Monday, July 12, 2004

Blakely and US v. Harris, Are they consistent?

Although I anticipate this week’s frenzied Blakely decisions, hearings and happenings will overshadow the subject of this post, I have to raise a question that has been on my mind for a few days now: Does US v. Harris survive Blakely?

I know, I know – Scalia says as much in Blakley. And several commentators have said as much. But before we accept that as gospel let me remind you that three weeks ago, you probably thought that you knew what “statutory maximum” meant. So at least entertain some of the following thoughts…

I think that the following edict from Blakely compels a reversal of Harris:

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,” Bishop, supra, §87, at 55, and the judge exceeds his proper authority.

Here’s why. Consider the statute in Harris:

“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–
“(i) be sentenced to a term of imprisonment of not less than 5 years;
“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

Harris was charged with the following: “during and in relation to a drug trafficking crime,” petitioner had “knowingly carr[ied] a firearm.” The jury finds that statement true beyond a reasonable doubt. Ok, so he gets 5 years, right? Nope, he gets 7 because the judge, based on a preponderance of the evidence, said he “brandished” the weapon.

If the jury’s finding is limited to “you carried a firearm,” why can the judge, given what we now know from Blakely, “find” that you brandished it and sentence the defendant to a 7 year sentence? Is the distinction that the brandishing provision is in the statute? If that’s the answer, how is this “hybrid” or “superfact” (terms used by King and Klein, Beyond Blakely at 6) distinct from drug quantity in 21 USC 841? Distributing any detectable amount of cocaine violates 21 USC 841, but judges can’t just sentence you to life because the jury said you had a detectable amount of drugs. A judge couldn’t do that before Blakely, much less after it (see US v. Booker).

Why does it matter that the judge’s finding triggers a mandatory minimum? Doesn’t this rely on a rather truncated view of the 6th Amendment, one that Blakely has challenged?

Still not convinced? Take a look at my excerpt from Blakley a few paragraphs above this one. Notice the quotation from Bishop. Compare that with this excerpt from Harris:

McMillan was on firm historical ground, then, when it held that a legislature may specify the condition for a mandatory minimum without making the condition an element of the crime. The fact of visible firearm possession was more like the facts considered by judges when selecting a sentence within the statutory range–facts that, as the authorities from the 19th century confirm, have never been charged in the indictment, submitted to the jury, or proved beyond a reasonable doubt:

“[W]ithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment. Where the law permits the heaviest punishment, on a scale laid down, to be inflicted, and has merely committed to the judge the authority to interpose its mercy and inflict a punishment of a lighter grade, no rights of the accused are violated though in the indictment there is no mention of mitigating circumstances. The aggravating circumstances spoken of cannot swell the penalty above what the law has provided for the acts charged against the prisoner, and they are interposed merely to check the judicial discretion in the exercise of the permitted mercy. This is an entirely different thing from punishing one for what is not alleged against him.” Bishop, Criminal Procedure, §85, at 54.

Again, in Blakely, Scalia cites Bishop in a footnote:

Rather, the entire chapter of his treatise is devoted to the point that “every fact which is legally essential to the punishment” must be charged in the indictment and proved to a jury. 1 J. Bishop, Criminal Procedure, ch. 6, pp. 50–56 (2d ed. 1872). As one “example” of this principle (appearing several pages before the language we quote in text above), he notes a statute aggravating common-law assault. Id., §82, at 51–52.

I take that to mean that if you want to punish Harris for 7 years, you have to allege that he brandished the weapon. So, which Bishop controls?

I have lots of questions, here’s possibly my best one: Assume the statute does not contain the brandishing enhancement or the discharging the weapon enhancement. Instead, those enhancements appear in the SG. The judge, under this revised statute, sentences Harris to 7 years because he brandished the weapon. How, if at all, does this change the result in Harris?

Please, please post a response. I’ll likely post those responses onto the “main” page, so don’t fear that your crushing rebuttal will be relegated to the obscure nether-regions of the “comments” page.

If I understand your question, you raise a generally valid point about mandatory minima having the effect of increasing the statutory maximum--but one that just does not clearly apply to the statute in Harris because of the way the statute has been (mis)interpreted.

I assume from your comments that by just reading the statute, you concluded that 924(c) precisely mandates the specific sentences enunmerated in the statute. Under this interpretation an increase in the minimum under 924(c) necessarily increases the statutory maximum as well.

While I believe that is consistent with congressional intent, that is not how the statute is interpreted (or the basis upon which Harris was decided). Despite the rule of lenity and the fact that Congress regularly expressly specifies "life" as the maximum sentence when it intends life to be the maximum sentence, statutes mandate a minimum sentence in terms of "no less than 'x' years" have been held to carry an impled life sentence. Thus, for all subsections of 924(c), there is an implied life sentence. Under the rationale of both Harris and Blakely, all that is "legally essential" to a life sentence in the judges' discretion is a conviction under 924(c).

Section 2K2.4 of the Guidelines Manual, however, provides that for one "convicted under" 924(c) "the term of imprisonment it that required by statute." (Note that the guideline provides some support for the proposition that the implied life maximum interpretation is erroneous--and that even the drafters of the Guidelines believed Congress intended its applicability to turn upon the jury verdict, not judicial factfinding as the Harris Court held).

While under 924(c) alone, there is no Blakely problem, there may be one when 924(c) is combined with the section 2K2.4 (assuming, of course, that the guidelines survive at all). Based upon the conviction alone, the guideline base offense level is 5 years. Judicial factfinding, however, then raises the statutory sentence and, in consequence, the guideline base offense level. Blakely bells should go off regarding the latter effect. The assumption that 2K2.4 sets a base offense level independently of the statute, however, may be resolved against the defendant, particularly since the base offense is expressly set by reference to the statute.

The idea that a properly determined "guidelines range" may trump a judicially determined mandatory minimum is not limited in application to 924(c) and section 2K2.4. Take for instance, the facts of United States v. Goodine, 326 F.3d 26 (1st Cir. 2003). The defendant was convicted by a jury for more than 5 grams of cocaine base, but acquitted with respect to more than 50 grams of cocaine. The defendant had one prior felony drug conviction. The judge ruled that the mandatory minimum sentence under 841 was not governed by the jury verdict, but by judicial factfinding. He rejected the jury verdict, attributed 309 grams of crack to the defendant, and applied a 20 year mandatory minimum sentence under section 841(b)(1)(A).

According to Blakely (again assuming the guidelines survive somehow), the "guideline range" sentence should have been 70-87 months under under U.S.S.G. 1B1.1(g) & Part 5A (5 grams of crack/CHC II). As the determination of the guideline range is complete at that stage, it is much clearer than with 924(c) and 2K2.4 that the guideline range is independent of the statutory mandatory minimum, notwithstanding superior status conferred to statutes in Part 5G for purposes of imposing the sentence.

As an aside to this analysis (but critically important to the proper functioning of the criminal justice system under a system of federalism), the guideline range actually calculated by the judge in Goodine was 168 months to 210 months--30 months below the statutory mandatory minimum imposed under 841(b)(1)(A). If, as Judge Becker has persuasively demonstrated in United States v. Vazquez, 271 F.3d 93, 107-115 (3d Cir. 2001)(en banc) (Becker, C.J., concurring in result), Congress intended drug amount to be an all-purpose offense element, Mr. Goodine has been sentenced for an offense of which the jury acquitted him.

Judge Becker's interpretation is not necessarily a pro-defendant or pro-prosecution argument. Had Mr. Goodine been convicted of an 841(b)(1)(A) offense, the mandatory minimum would present no Blakely issue. Moreover, the district court could not evade the mandatory minimum by judicial factfinding. Cf., e.g., United States v. Chapple, 985 F.2d 729, 731 (3d Cir. 1993). As reading the legislative history Judge Becker cited shows, Congress intended to bind judges to the jury verdict for purposes of the mandatory minimum; like the Feeney amendments, the mandatory minimum sentences (re)introduced in 1986 manifested congressional antipathy to the exercise of judicial discretion in favor of defendants. Those who would interpret Apprendi and its progeny rendering statutory interpretation irrelevant do not account well for the history and specific purposes of the federal drug laws.
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