Sunday, July 11, 2004

Sample Blakely Motion to Reduce Sentence

For Those Who Think They Can Attack A Sentencing Based on The SCT opinion
in Blakely, here's a sample Memorandum In Aid Of Resentencing out of the
Federal Public Defender's office in DC.

For more information on this evolving drama:


___________________________________________________

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA




UNITED STATES OF AMERICA, )

)

v. ) Crim. No. 02-324-01 (GK)

)

LEE M. AYERS, )

)

Defendant. )

___________________________________ )





DEFENDANT'S MEMORANDUM IN AID OF RESENTENCING



Defendant Lee M. Ayers is scheduled for resentencing before this Court on June 29, 2004, at 4:45 p.m. He will not be present at that time in light of this Court's Order dated June 21, 2004, granting his Motion to Proceed With Resentencing Hearing In Defendant's Voluntary Absence. This memorandum is submitted by counsel for Mr. Ayers to aid the Court in determining the appropriate sentence to be imposed at resentencing, in light of the Supreme Court's recent decision in Blakely v. Washington, No. 02-1632, 2004 WL 1402697 (June 24, 2004), which struck down a state sentencing guidelines scheme under the rule of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). (A copy of the Blakely opinion is attached as Exhibit A.)

On November 26, 2002, Mr. Ayers was convicted after a jury trial of two counts of possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). At his sentencing on April 30, 2003, this Court imposed a total sentence of 53 months in prison followed by three years of supervised release, without specifying a particular sentence on each of the two counts of conviction.

On direct appeal, the Court of Appeals affirmed Ayers's conviction on count one of the indictment but vacated his conviction on count two on the grounds that the two § 922(g)(1) convictions merged because the jury was not instructed, nor did it find, that he separately acquired or stored the two firearms charged in the separate counts, as is required under circuit law to sustain separate convictions for multiple firearms under § 922(g). Accordingly, the Court remanded the case for resentencing on count one.

At Ayers's initial sentencing, his base offense level was 20 under U.S.S.G. § 2K2.1(a)(4)(A). (PSR at ¶ 21) Over objection, the Court increased his offense level by two levels under U.S.S.G. § 2K2.1(b)(4), based upon a finding that the firearm involved in the count of conviction was stolen. (4/30/03 Tr. 2-10; PSR at ¶ 22) (A copy of the sentencing transcript is attached as Exhibit B.) Based upon a total offense level of 22 and a criminal history category of III, the guideline imprisonment range was 51 to 63 months (PSR at ¶ 71; 4/30/03 Tr.. 14), and the Court imposed a sentence of 53 months in prison. (4/30/03 Tr. 15)

Under Blakely, 2004 WL 1402697, at *4-*5, a resentence of 53 months' imprisonment would violate Ayers's Sixth Amendment right to a jury trial because the facts supporting the two-offense level increase for possession of a stolen firearm were neither admitted by the defendant nor found by the jury. The defendant in Blakely pleaded guilty to a State of Washington charge of second-degree kidnaping involving domestic violence and use of a firearm. Id. at *2. Blakely admitted the essential elements of the offense but no other relevant facts. Id. Under state law, he faced a 10-year maximum sentence. Id. However, under the State's sentencing guideline regime, the "standard range" for the offense of second-degree kidnaping with a firearm was 49-53 months. Id. Under the State's sentencing scheme, a judge could impose a sentence above the standard range by finding "substantial and compelling reasons justifying an exceptional sentence." Id. After conducting a lengthy evidentiary hearing and issuing 32 findings of fact, the sentencing court imposed an exceptional sentence of 90 months on the ground that Blakely had acted with "deliberate cruelty," which was an enumerated ground for upward departure in domestic violence cases. Id. at *3.

Relying on its earlier decisions in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Ring v. Arizona, 536 U.S. 584, 592-93 (2002), the Court struck down the sentence on the grounds that the State's sentencing procedure violated Blakely's Sixth Amendment right to trial by jury. The Court rejected the State's argument that there was no Apprendi violation because the relevant "statutory maximum" was not the 53-month maximum of the standard guideline range but, instead, the 10-year maximum for class B felonies, including second-degree kidnaping. Id. at *4. The Court clarified its earlier rulings in Apprendi and Ring as to the relevant statutory maximum for purposes of analyzing an alleged Apprendi violation:

Our precedents make clear, however, that the ‛statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [citations and quotations omitted] In other words, the relevant ‛statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings..



Id. (emphasis in original).



Thus, a sentencing judge exceeds her proper authority when she "inflicts punishment that the jury's verdict alone does not allow" because the jury has not found all the essential facts upon which the sentence must be based. Id. Because the facts admitted in Blakely's guilty plea were insufficient to support the exceptional 90-month sentence imposed after the sentencing judge made additional factual findings, the sentence was invalid under the Sixth Amendment. Id. at *5-*6.

In her dissenting opinion, Justice O'Connor noted that "[u]nder the majority's approach, any fact that increases the upper bound on a judge's sentencing discretion is an element of the offense. Thus, facts that historically have been taken into account by sentencing judges to assess a sentence within a broad range – such as drug quantity, role in the offense, risk of bodily harm – all most now be charged in an indictment and submitted to a jury ... ." Id. at *13. Justice O'Connor found no grounds for distinction between the structure of Washington's sentencing system and the Federal Sentencing Guidelines, and, indeed, acknowledged that "the structural differences that do exist make the Federal Guidelines more vulnerable to attack." Id. at *16. Given the majority's rejection of the "soft constraints" under the State's sentencing scheme, which allowed judges to exercise a substantial amount of discretion by finding one or more aggravating factors justifying an "exceptional sentence," Justice O'Connor indicated that:

This suggests that the hard constraints found throughout chapters 2 and 3 of the Federal Sentencing Guidelines, which require an increase in the sentencing range upon specified factual findings, will meet the same fate. See, e.g., USSG § 2K2.1 (increases in offense level for firearms offenses based on number of firearms involved, whether possession was in connection with another offense, whether the firearm was stolen); § 2B1.1 (increase in offense level for financial crimes based on amount of money involved, number of victims, possession of weapon);

§ 3C1.1 (general increase in offense level for obstruction of justice).



Id. (emphasis added). Thus, Justice O'Connor concluded that "[i]f the Washington scheme does not comport with the Constitution, it is hard to imagine a guideline scheme that would." Id. at *17.

In the instant case, based upon its finding by a preponderance of the evidence that one of the firearms involved in this case was stolen, this Court increased Mr. Ayers's offense level by two levels. (4/30/03 Tr. 10) The fact that the firearm was stolen was not charged in the indictment, reflected in the jury verdict, or admitted by the defendant. Therefore, under the Blakely decision, the two-level enhancement would violate Ayers's Sixth Amendment right to trial by jury. Accordingly, this Court must resentence Ayers without the two-level increase, which would result in a base offense level of 20. Combined with a criminal history category of III, the applicable guideline range should be 41-51 months.

Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER





_____________________________

NEIL H. JAFFEE

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Lee M. Ayers












CERTIFICATE OF SERVICE



I hereby certify that on June 25, 2004, a copy of the foregoing Memorandum In Aid of

Resentencing was served by hand-delivery on Assistant United States Attorney David J. Gorman,

555 Fourth Street, N.W., Room 4231, Washington, D.C. 20530.





_________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender

For more information contact:Judge David Finn


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