMS PRIOR TO THE PRESENTATION OF THE SENTENCING CONSULTANT=S REPORT.................... 4

II. ARGUMENT............................................................................................................................. 5

A. EX POST FACTO CONSIDERATIONS PROHIBIT THE COURT FROM APPLYING THE BOOKER REMEDIAL HOLDING TO FIND ENHANCEMENT FACTS OUTSIDE THOSE INHERENT IN THE JURY=S VERDICT....................................................................... 5

B. THE GUIDELINES, EVEN IF ADVISORY, REQUIRE PROOF BEYOND A REASONABLE DOUBT.......................................................................................................................... 7

(1) The Doctrine of Constitutional Avoidance Requires Use of the Reasonable Doubt Standard............................................................................................................................ 7

(2) Most Guidelines Enhancements Involve Other Criminal Conduct the Use of Which Should Require Proof Beyond a Reasonable Doubt Under the Booker Analysis............... 8

(3) Recent District Court Decisions Provide Compelling Support For a Reasonable Doubt Standard............................................................................................................. 9

(4) The Government=s Evidence In This Case Cannot Prove a Substantial Drug Quantity By The Beyond A Reasonable Doubt Standard.............................................................. 10

C. THE GOVERNMENT=S AREASONABLENESS@ AND PROPORTIONALITY ARGUMENTS ARE MERITLESS........................................................................................................ 11

(1) The Applicable Guidelines Range Must Not Be Considered APresumptively Reasonable@.......................................................................................................................... 11

(2) The Government=s Proportionality Argument Must Be Disregarded..................... 12

D. THE COURT MAY NOT INCREASE XXXXXX= CRIMINAL HISTORY SCORE ON THE BASIS OF INHERENTLY UNRELIABLE INFORMATION..................................... 13

III. CONCLUSION....................................................................................................................... 14

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Bousely v. United States, 523 U.S. 614 (1998).................................................................................... 5

Jones v. United States, 526 U.S. 227 (1999) ................................................................................. 9, 14

In re Winship, 397 U.S. 358 (1970) ....................................................................................... 7, 8, 9, 10

Marks v. United States, 430 U.S. 188 (1977) ...................................................................................... 6

Mitchell v. United States, 526 U.S. 314 (1999) .................................................................................. 8

Shepard v. United States, 2005 U.S. LEXIS 2205 (March 7, 2005) ............................................ 4, 14

United States v. Ameline, 376 F.3d 967 (9th Cir. 2004) ..................................................................... 2

United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005)................................................................... 8

United States v. Booker, 125 S. Ct. 738 (2005)......................................................................... passim

United States v. Buckland, 289 F.3d 558 (9th Cir. 2002)............................................................... 7, 8

United States v. Crosby, 397 F.3d 103 (2nd Cir. 2005).................................................................... 11

United States v. Gunning, __ F.3d __, 2005 WL 2005 .................................................................... 12

United States v. Hermanek, 47 Fed. Appx. 439, 447 (9th Circ. September 16, 2002).................... 10

United States v. Huerta-Rodriguez, 355 F. Supp. 2d 1019 (D.Neb. 2005)........................................ 9

United States v. Newsom, 2005 U.S. App. LEXIS 5233 (7th Cir. Apr. 1, 2005) ............................. 12

United States v. Rubenstein, 2005 U.S. App. LEXIS 5156 (2d Cir. Mar. 31, 2005) ...................... 12

United States v. Siegelbaum, 2005 U.S. Dist. LEXIS 2087 (D.Or. Jan. 18, 2005) ..................... 9, 10

STATE CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000) .................................................................. passim

Blakely v. Washington, 124 S. Ct., 2531 (2004)....................................................................... 3, 5, 10

Bouie v. City of Columbia, 378 U.S. 347 (1964)................................................................................ 6

Clark v. Suarez-Martinez, 125 S. Ct. 716 (2005) ............................................................................ 7, 9

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) ...................................... 6

Zadvydas v. Davis, 533 U.S. 678 (2001) .............................................................................................. 7

FEDERAL STATUTES AND RULES

18 U.S.C. ' 924(e) ........................................................................................................................ 13, 14

18 U.S.C. ' 3553(a)(b)............................................................................................................... 2, 6, 12

18 U.S.C. ' 3742(e)............................................................................................................................... 6

21 U.S.C. ' 841 .................................................................................................................................... 7

Sentencing Reform Act, Pub. L. 98-473, Title II, '' 211-238, 98 Stat. 1987 (1984)..................... 5, 6

U.S.S.G. Manual section 2D1.1........................................................................................................... 6

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amendment V................................................................................................ passim

U.S. Constitution, Amendment VI.............................................................................................. passim

U.S. Constitution, Article 1, Section 9 .................................................................................... 2, 3, 4, 6

OTHER AUTHORITIES

Government=s Sentencing Memorandum................................................................................... 11, 12

Sourcebook of Criminal Justice Statistics Online, Table 6.12 http://www.albany.edu/sourcebook/pdf/t612.pdf 13

ARTHUR K. WACHTEL, California State Bar No. 84086

170 Columbus Avenue, Suite 100

San Francisco, California 94133

(415) 248-1000

MAITREYA BADAMI, California State Bar No. 173241

2019 Webster Street

San Francisco, CA 94115

(415) 345-9588

Attorneys for Defendant

XXXXXX XXXXXX

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THE UNITED STATES OF AMERICA,

Plaintiff,

XXXXXX XXXXXX,

Defendant.

______________________________/

No. CR 00-000 ABC

DEFENDANT XXXXXX

XXXXXX=S SENTENCING MEMORANDUM

Date: May 4, 2005

Time: 9:00 a.m.

Ctrm: Hon. Justin L. Quackenbush

The position taken by the government in its sentencing memorandum filed March 28, 2005 is exceedingly simplistic. It amounts to an assertion that, after the Supreme Court=s decision in Booker,^[1] XXXXXX= sentence under the United States Sentencing Guidelines (hereinafter Athe guidelines@) simply remains the same as it ever was. According to the government, the court has consulted the guidelines and found a sentencing range that is Areasonable.@ Therefore, there is no cause to give the matter any further thought. Not only does such a position fail to acknowledge the significant constitutional issues implicated in this particular case, it flatly ignores even the directives of the Booker remedial majority, which require analysis of the sentencing factors set forth in 18 U.S.C. ' 3553(a). While it is understandable that the government would rather not acknowledge the complexity of the issues before the court, for a wide variety of reasons, the government is absolutely wrong.

In reality, the issues that the court must confront in assessing the proper sentence to impose upon Mr. XXXXXX read like a constitutional hall of fame. In light of the Asea change in the body of sentencing law@^[2] that has occurred in the post-Apprendi^[3] era, the determination of Mr. XXXXXX= sentence under the guidelines implicates numerous of his rights under the Fifth and Sixth Amendments as well as the ex post facto clause of Article I, section 9; therefore, the proper application of the guidelines to Mr. XXXXXX will require a careful, multilayered analysis. The government=s avoidance technique in no way serves to assist the court in that process.

A. BACKGROUND AND BRIEF SUMMARY OF THE ISSUES

Mr. XXXXXX belongs to a somewhat narrow class of defendants at sentencing, given that his offense conduct occurred prior to the Supreme Court=s pronouncements in Apprendi. As such, although the government claimed that Mr. XXXXXX was a participant in a cocaine trafficking conspiracy involving multiple-kilogram quantities, the jury was instructed that it need only find that a Atrace amount@ of cocaine was involved in the alleged transactions. The statute under which XXXXXX was convicted, by its terms, did not reference any drug quantity and limited his term to 20 years= imprisonment. In its original calculation of Mr. XXXXXX= sentence under the then-mandatory sentencing guidelines, the court found that his offense level was 38, arriving at that level by means of its drug quantity calculation (58 kilograms) and a finding that XXXXXX had been armed with a firearm in connection with count one. The court further found that XXXXXX= criminal history score underrepresented his true criminal background. The court therefore departed upward two categories to place XXXXXX at a category IV. Mr. XXXXXX= guidelines range, based on the court=s findings, was 324 to 405 months. The court imposed a sentence of 336 months.

As of the writing of this brief, XXXXXX has served approximately eleven years of the sentence imposed and has yet to serve any of the six year period of supervised release also imposed by the court. The Supreme Court issued its decision in Apprendi during the pendency of XXXXXX= direct appeal. In light of the Apprendi violation, the Ninth Circuit vacated XXXXXX= sentence and remanded for resentencing.^[4] XXXXXX stood ready to be sentenced under Apprendi=s terms, before the Supreme Court=s decision in Booker. The sentencing guidelines were thus fully applicable to his conduct and his offenses of conviction, except as limited by the Apprendi/Blakely^[5] rule. Recognizing that his potential guidelines sentence as so limited was substantially lower than the previously imposed sentence (and might even amount to credit for time served), prior to the issuance of the Booker decision XXXXXX suggested that this court proceed to sentencing. (See letter of August 31, 2004, attached as exhibit A). The court declined to do so (see letter of September 3, 2004, attached as exhibit B.)

It is defendant=s position that, because the sentencing guidelines were mandatory at the time of his offense conduct, the merits majority opinion in Booker requires Sixth Amendment protections to apply to the court=s guidelines calculation in this case. That is, the court=s application of the guidelines to XXXXXX= offense conduct must be circumscribed by the facts that were necessarily found by the jury. The remedial opinion in Booker, if applied to XXXXXX= offenses, either violates the ex post facto clause of Article I, section 9, or the Fifth Amendment=s due process prohibition on the retroactive application of increased penalties to disadvantage a criminal defendant. Accordingly, this court is prohibited from applying a "discretionary" sentence on remand higher than that which he lawfully faced at his original sentencing.

Alternatively, if this court holds that the application of the Booker remedial opinion to XXXXXX= case does not violate the ex post facto prohibition, then Fifth Amendment due process requirements mandate the application of the reasonable doubt standard to all facts which raise XXXXXX= potential sentence above the statutory maximum of 20 years. Given the nature of the evidence presented at XXXXXX= trial concerning drug quantity, the government cannot establish beyond a reasonable doubt that Mr. XXXXXX was responsible for the distribution of any substantial quantity of drugs. Similarly, under a reasonable doubt standard, the government cannot prove the firearm enhancement it alleges with respect to count one.

Finally, under either application of the guidelines, this court=s prior determination of XXXXXX= criminal history category violates the principles set forth in the Supreme Court=s recent decision in Shepard v. United States, 2005 U.S. LEXIS 2205 (March 7, 2005). The court cannot properly base an increase in criminal history score on the inherently unreliable information that was contained in the presentence report prepared by the U.S. Probation department.

B. THE COURT SHOULD RULE ON THE CONSTITUTIONAL CLAIMS PRIOR TO THE PRESENTATION OF THE SENTENCING CONSULTANT=S REPORT.

It is defendant=s position that, if the court rules in his favor on the ex post facto issue, it need not reach the question of which standard of proof to employ in the guidelines calculations. The court=s ruling on that preliminary constitutional issue will also impact the presentation of other issues in the memorandum to be filed by defendant=s court-authorized sentencing consultant, including acceptance of responsibility and post-offense rehabilitation. Alternatively, should Ad Defendant therefore respectfully requests that the court issue its ruling on the ex post facto issue prior to the deadline it has set for the consultant to file his memorandum.

Such a ruling would be essential to counsel=s ability to advise defendant XXXXXX in respect to the issues outlined in the paragraph above.

II.

ARGUMENT

A. EX POST FACTO CONSIDERATIONS PROHIBIT THE COURT FROM APPLYING THE BOOKER REMEDIAL HOLDING TO FIND ENHANCEMENT FACTS OUTSIDE THOSE INHERENT IN THE JURY=S VERDICT.

In Booker, the Supreme Court issued two majority opinions. The first opinion, authored by Justice Stevens, held that the rule articulated in Apprendi and Blakely applies to the federal sentencing guidelines such that the Sixth Amendment jury trial guarantee prevents a judge, in the course of sentencing, from finding facts that expose a defendant to more prison time than can be supported by the jury=s verdict and/or the defendant=s admissions. Booker, 125 S.Ct. at 748 (opinion of Stevens, J.)(hereinafter Amerits majority@ or Amerits opinion@). In the second majority opinion, authored by Justice Breyer, a different majority held that, given the application of Apprendi to the federal sentencing guidelines, the appropriate remedy is to excise the provision of the Sentencing Reform Act^[6] that makes the guidelines mandatory. Booker 125 S.Ct. at 757 (opinion of Breyer, J.)(hereinafter Aremedial opinion@). The remedial opinion further provided that, in imposing sentences, the district court shall continue to consider the applicable guidelines range of imprisonment, per 18 U.S.C. 3553(a)(4) and (5), along with the other goals and objectives that Congress has ordained federal sentences to accomplish, as such are identified in 18 U.S.C. 3553(a). Id.

The Booker remedial majority construed the SRA to have a specific savings provision. Given the merits majority=s holding, the remedial majority set its task as determining Congress= intent in the event that the Supreme Court held that Sixth Amendment protections attached to sentencing enhancements. Per Justice Breyer=s opinion, Awe have examined the statute in depth to determine Congress= likely intent in light of today=s holding.@ 125 S.Ct. at 767-68 (emphasis in original). The construction of a statute by the Supreme Court results in an authoritative statement of Awhat the statute meant before as well as after the decision of the case giving rise to that construction.@ Bousely v. United States, 523 U.S. 614 (1998), citing Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 ‑313 (1994). Therefore, the SRA must be read as if, from its inception, it provided for the severance of '' 3553(b)(1) and 3742(e) in the event the Supreme Court applied the Sixth Amendment=s jury trial entitlement to guideline enhancements.

The contingency (i.e., the Court=s application of the Sixth Amendment to the guidelines) has now occurred with the pronouncement of the Booker merits opinion. However, because the new sentencing law, in which the sentencing guidelines are advisory only, has, by Congressional intent, come into operation after January 12, 2005, the new SRA cannot be imposed on defendants to their disadvantage without violating the ex post facto prohibition of Article I, section 9, cl. 3.

Even if the Booker remedy is viewed as a pure judicial creation, the Fifth Amendment=s due process clause prohibits courts from interpreting a law in such a way as to do indirectly what a legislature may not do under the ex post facto clause. That is, the court may not interpret the law so as to increase the defendant's exposure to punishment beyond that which was authorized when the conduct occurred. Marks v. United States, 430 U.S. 188, 191‑92 (1977), Bouie v. City of Columbia, 378 U.S. 347, 353‑54 (1964). Accordingly, whether viewed as a determination of "legislative intent," Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999), or simply an interpretation of the SRA that permits infliction of a greater punishment than the law permitted when the crime was committed, Booker's remedial holding may not be applied retrospectively to impose a harsher punishment than that authorized by the jury's verdict or facts admitted by the defendant.

As of the time of XXXXXX= offense conduct, therefore, the guidelines were mandatory (because the remedy requiring them to be severed and then applied as advisory was not yet in effect) and the Sixth Amendment required that legislatively mandated fact determinations that affect the duration of his sentence must be proven to a jury beyond a reasonable doubt. Accordingly, the limits upon this court=s fact-finding discretion are necessarily the boundaries as defined by the jury verdicts. Thus, the court is limited to a drug quantity finding of less than 25 grams of cocaine (U.S.S.G. 2D1.1, Base Offense Level 12) and is not permitted to make the firearm enhancement finding.