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.

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

Assuming, arguendo, that the court determines it is permitted to apply the Booker remedial decision in sentencing XXXXXX and may thus enhance his sentence with reference to facts not found by the jury, the court is nonetheless limited in that fact-finding by the strictures of due process. As such, the court must apply the reasonable doubt standard to all sentence-enhancing facts.

Although the Booker remedial majority declined to engraft onto the existing system the Sixth Amendment's jury trial requirement, nothing in the remedial majority's opinion prohibits use of the beyond‑a‑reasonable‑doubt standard, which derives from the Fifth Amendment's due process clause. See In re Winship, 397 U.S. 358, 359 (1970). As Justice Thomas trenchantly observed, Booker's holding Acorrects [the] mistaken belief@ of the Sentencing Commission that Ause of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case.@ Booker, 125 S.Ct. at 186, n.6 (dissenting opn.) (quoting U.S.S.C. ' 6A1.3, comment).

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

It is a cardinal principle of statutory interpretation that, if there is a Aserious doubt@ as to a statute=s constitutionality, the court must Afirst ascertain whether a construction of the statute is fairly possible by which the question may be avoided.@ Zadvydas v. Davis, 533 U.S. 678, 689 (2001)(quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). A[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality.@ United States v. Buckland, 289 F.3d 558, 564 (9^th Cir. 2002)(en banc)(quoting Hooper v. California, 155 U.S. 648, 657 (1895)). Because the sentencing statutes and rules do not set out a standard of proof for guidelines enhancements, this Court need only assess whether the reasonable doubt question is a serious one. If so, the Court is required to apply the doctrine of constitutional avoidance to construe the sentencing statutes to require proof beyond a reasonable doubt as to contested facts. Clark v. Martinez, 2005 WL 50099, at *6 (U.S., Jan. 12, 2005). In Buckland, the en banc Ninth Circuit addressed the effect of Apprendi on the federal narcotics trafficking statute B 21 U.S.C. ' 841. Previously, courts had uniformly interpreted this statute to allow drug quantity to be determined by a judge using a preponderance of the evidence standard. In the wake of Apprendi, the Court reexamined the statute, seeking to avoid a finding that it was unconstitutional. Buckland, 289 F.3d at 564 (A[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is >fairly possible,= we are obligated to construe the statute to avoid such problems.@)(quoting INS v. St. Cyr, 533 U.S. 289, 299-300 (2001)). By similar logic, in light of the Booker merits majority holding, the only way to ensure a constitutionally valid application of the sentencing guidelines is to require that sentence-enhancing facts be found by the reasonable doubt standard.

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

Under the remedial portion of Booker, the reasonable standard should be required. The Court left in place the legislatively established process of probation officer recommendation, the opportunity to object, and factual resolution by the court of criminal acts that would lead to legislative advice to the judge to impose a harsher sentence. The reasonable doubt standard is necessary to protect the liberty interests at risk under these circumstances. As in Winship, the reasonable doubt standard is a necessary concomitant of the presumption of innocence (Winship, 397 U.S. at 363)(reasonable doubt Astandard provides concrete substance for the presumption of innocence@). It also protects the right against self-incrimination, which B with a preponderance standard B would necessarily be burdened by increased punishment where the defendant remains silent.

Virtually all contested specific offense characteristics and upward adjustments involve separate criminal conduct. For example, additional drug transactions, as relevant conduct, are each separate crimes; aggravating factors involving greater harm during robbery, assualts, and sexual offenses are separate crimes; incidents of stealing, computed as additional relevant conduct loss in larcency and fraud cases, are all separate crimes. For each of these facts, the defendant as he stands at sentencing, is both presumptively innocent and has a right against self-incrimination. Mitchell v. United States, 526 U.S. 314 (1999); United States v. Antelope, 395 F.3d 1128 (9^th Cir. 2005) (Fifth Amendment covers any proceeding that could lead to Alonger incarceration@)(citing McKune v. Lile, 536 U.S. 24, 52 (2002)(O=Connor, J., concurring)). The reasonable doubt standard is a necessary safeguard to assure that Alonger incarceration@ does not result from a prisoner=s exercise of self-incrimination rights at sentencing, leading to an unreliable result on a controverted issue by use of a preponderance standard.

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

Judge Bataillon, of the United States District Court for the District of Nebraska, has recently issued a memorandum opinion analyzing the impact of the Apprendi/Booker line of cases specifically on the issue of what burden of proof the sentencing court must apply to find sentence-enhancing facts under the advisory guidelines. United States v. Huerta-Rodriguez, 355 F.Supp.2d 1019 (D.Neb. 2005). The court held that Ain order to comply with due process in determining a reasonable sentence, this court will require that a defendant is afforded procedural protections under the Fifth and Sixth Amendments in connection with any facts on which the government seeks to rely to increase a defendant=s sentence.@ Finding that the line that separates a sentencing enhancement fact from an element of the offense Aremains blurred after Booker,@ the court determined to Aerr on the side of caution in protecting a criminal defendant=s constitutional rights.@ The court noted:

Just as a court should construe a statute to avoid a constitutional infirmity if possible, see Clark v. Suarez-Martinez, 125 S.Ct. 716, 724 (2005), prudence dictates that the court should adopt sentencing procedures that lessen the potential that a sentence will later be found unconstitutional. Requiring that Fifth and Sixth Amendment procedural safeguards be afforded to enhancing facts will achieve this goalBthe court will apply the same standard of proof to the factual showing that would be applied in reviewing the sufficiency of the evidence to support the finding, or in conducting harmless error review on appeal, e.g., whether a reasonable juror could have found the fact beyond a reasonable doubt. [Citations and footnote omitted]. . . .

Whatever the constitutional limitations on the advisory sentencing scheme, the court finds that it can never be Areasonable@ to base any significant increase in a defendant=s sentence on facts that have not been proven beyond a reasonable doubt.

Huerta-Rodriquez, 355 F.Supp.2d at *20, citing Ring v. Arizona, 536 U.S. 584, 592-93 and n.1 (2002); Apprendi, 530 U.S. at 477 (2000); and Jones v. United States, 526 U.S. 227, 243 n.6 (1999).

While not the holding of the case, Judge Panner=s recent decision in United States v. Siegelbaum, 2005 U.S. Dist. LEXIS 2087 (D.Or. Jan. 18, 2005), set forth an analysis of Booker that fully supported the view that the reasonable doubt standard is applicable at least to the guidelines portion of sentencing. As that court noted, Aat least five Justices have said that sentence enhancements are of sufficient importance to warrant application of the reasonable doubt standard in some instances.@ Siegelbaum, Opinion at 5-6. Even if the guidelines are viewed as presumptive, they constitute legislatively defined facts that measurably increase the range of potential punishment. Because Booker only addressed the Sixth Amendment, the Fifth Amendment question of the reasonable doubt standard, which derives from the Due Process Clause, remains under the Guidelines. Winship, 397 U.S. at 363-64. AThe reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error.@ Id. at 363.

Judge Panner recognized the Asecond component to Blakely/Booker@: AFacts used to enhance a sentence, if not admitted, must be proven beyond a reasonable doubt rather than by a preponderance of the evidence.@ Supra at 6. By citing to the Supreme Court cases finding Winship to apply retroactively, Judge Panner noted the critical importance of the high standard of proof where liberty is at stake. Id.

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

As defendant noted in the original sentencing memorandum filed after remand, XXXXXX and his co-defendants challenged the government's interpretations of the drug quantities being discussed in the wiretapped telephone calls, both at trial and on appeal. The government, having failed to seize any substantial amount of cocaine that it could attribute to this alleged conspiracy, relied heavily upon the purportedly expert testimony of FBI Agent Broderick to interpret the meaning of language defendants used in the telephone calls. Due to the ambiguity in the wiretapped telephone calls, Agent Broderick's testimony was replete with opinions about the meanings of particular coded language and numbers. Such opinions cannot be deemed to have established any particular drug quantity beyond a reasonable doubt. In fact, the Ninth Circuit rejected the government=s argument that no reasonable jury, properly instructed under Apprendi, could have had a reasonable doubt that the quantity of cocaine involved in the conspiracy was less than 500 grams. United States v. Hermanek, 47 Fed. Appx. 439, 447 (9^th Circ. September 16, 2002). Given the due process requirement to hold the government to the most elevated standard of proof, the fact that the Ninth Circuit itself questioned the weight of the government=s evidence as to quantity should undermine this court=s confidence in that evidence.

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

The government pays little attention in its memorandum to the impact of Booker on the case at bar. Instead, the government asserts thatBnotwithstanding Booker=s merits opinionB the court may continue to apply a preponderance of the evidence standard in making factual findings which can increase defendant=s offense level and criminal history score under the guidelines. Further, without meaningful analysis, the government simply asserts that Aa sentence within the applicable guideline range would by definition be a sentence that would be deemed >reasonable= under Booker.@ Gov. Sent. Memo. at 6-7. Finally, the government argues that defendant is the unfair beneficiary of an intervening change in sentencing law that did not so benefit his co-defendants. As discussed at length, supra, the government=s position with respect to burden of proof is untenable. Its other two arguments are equally without merit.

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

The government=s assertion that the applicable guidelines range would necessarily be deemed Areasonable@ amounts to an argument that a defendant=s guidelines sentence is presumptively applicable in the post-Booker era. That cannot be so. As the Second Circuit noted, in the first post-Booker appellate case to address the guidelines, the application of a Aper se reasonable@ finding to every sentence that falls within the guidelines range Awould risk being invalidated as contrary to the Supreme Court=s holding in Booker, because they would effectively re-institute mandatory adherence to the Guidelines.@ United States v. Crosby, 397 F.3d 103, 113 (2^nd Cir. 2005), citing Booker, 125 S.Ct. at 794 (Scalia, J., dissenting in part).

In order to meet the mandate of the Booker remedy, this court must calculate the appropriate guidelines range. It must also, however, apply the 3553(a) factors and address any other specific characteristics of the defendant or his offense that might impact the determination of a Areasonable@ sentence under the particular circumstances of this case. Thus, it would be inappropriate for this court simply to review its old factual findings, determine that they were Areasonable@ and impose the same sentence upon XXXXXX as initially was imposed, without a full allocution of the relevant factors discussed in the Booker opinion. See United States v. Gunning, __ F.3d __, 2005 WL 2005 WL 730298 (9th Cir. Mar. 31, 2005)(remanding to the district court for full allocution).

Not only does the Booker merits majority prohibit the application of a Aper se reasonable@ standard for guidelines sentences, dicta in two very recent opinions from other circuits suggests that, in some circumstances, a sentence within guidelines range could be found unreasonable. The Seventh Circuit's decision in United States v. Newsom, 2005 U.S. App. LEXIS 5233(7th Cir. Apr. 1, 2005), does not directly speak to reasonableness, but its concluding comments when remanding a lengthy sentence in a pornography case almost encourages a variance:

The factors outlined in 18 U.S.C. ' 3553(a), which now must directly inform criminal sentencing, reflect the need to take into account factors like the full nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense, and the need to afford adequate deterrence. The district judge may conclude, on remand, that these and the other parts of ' 3553(a) can be satisfied by something less than the 324‑month sentence derived from the Guidelines grid.

Newsom, at *16-*17.

Similarly, the Second Circuit's decision in United States v. Rubenstein did not speak to reasonableness because it reversed and remanded on the basis of a guideline calculation error. Rubenstein, 2005 U.S. App. LEXIS 5156 (2d Cir. Mar. 31, 2005). But Judge Cardamone concurred in an interesting opinion in which he directly spoke to the concept of reasonableness and stated that a guidelines sentence could nonetheless be unreasonable. In his words:

Correct application of the Guidelines is but one factor to be considered under 18 U.S.C. ' 3553 in reviewing reasonableness, and it is entirely possible that a correctly calculated Guidelines sentence might nonetheless be found unreasonable upon consideration of other factors.

Rubenstein at *22 (Cardamone, J., concurring).

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

The government decries the prospect of XXXXXX receiving a lower sentence than originally imposed based on the Aserendipitous happenstance@ that resulted in his sentence being remanded. Gov. Sent. Memo at 7. Again, such a position fails utterly to take into account the significant constitutional issues that resulted in that remand and that still must be addressed in assessing XXXXXX= appropriate sentence. Moreover, the government=s appeal to the court=s concern for proportionality between XXXXXX= post-Booker sentence and that imposed upon his co-defendants= sentences is simply not compelling. The co-defendants were sentenced under an entirely different regime than XXXXXX currently faces. Proportionality need not, and indeed cannot, always be maintained after such significant changes in the law of sentencing.

Moreover, the government=s proportionality argument lacks candor. When the federal courts moved from an indeterminate sentencing scheme to the guidelines= determinate sentencing regime, which dramatically increased penalties in most cases (as witnessed by the more than fourfold increase in the federal prison population in the last 17 years^[7]), the government did not argue that the people being sentenced under the Guidelines were being disproportionately harshly treated, relative to earlier-sentenced offenders. The government is therefore not, perhaps, the best-suited player to call for Aproportionality@ under the unusual facts of this case.

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

In the prior sentencing proceeding, the court agreed with the probation department=s conclusion that defendant=s criminal history score, which placed him in category II under the guidelines, significantly underrepresented his true criminal background. On the basis of a series of police reports relating to state court investigations and charges, this court departed upward two categories and placed defendant in category IV. That finding is now demonstrably improper and should not be repeated at this de novo sentencing.

Just four weeks ago, the Supreme Court issued its opinion in Shepard v. United States, 2005 U.S. LEXIS 2205 (March 7, 2005). In that case, the high court held that, under the Armed Career Criminal Act,^[8] a sentencing court cannot look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted and supported a conviction for a Ageneric@ burglary. In other words, a later court determining the character of the prior conviction by guilty plea for purposes of assessing the ACCA sentencing enhancement is limited to examining the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented.

Although the Shepard holding is not directly applicable to this case, its analysis is highly relevant to the issue of the enhancement of defendant=s criminal history score by reference to police reports. If such reports cannot be relied upon for purposes of imposing the ACCA sentencing enhancement without running afoul of the Supreme Court=s holdings in Jones and Apprendi, they cannot be relied upon to enhance defendant=s criminal history score in this case. If anything, such reports should be even more disfavored in this circumstances. In Shepard, the questioned reports at least concerned actual criminal convictions obtained by the petitioner pursuant to guilty pleas in state court. Here, the government sought (and the court previously imposed) enhancements of XXXXXX= criminal history score on the basis of mere allegations, some of which did not result in convictions of any kind. Such an enhancement has no place within the Supreme Court=s recent Sixth Amendment jurisprudence. Therefore, XXXXXX= criminal history score may not be increased by reference to those unreliable reports and must remain at category II.

III.

CONCLUSION

For the foregoing reasons, defendant XXXXXX respectfully requests that the Court impose a sentence consistent with the highest drug quantity that the jury could have found in its general verdict and that his criminal history score not be enhanced on the basis of unreliable information. In the event thee court rejects defendant=s ex post facto argument, it is requested that this ruling occur prior to the filing of the sentencing consultant=s report. If the court determines to make a new drug quantity calculation, defendant requests that the court require the government to prove drug quantity and any other sentence-enhancing facts beyond a reasonable doubt.

Respectfully submitted this 7^th day of April, 2005.

By: ___________________________ ARTHUR K. WACHTEL

MAITREYA BADAMI

Attorneys for Defendant

XXXXXX XXXXXX

^[1]United States v. Booker, 125 S.Ct. 738 (2005).

^[2]United States v. Ameline, 376 F.3d 967, 973 (9^th Cir. 2004) (reh=g granted, United States v. Ameline, 2005 U.S. App. LEXIS 2033 (9th Cir. Mont., Feb. 9, 2005)).

^[3]Apprendi v. New Jersey, 530 U.S. 466 (2000).

^[4]Defendant has previously submitted, and the government has conceded, that the instant sentencing is de novo. We understand that the court has adopted this position and we will not address the matter further unless invited to do so by the court.

^[5]Blakely v. Washington, 124 S,Ct, 2531 (2004). In Blakely, the Supreme Court expressed this rule in the form of two interconnected principles drawn from its decision in Apprendi: First, in accordance with Apprendi, Aany fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt@ and second, that Astatutory maximum@ for Apprendi purposes Ais the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.@ Blakely, 124 S.Ct. at 2536-37.

^[6]Sentencing Reform Act of 1984 (hereinafter ASRA@), Pub. L. 98-473, Title II, '' 211-238, 98 Stat. 1987 (1984).

^[7]According to the Sourcebook of Criminal Justice Statistics Online, Table 6.12, the total number of people in custody in federal prisons in 1985 was 35,781. In 1990, the number was 58,838 and in 2003, the last year such data was available, it was 161,673. Statistics for 1987 were not provided. (Table available at http://www.albany.edu/sourcebook/pdf/t612.pdf)

^[8] 18 U.S.C. ' 924(e) (hereinafter AACCA@).