Tuesday, July 13, 2004

NACDL Weighs In on Blakley

July 12, 2004

Posted by
Dallas Criminal Lawyer - David Finn

The Honorable Orrin Hatch
United States Senate
Washington, DC 20510

The Honorable Patrick Leahy
United State Senate
Washington, DC 20510

Re: Blakely v. Washington and the Future of the Federal Sentencing Guidelines

Dear Senators Hatch and Leahy:

We are writing on behalf of the National Association of Criminal Defense Lawyers (NACDL) to address the complex questions raised by the Supreme Court's decision in Blakely v. Washington, a case in which the NACDL participated as amicus curiae in support of the petitioner Blakely. The NACDL, a professional bar association with more than 11,000 direct members and thousands more affiliate members, is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime. We commend the Chairman for scheduling this hearing to consider the implications of Blakely for the Federal Sentencing Guidelines, and we offer our assistance as the Committee moves forward in an effort to develop a sentencing system that respects the fundamental constitutional right of jury trial.

Any examination of federal sentencing must start with the Sentencing Reform Act of 1984 (SRA). While the SRA arose from well-intentioned concerns regarding indeterminate sentencing, judges, practitioners, and academics have long questioned the efficacy and fairness of the resulting sentencing system, the Federal Sentencing Guidelines. Reducing "unwarranted sentencing disparity" was the primary purpose for the SRA, and, by this measure, few would describe the Guidelines as an unqualified success. Indeed, their most prominent effect has been a dramatic shift in power from the judiciary to prosecutors. In a prescient decision issued a week prior to Blakely, Chief Judge William G. Young painstakingly describes a criminal justice system in which the focus "has shifted far away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen." United States v. Green, (D. Mass., June 18, 2004) (holding the Federal Sentencing Guidelines unconstitutional).

The need for thorough deliberation.

We agree with Judge Young's characterization - and with like views expressed by the majority in Blakely - and we believe that a careful and comprehensive reevaluation of the entire federal sentencing system is necessary. We note that the ABA Justice Kennedy Commission recently completed its year-long review of issues confronting the state and federal criminal justice systems. Formed to address problems identified by Justice Anthony Kennedy at the association's 2003 annual meeting, the Commission issued a report that was sharply critical of inflexible and wastefully long federal sentences for nonviolent offenders. We recommend that Congress establish a similar commission -- comprised of practitioners, prosecutors, judges and academics -- to study the future of federal sentencing in the wake of Blakely.

One guiding principle for this process must be, as Justice Scalia writes in Blakely, "the need to give intelligible content to the right of jury trial" because "[t]hat right is no procedural formality, but a fundamental reservation of power in our constitutional structure." This means exploring fully the experience of so-called "real-offense" sentencing under the Guidelines and the consequences of such an approach for due process and the right of jury trial. Under the current regime, uncharged allegations and allegations that may have been rejected by a jury are relied upon to increase significantly the defendant's sentence without the basic procedural protections of a trial. Without any warning in the indictment or at the time of plea, evidence that flouts basic rules designed to ensure the reliability of fact-finding may add years or decades to a prison sentence if it seems more likely accurate than not. As Judge Young explains, the cornerstone of this so-called! "real offense" sentencing system is "relevant conduct" and that concept is "naught but the Department's theory of the offense."

Any system that fails to rectify these problems, and thus fails to honor the spirit as well as the letter of the Blakely decision, is constitutionally suspect. In our view, the only way to vindicate the Blakely jury-trial guarantee is to give meaning to the "right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."

Giving meaning to the constitutional right recognized in Blakely: The Kansas approach

The majority in Blakely notes with approval the measures adopted by the Kansas State legislature following invalidation of its state sentencing guidelines. Through modest amendments to its sentencing statutes, Kansas made the Blakely jury-trial right operative within the State's existing sentencing regime. We strongly commend this approach to the Committee's consideration.

Some may discount this approach based on the specious argument that the federal guidelines are more complicated than those used by Kansas. There are several reasons for rejecting this view. Requiring a jury to determine the facts legally relevant to the punishment is no more complicated - indeed, probably less so - than the statutory duty that a federal capital jury must perform: determine what aggravating and mitigating factors are present and then decide whether the aggravating factors "sufficiently outweigh" any mitigating factors so as to "justify a sentence of death." Several district courts have voluntarily adopted a Kansas-like approach in the aftermath of Blakely. To the extent some enhancements prove unduly confusing for juries, this approach would have the added benefit of encouraging simplification of the Sentencing Guidelines.

That the Federal Sentencing Guidelines are amenable to this straightforward approach is implicit in post-Blakely charging policies adopted by the Department of Justice. In his July 2 memorandum to all federal prosecutors, Deputy Attorney General James Comey directs, "Prosecutors should immediately begin to include in indictments all readily provable Guidelines upward adjustments and upward departure factors (except for prior convictions that are exempt from the Blakely and Apprendi rules)." While this may be seen as a defensive litigation strategy (and one that the NACDL does not endorse without congressional authorization), it is not the first time the Department of Justice has conceded the workability of such a system. See Harris v. United States, 536 U.S. 545, 581-82 (2002) (Thomas, J., dissenting) ("The United States concedes, with respect to prospective application, that it can charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury.").

The dangers inherent in any approach that evades Blakely.

We adamantly oppose an approach that would increase the top of each guideline range to the statutory maximum sentence for the offense of conviction (the so-called "Bowman approach"). Converting the guidelines maximum to the statutory maximum not only eliminates important protections against unwarranted disparity in sentencing, it evades the jury-trial right enunciated in Blakely and will be subject to serious constitutional challenge, creating confusion and new avenues for litigation that belie its rationale as a provisional set of rules.

While Professor Frank Bowman has argued that this approach would preserve the status quo, we think this prediction greatly underestimates the unwarranted disparities that will result in some jurisdictions. Permitting unbridled discretion to impose sentences upward to the statutory maximum, while maintaining current restrictions on mitigation, will compound the problems highlighted in Blakely and escalate sentences that are already too high (as denounced by Justice Anthony Kennedy at the American Bar Association's 2003 annual meeting and by the association's Justice Kennedy Commission in its recent report).

Regardless whether judges change their sentencing practices based on the dramatically higher maximum sentences, many prosecutors will use them to unfair advantage in plea bargaining by threatening to request sentences above the former guidelines maximums. Increasing the already disparate plea bargaining power in the hands of federal prosecutors would seriously undermine the core constitutional teaching of Blakely: "The Framers would not have thought it too much to demand that, before depriving a man of . . . his liberty, the State should suffer the modest inconvenience of submitting its accusation to 'the unanimous suffrage of twelve of his equals and neighbours . . . rather than a lone employee of the State.'"

These concerns are not assuaged by the various proposals -- such as directives to the Department of Justice and the courts and the right to appeal under an abuse-of-discretion standard -- to discourage sentences above the minimum guideline sentence. With respect to the right to appeal above-minimum sentences, we doubt that the deferential abuse-of-discretion standard of review will have the intended deterrent effect. In any event, the Department of Justice is likely to render this protection meaningless through pre-existing plea-agreement practices that exact waivers of the defendant's right to appeal.

Even if subject to a sunset clause, this approach rests on infirm constitutional footing and would undoubtedly produce more uncertainly and litigation. It requires that the Supreme Court maintain the distinction between minimum and maximum sentences - a doubtful proposition after Blakely. See Harris, 536 U.S. at 579-80 (Thomas, J., dissenting) ("there are no logical grounds for treating facts triggering mandatory minimums any differently than facts that increase the statutory maximum.").

A short-term legislative fix is unnecessary.

We do not think immediate, short-term legislation is necessary. Indeed, at the time of this writing, one circuit court of appeals has held that Blakely does not apply to the Federal Sentencing Guidelines. United States v. Pineiro, (5th Cir., July 12, 2004). Some states with guidelines systems that run afoul of Blakely have announced their intention to consider the issue over time while the courts, prosecutors and defense counsel adapt current practices to conform to the law. If a short-term fix is deemed absolutely necessary, advisory guidelines are preferable to the so-called "Bowman approach." Most importantly, advisory guidelines would avoid the constitutional infirmity and asymmetrical departure authority of the Bowman approach. Several states and the District of Columbia have adopted advisory sentencing guidelines, and we believe that such a system would be coherent, balanced and workable in the short-term. We note, however, that such an approach remains inconsistent with the spirit of Blakely and should be subject to a sunset clause.

We would welcome the opportunity to provide additional input regarding the various proposals for addressing Blakely and our view that any long-term approach must embrace the jury-trial guarantee announced in that decision. If you have any questions or would like further information regarding NACDL's position, please contact Legislative Director Kyle O'Dowd: (202) 872-8600 x226 or kyle@nacdl.org.


E.E. (Bo) Edwards
Barry Scheck

cc: Members, Senate Judiciary Committee

Read more!

New Case: 5th Circuit & Blakley

Looks like the United States Supreme Court will be deciding whether the federal sentencing guidelines will stand as we now know them.

United States Court of Appeals
Fifth Circuit
No. 03-30437
Plaintiff - Appellee
FRANCISCO D PINEIRO, also known as Frank Pineiro
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit
KING, Chief Judge:
In this case we are called upon to consider the impact on
the federal Sentencing Guidelines of the Supreme Court’s recent
opinion in Blakely v. Washington, 124 S. Ct. 2531 (June 24,
2004). Defendant Francisco D. Pineiro was convicted in the
district court of violating the federal controlled-substances
laws. During sentencing, the district judge followed the non-controversial
pre-Blakely procedures and made various factual
findings that determined Pineiro’s sentencing range under the
Guidelines. This court assuredly will not be the final arbiter of
whether Blakely applies to the federal Guidelines, but the
unremitting press of sentencing appeals requires us to produce a
decision. We have undertaken to discern, consistent with our
role as an intermediate appellate court, what remains the
governing law in the wake of Blakely. Having considered the
Blakely decision, prior Supreme Court cases, and our own circuit
precedent, we hold that Blakely does not extend to the federal
Guidelines and that Pineiro’s sentence did not violate the
Constitution. Accordingly, the defendant’s sentence is affirmed.
A three-count indictment charged Pineiro with committing
federal drug offenses. Count one charged Pineiro with carrying
on a marijuana- and cocaine-distribution conspiracy, involving at
least 100 kilograms of marijuana and 50 grams of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846.1 Count two charged
him with possessing and aiding and abetting possession with
intent to distribute approximately three-fourths of a pound of
marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
1 Section 841(a)(1) provides that “it shall be unlawful
for any person knowingly or intentionally . . . to manufacture,
distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” Section 846
makes it a crime to “attempt[] or conspire[] to commit any
offense defined in this subchapter.”
§ 2.2 Count three charged him with possessing and aiding and
abetting possession with intent to distribute approximately
twenty-one pounds of marijuana in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2.
Pineiro pleaded not guilty, and his case proceeded to trial.
On the first count of the indictment, the verdict form required
the jury to indicate the amounts (if any) of marijuana and
cocaine that the jury found that Pineiro had conspired to
distribute. As to marijuana, the jury could choose whether
Pineiro was guilty of conspiring to distribute “100 kilograms or
more,” “50 to 100 kilograms,” “less than 50 kilograms,” or
whether he was not guilty. Similarly, for cocaine, the jury
could choose from “50 grams or more,” “50 grams or less,” or not
guilty.3 The jury found Pineiro guilty of conspiring to
distribute the lowest amounts listed: “less than 50 kilograms” of
marijuana and “50 grams or less” of cocaine. The jury also found
Pineiro guilty as charged on counts two and three.
Based on the drug quantities found by the jury, the maximum
sentences set forth in the United States Code were 20 years for
count one, see 21 U.S.C. § 841(b)(1)(C) (establishing maximum
2 Section 2 is the United States Code’s general
prohibition on aiding and abetting violations of the federal
criminal statutes.
3 Some of the amounts on the verdict form do not line up
with the gradations in 21 U.S.C. § 841(b). At oral argument we
inquired as to why the form was confected in this way, but
neither side could provide an explanation.
sentences for any amount of cocaine less than 500 grams), and 5
years for counts two and three, see id. § 841(b)(1)(D)
(establishing maximum sentences for less than 50 kilograms of
In accordance with the usual practice, a probation officer
prepared a Presentence Investigation Report (PSR) to assist the
judge in determining an appropriate sentence within the statutory
range. The PSR used the 2002 version of the United States
Sentencing Commission’s Guidelines Manual. The PSR held Pineiro
responsible for amounts of drugs much greater than the amounts
found by the jury: based on statements from several unnamed
cooperating witnesses, the PSR indicated that Pineiro was
responsible for 453.6 kilograms of marijuana and 1,048.95 grams
of cocaine in connection with the conspiracy charge. Based on
this quantity of illegal drugs, the PSR concluded that the base
offense level for the first count was 28. See U.S.S.G.
§ 2D1.1(c) (Drug Quantity Table). The PSR further recommended
that Pineiro also receive a four-level sentence enhancement under
U.S.S.G. § 3B1.1(a) for being “an organizer or leader” of the
conspiracy. The resulting total offense level of 32, when
combined with Pineiro’s criminal history category of I (he had no
prior convictions), yielded a Guidelines sentencing range of 121
to 151 months.
Pineiro objected to the PSR on several grounds, two of which
are relevant to this appeal. First, he objected to the base
offense level of 28, complaining that the jury’s findings with
respect to drug quantities required a lower base offense level.
His objection argued that using the larger quantities would
conflict with Apprendi v. New Jersey, 530 U.S. 466 (2000), and
would disrespect “the sanctity of the jury proceedings.” Second,
he objected to the four-level “organizer or leader” enhancement
on the ground that the evidence at trial did not support such a
factual finding, but he did not raise the constitutional claim
regarding this enhancement.
The district court overruled Pineiro’s objections and
sentenced him to 121 months on the first count, 60 months on the
second count, and 60 months on the third count, with the
sentences to run concurrently.
Piniero then appealed his sentence. In his initial brief,
he conceded that his Apprendi-based challenge to the district
court’s drug-quantity calculation was foreclosed by circuit
precedent, but he nonetheless raised the issue to preserve it for
further review. After briefing was completed but before oral
argument, the Supreme Court decided Blakely, and we ordered
supplemental briefing to assess its impact. Pineiro contends
that Blakely applies to the federal Guidelines and that his
sentence must be vacated and the case remanded for resentencing.4
The government contends that Blakely does not apply.
Impact of Blakely A.
Had today’s case been decided a month ago, Pineiro’s
Apprendi challenge would not have been a difficult one to
resolve. Although post-verdict judicial findings of fact
increased Pineiro’s sentence substantially, the resulting
sentence does not exceed the statutory maximum set forth in the
United States Code. We therefore would simply have applied longentrenched
circuit precedent that holds Apprendi inapplicable to
such circumstances. See, e.g., United States v. Floyd, 343 F.3d
363, 372 (5th Cir. 2003), cert. denied, 124 S. Ct. 2190 (2004);
United States v. McIntosh, 280 F.3d 479, 484 (5th Cir. 2002);
United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert.
denied, 531 U.S. 1182 (2001); Doggett, 230 F.3d at 165-66. This
line of authority embraces the view that judge-made factual
4 Pineiro argues, and we agree, that his Apprendi-based
objection to the PSR’s drug-quantity calculations was sufficient
to preserve for de novo appellate review the constitutional
challenge to his sentence. See United States v. Doggett, 230
F.3d 160, 162-63, 165 (5th Cir. 2000) (holding that an objection
to a PSR based on Jones v. United States, 526 U.S. 227 (1999),
preserved an Apprendi challenge to the defendant’s sentence). As
to the sentence enhancement for being a leader or organizer,
Pineiro does not claim that his fact-based objection to the PSR
was sufficient to preserve the constitutional issue; he claims,
however, that the district court committed reversible plain error
in light of Blakely.
findings that determine Guidelines ranges below the
congressionally enacted maximum sentence are constitutionally
equivalent to the sentencing judge’s historic discretion to
choose a sentence within a legislatively authorized range. But
because of the Supreme Court’s recent decision in Blakely, we are
now required to consider the viability of that line of cases, and
indeed the continued force of certain prior Supreme Court
decisions as well. Committed as we are to principles of stare
decisis and orderliness, we do not depart from settled law in the
absence of an on-point en banc or Supreme Court holding. See,
e.g., Robinson v. Parsons, 560 F.2d 720, 721 n.2 (5th Cir. 1977).
Blakely involved the sentencing regime of the State of
Washington. The Washington criminal code establishes maximum
sentences for felonies according to whether the crime is a class
A, B, or C felony. Also codified as part of the state statutes,
however, is the Sentencing Reform Act, which establishes
presumptive sentencing ranges based on the “seriousness level” of
the offense and the offender’s criminal history. The seriousness
level of the offense is for the most part a function of the
statute of conviction. The Act permits the judge to impose a
sentence above the presumptive range when there exist
“substantial and compelling reasons justifying an exceptional
sentence.” The Act sets out a list of such factors, but the list
is only illustrative, not exhaustive. A factor is a permissible
reason for imposing an exceptional sentence only if it is not
already taken into account in the calculation of the presumptive
Blakely pleaded guilty to second-degree kidnaping with a
firearm. As a class B felony, it was punishable under the state
criminal code by a sentence of up to 10 years. The Sentencing
Act, though, specified a presumptive range of only 49 to 53
months for this particular crime. At sentencing, the judge
imposed an exceptional sentence of 90 months on the ground that
Blakely had acted with “deliberate cruelty,” a statutorily
enumerated ground for upward departure. The defendant objected
to the increase, but the trial judge adhered to his decision
after conducting a three-day bench hearing.
In reaching its decision that Blakely’s sentence was imposed
in violation of the Constitution, the Supreme Court took as its
primary precedent its decision in Apprendi v. New Jersey.
Apprendi involved two New Jersey statutes, one that authorized a
10-year term for the second-degree offense of unlawful possession
of a firearm and a second statute that provided for a term of 10
to 20 years if the trial judge found that the defendant acted
with the intent to intimidate the victim based on his race or
other protected statuses. 530 U.S. at 468-69. The Apprendi
Court concluded that the factual findings supporting the enhanced
sentence had to be made by the jury, not the judge. “Other than
the fact of a prior conviction,” the Court held, “any 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.” Id. at 490 (emphasis added). Two years
later, in Ring v. Arizona, 536 U.S. 584, 597, 604-09 (2002), the
Court applied Apprendi to an Arizona capital-sentencing statute
that permitted imposition of the death penalty when a judge found
one of ten aggravating factors. As the Court described them in
Blakely, the Apprendi and Ring decisions both held “that the
defendant’s constitutional rights had been violated because the
judge had imposed a sentence greater than the maximum he could
have imposed under state law without the challenged factual
finding.” Blakely, slip op. at 6-7.
The aspect of Blakely that threatens the federal Guidelines
is the Court’s reasoning regarding the relevant “statutory
maximum” for Apprendi purposes. The State argued that the
relevant maximum was the 10-year maximum that the criminal code
specified for class B felonies. Since the judge’s exceptional
90-month sentence was still within the 10-year maximum, the State
contended that there was no Apprendi violation. The Court
pointedly rejected that argument, instead concluding that the
relevant maximum was 53 months, the top of the presumptive
sentencing range under Washington’s Sentencing Reform Act:
Our precedents make clear . . . 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. 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. When a judge
inflicts punishment that the jury’s verdict alone does
not allow, the jury has not found all the facts “which
the law makes essential to the punishment,” and the judge
exceeds his proper authority.
Id. at 7 (citations omitted). The Court then pointed out that
the trial judge could not have imposed the 90-month sentence
based solely on the facts admitted in the guilty plea. Id. at 7-
8. To support that sentence, the judge had to find the
aggravating factor. The Court explained:
The “maximum sentence” is no more 10 years here than it
was 20 years in Apprendi (because that is what the judge
could have imposed upon finding a hate crime) or death in
Ring (because that is what the judge could have imposed
upon finding an aggravator).
Id. at 8.
The Court acknowledged, and did not overrule, prior cases
upholding sentencing schemes that impose a mandatory minimum
sentence based on judge-made factual findings. See Harris v.
United States, 536 U.S. 545 (2002); McMillan v. Pennsylvania, 477
U.S. 79 (1986). The Court also reaffirmed the constitutionality
of indeterminate-sentencing regimes in which a sentencing judge
may, but need not, rely on factual determinations outside of the
verdict in fixing a sentence within a broad statutory range. See
Williams v. New York, 337 U.S. 241 (1949). But the Court
distinguished mandatory-minimum and indeterminate-sentencing
systems from the Washington system on the ground that they did
not involve sentences “greater than what state law authorized on
the basis of the verdict alone.” Blakely, slip op. at 8.
Justice Scalia’s opinion for the Blakely majority noted that
the federal Guidelines were not before the Court, and the Court
expressly declined to express any opinion as to them. Id. at 9
n.9. That disclaimer does not by itself mean that Blakely
carries no import for the federal Guidelines, for the binding
force of a Supreme Court decision is ordinarily not limited to
the particular set of facts that produces it. Indeed, the
dissenting Justices certainly thought that the Court’s reasoning
might foretell the end of the federal Guidelines. See id. at 12-
13 (O’Connor, J., dissenting); id. at 19-21 (Breyer, J.,
dissenting). That prophecy has already been realized in several
courts across the country, see, e.g., United States v. Booker,
No. 03-CR-026-S-01 (7th Cir. July 9, 2004); United States v.
Croxford, No. 2:02-CR-00302PGC, 2004 WL 1521560 (D. Utah July 7,
2004), though those courts have reached no consensus on how
sentencing is to proceed after the overthrow of the old regime.
In the wake of Blakely, the constitutional fate of the
federal Guidelines depends on whether the Guidelines effectively
operate as statutes that define different offenses with different
maximum sentences; expressed in different terms, the question is
whether a Guidelines sentencing range unenhanced by judicial
findings sets a “maximum sentence” for purposes of Apprendi. If
that is how the Guidelines operate, then Pineiro’s sentence is
unconstitutional because the verdict did not authorize the
sentence; instead, the judge’s findings effectively determined
the offense of which Pineiro was convicted. The competing vision
of how the Guidelines operate--the position that the government
urges--pictures the Guidelines as a tool for channeling the
sentencing court’s historic discretion to choose a sentence
within the broad range established by the crime’s statutory
(i.e., United States Code) minimum and maximum. On this second
view, a sentencing judge’s factual findings under the Guidelines
do not raise the “maximum sentence” to which the defendant is
exposed, the infirmity that the Court identified in Apprendi and
Ring; the only constitutionally relevant “maximum sentence,”
according to this second view, is the 20-year sentence authorized
in § 841 of Title 21 of the United States Code. The
constitutional implication of this second view is that judge-made
factual findings that determine Guidelines ranges within the
statutory maximum are no more problematic than the sentencing
judge’s historic discretion to choose a sentence within a
legislatively authorized range. As explained more fully below,
both the Supreme Court and this court have for some time embraced
the second vision of how the Guidelines operate.
Undeniably, Blakely strikes hard at the prevailing
understanding of the Guidelines. The Guidelines, unlike
Washington’s Sentencing Act, are not statutes, but they are
nonetheless binding on sentencing courts. See Stinson v. United
States, 508 U.S. 36, 42, 44-45 (1993). Federal statutes direct
the district judge to follow the Guidelines. See 18 U.S.C.
§ 3553(b) (stating that the sentencing court “shall impose a
sentence of the kind, and within the range,” established by an
applicable Guideline). Like the judge who disregards the
Washington sentencing rules, a federal judge who disregards the
Guidelines does so on pain of reversal. The Guidelines Manual is
not a catalog of mere suggestions.
But Blakely, which did not actually involve the federal
Guidelines, is not the only case that we must consider. While we
are bound to follow Blakely, as an inferior court we are also
bound to examine the Supreme Court’s prior pronouncements and
guidance regarding the nature of the Guidelines. That
examination reveals that a number of the Court’s prior cases,
including cases that reject various constitutional challenges to
the Guidelines, are founded on the proposition that there are
constitutionally meaningful differences between Guidelines ranges
and United States Code maxima. These cases paint a picture of
how the Guidelines operate that clashes with the one that Pineiro
would have us adopt.
In canvassing those prior rulings, we look first to
Mistretta v. United States, 488 U.S. 361 (1989). Decided shortly
after the promulgation of the Guidelines, Mistretta upheld them
against constitutional arguments that Congress had delegated
excessive authority to the Sentencing Commission and that the
Commission was constituted in violation of the separation of
powers. Id. at 370-71, 380. The opinion did not discuss the due
process or Sixth Amendment considerations involved in Apprendi
and Blakely, but the case is not without meaning for us. In the
course of the Court’s rejection of the argument that the
placement of the Sentencing Commission in the judicial branch
violated the separation of powers by placing legislative
policymaking authority in the judiciary, see id. at 383, 385, the
Court described the Guidelines as follows:
[The Guidelines] do not bind or regulate the primary
conduct of the public or vest in the Judicial Branch the
legislative responsibility for establishing minimum and
maximum penalties for every crime. They do no more than
fetter the discretion of sentencing judges to do what
they have done for generations--impose sentences within
the broad limits established by Congress.
Id. at 396 (emphasis added). Thus, part of the reason that the
Court was able to reject the separation-of-powers challenge was
its conclusion that the Guidelines do not set maximum sentences
in the same way as do congressional enactments.
Later Supreme Court cases have consistently embraced and
relied on the distinction between Guidelines ranges and maximum
sentences in rejecting various challenges to the Guidelines. One
example of this practice is Edwards v. United States, 523 U.S.
511 (1998). The defendants in Edwards were charged with
conspiring to distribute cocaine powder and crack. The jury
convicted them, but the instructions stated that the government
only had to prove a conspiracy involving powder or crack. In
determining the sentence, the judge held the defendants
responsible for certain amounts of both forms of the drug. The
defendants challenged their sentences on the ground that the
sentencing judge was required by the Guidelines, the statutes,
and the Constitution to consider only powder, which is punished
less harshly than crack. The unanimous Supreme Court disagreed.
The Court’s opinion was mainly concerned with how the Guidelines’
“relevant conduct” rules operate: Since the Guidelines instruct
the judge to examine relevant conduct as well as conduct
underlying the conviction, the crack could be considered even if
the verdict were limited to powder. Id. at 513-14. But the
Court also turned away a potential constitutional argument,
observing that the defendants’ contentions might have been more
persuasive had the defendants’ sentences exceeded the statutory
maxima set forth in the United States Code. Id. at 515. This
remark is only suggestive in itself--the Court did not really
explain what the potential constitutional argument would be5--but
it gathers meaning by virtue of the fact that the Court cited
this passage from Edwards at the close of Apprendi:
The Guidelines are, of course, not before the Court. We
therefore express no view on the subject beyond what this
Court has already held. See, e.g., Edwards v. United
States, 523 U.S. 511, 515 (1998) (opinion of BREYER, J.,
for a unanimous court) (noting that “[o]f course,
petitioners’ statutory and constitutional claims would
make a difference if it were possible to argue, say, that
the sentences imposed exceeded the maximum that the
statutes permit for a cocaine-only conspiracy. That is
because a maximum sentence set by statute trumps a higher
sentence set forth in the Guidelines. [United States
5 The defendants’ briefs show that they raised Sixth
Amendment and due process considerations.
Sentencing Commission, Guidelines Manual § 5G1.1 (Nov.
Apprendi, 530 U.S. at 497 n.21. Our precedents have accordingly
read Apprendi as intending to leave undisturbed the rule,
described in Edwards, that the sentencing judge may properly find
facts that move the Guidelines range within the statutory
maximum. See United States v. McWaine, 290 F.3d 269, 274 (5th
Cir.), cert. denied, 537 U.S. 921 (2002); Doggett, 230 F.3d at
166; see also United States v. Kinter, 235 F.3d 192, 201-02 (4th
Cir. 2000) (similarly harmonizing Apprendi and Edwards). Indeed,
the Supreme Court’s own post-Apprendi cases have continued to
treat the United States Code maximum as the relevant
consideration for purposes of Apprendi. See United States v.
Cotton, 535 U.S. 625, 633 n.3 (2002) (noting that the defendants
challenged the PSR’s determination that the crime involved 1.5
kilograms of cocaine, which yielded a Guidelines offense level of
38, but “they never argued that the conspiracy involved less than
50 grams of cocaine base, which is the relevant quantity for
purposes of Apprendi, as that is the threshold quantity for the
penalty of life imprisonment in 21 U.S.C. § 841(b)(1)(A)”
(emphasis added)).
Also instructive is Witte v. United States, 515 U.S. 389
(1995). There, the drug-quantity calculations that supported the
defendant’s sentence for a conviction arising from a 1991 drug
transaction included quantities from an uncharged 1990 drug
transaction as relevant conduct. When the defendant was later
indicted for the 1990 transaction, he moved to dismiss the
indictment on double-jeopardy grounds. The Court recognized that
the inclusion of the 1990 conduct increased the defendant’s
offense level and corresponding Guidelines range, but it pointed
out that the sentence “still falls within the scope of the
legislatively authorized penalty (5 to 40 years).” Id. at 399
(emphasis added). The Court then concluded that the defendant’s
first sentence did not count as “punishment” for the separate
offense of committing the 1990 transaction. Id. at 399-400. The
Court observed that courts had traditionally been permitted to
use uncharged conduct to inform their sentencing discretion, and
the Court specifically stated that the advent of the Guidelines,
with their “relevant conduct” rules, did not mean that offenders
were now being “punished” for uncharged conduct as a separate
offense. Id. at 397-402. The Court concluded:
Because consideration of relevant conduct in determining
a defendant’s sentence within the legislatively
authorized punishment range does not constitute
punishment for that conduct, the instant prosecution does
not violate the Double Jeopardy Clause’s prohibition
against the imposition of multiple punishments for the
same offense.
Id. at 406.
These cases, and others like them,6 do not discuss the Sixth
Amendment right to a jury trial, and we do not pretend otherwise.
What is true, however, is that the Supreme Court has repeatedly
blessed the Guidelines and upheld them against sundry
constitutional challenges, often employing the proposition that
the United States Code, and not the Guidelines, establishes
maximum sentences for offenses. The Supreme Court’s cases, and
ours, have articulated a particular vision of the interaction
between the Guidelines and the United States Code, and it is a
vision that has held constitutional meaning. To reject that view
of the Guidelines would not directly “overrule” any Supreme Court
holding--a prerogative reserved unto the Court itself--but it
would plainly create an unsettling tension with them.
Blakely may have weakened the long-embraced distinction
between United States Code maxima and Guidelines ranges, but we
cannot conclude that Blakely–which explicitly reserved comment on
the Guidelines--has abolished the distinction’s importance. The
sentencing scheme at issue in Blakely, like that involved in
Apprendi, essentially established two distinct statutory maximum
sentences, with the choice between them turning on judge-made
6 See, e.g., United States v. Watts, 519 U.S. 148, 156
(1997) (per curiam) (stating that “we have held that application
of the preponderance standard at sentencing generally satisfies
due process”). The Watts Court held that the sentencing judge
could consider conduct underlying charges of which the defendant
had been acquitted, the same factual scenario at issue in today’s
case. See id. at 156-57.
findings of fact. In such a circumstance, it makes sense to say
that the legislature has effectively created distinct offenses.7
When the legislature has thus created different offenses, the
defendant has a right to have a jury of his peers decide whether
he is guilty of all of the elements of the more aggravated
offense. See Apprendi 530 U.S. at 476-77. But the Guidelines do
not present such a stark case. We do not believe that the
Sentencing Commission can be thought of as having created for
each United States Code section a hundred different Apprendi
“offenses” corresponding to the myriad possible permutations of
Guidelines factors, with each “offense” then requiring jury
findings on all of its (Guidelines-supplied) elements. Given the
nature of the Guidelines, we think the better view--and one that
respects the prior decisions of both the Supreme Court and this
court--is that the relevant “offenses” and “maximum punishments”
are those defined and authorized by Congress in the United States
Code. Judicial findings under the Guidelines that set sentences
within that authorized range therefore do not offend the
7 See Ring, 536 U.S. at 609 (explaining that the judge’s
finding of “an aggravating circumstance necessary for imposition
of the death penalty . . . operates as the functional equivalent
of an element of a greater offense” (internal quotation marks
omitted)); Apprendi, 530 U.S. at 494 (observing that the effect
of the hate-crime enhancement was “to turn a second-degree
offense into a first-degree offense”).
The Supreme Court might later decide that Blakely is broad
enough to sweep away any distinction between the federal
Guidelines and the statutes that the Court addressed in Apprendi,
Ring, and Blakely; the peculiar nature of the Guidelines might
not serve to save them from the fate of the statutes involved in
those cases. Cf. Blakely, slip op. at 12-13 (O’Connor, J.,
dissenting). Nonetheless, considering the entire matrix of
Supreme Court and circuit precedent, we adhere to the position
that the Guidelines do not establish maximum sentences for
Apprendi purposes. In writing these words we are more aware than
usual of the potential transience of our decision. We trust that
the question presented in cases like this one will soon receive a
more definitive answer from the Supreme Court, which can resolve
the current state of flux and uncertainty; and then, if
necessary, Congress can craft a uniform, rational, nationwide
Drug-quantity findings B.
In light of our conclusion that Blakely does not apply to
Pineiro’s case, the sentencing judge’s factual findings regarding
drug quantities are not problematic under governing law. The
Guidelines direct the judge to impose a sentence based not only
on the conduct reflected in the verdict but also on other related
conduct. See U.S.S.G. § 1B1.3; Edwards, 523 U.S. at 513-15.
That was the proper approach in this case, notwithstanding the
fact that the jury specifically acquitted Pineiro of the large
drug quantities later found by the judge. See Watts, 519 U.S. at
152-57 (holding that the sentencing judge may consider drug
quantities of which a defendant has been acquitted).
“Organizer or leader” enhancement C.
The district court imposed a four-level enhancement under
U.S.S.G. § 3B1.1 based on its conclusion that Pineiro acted as an
“organizer or leader” of a criminal activity. Pineiro objected
on the ground that the evidence did not support such a finding.
We review the district court’s interpretation and application of
the Guidelines de novo and its underlying factual findings for
clear error. United States v. Cabrera, 288 F.3d 163, 168 (5th
Cir. 2002). A finding of fact is clearly erroneous if, based on
a consideration of all the evidence, we are left with the
definite and firm conviction that a mistake has been made. Id.
In deciding whether to impose the enhancement, the court is
to consider the following factors: (1) the exercise of
decisionmaking authority, (2) the nature of the defendant’s
participation in the commission of the offense, (3) the
recruitment of accomplices, (4) any claimed right to a larger
share of the fruits of the crime, (5) the degree of participation
in planning or organizing, (6) the nature and scope of the
illegal activity, and (7) the degree of control or authority
exercised over others. U.S.S.G. § 3B1.1, cmt. n.4.
Pineiro argues that the district court erred in applying the
enhancement because the evidence showed only that he sold a
substantial amount of drugs to his accomplices, not that he acted
as a leader of the enterprise. As he points out, several
circuits have held that a buyer-supplier relationship is
insufficient to qualify for the “organizer or leader” sentence
enhancement. See United States v. Sayles, 296 F.3d 219, 225 (4th
Cir. 2002) (citing cases). This record, however, discloses
evidence that goes well beyond a mere buyer-seller relationship
between Pineiro and his co-conspirators. The evidence permits
the conclusion, for instance, that Pineiro directed and paid
several couriers, including a courier who acted for a coconspirator.
The general character of the evidence, as a factfinder
could view it, is that Pineiro oversaw the logistics of a
drug-distribution scheme in which he had drugs delivered from
Mexico to his property in Texas and then acted as the exclusive
supplier to several co-conspirators in Louisiana over the course
of several years. The evidence here is thus not unlike that in
past cases in which we have upheld the organizer enhancement.
See United States v. Cooper, 274 F.3d 230, 246-47 (5th Cir.
2001); United States v. Castillo, 77 F.3d 1480, 1493 (5th Cir.
1996). Further, our precedents permit the district judge to
consider the quantity of drugs supplied as one factor among
others in considering the organizer enhancement, see United
States v. Valencia, 44 F.3d 269, 273 (5th Cir. 1995), and, on the
basis of the district court’s factual findings, a substantial
amount of drugs was indeed involved.8 The evidence was
conflicting on many issues, but we cannot say that we are left
with a firm conviction that a mistake has been made. Therefore,
there was no clear error in imposing the enhancement.
For the foregoing reasons, the defendant’s sentence is
8 Pineiro also argues that, even if the district judge’s
factual findings are not clearly erroneous considering the record
as a whole, we must nonetheless vacate and remand for further
findings because the district judge legally erred in imposing the
enhancement solely on the basis of the PSR’s conclusion that
Pineiro was a “supplier of drugs.” But the same paragraph of the
PSR also stated more broadly that Pineiro was “responsible for
the distribution” of a large amount of drugs, and other portions
of the PSR (which the district court adopted) provided a factual
basis for the organizer enhancement. Cf. Valencia, 44 F.3d at
272-73 (rejecting an argument similar to Pineiro’s).

For more information on this evolving drama:
Judge David Finn

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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:






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




Defendant. )

___________________________________ )


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,





Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Lee M. Ayers


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.



Assistant Federal Public Defender

For more information contact:Judge David Finn

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