Wednesday, July 07, 2004

The DOJ's Best Argument?

In my opinion, the best argument from the government's Sample Brief for why Blakely does not apply to the Guidelines turns on the understanding of what a "statutory maximum" means and what the top of the guideline range means. The government argues that the top of the guideline range is not the statutory maximum and to rule otherwise would be to create a second statutory maximum. The government sets this argument up by comparing the federal sentencing system, in which there is only one statutory maximum, with the Washington system which has two statutory ranges.

Here's a passage from the government's sample brief:

In so ruling, the Court clearly viewed the Guidelines enhancements not as "statutory maximums" (requiring proof to a jury beyond a reasonable doubt), but as rules channeling the discretion of judges within the congressionally set maximums in the U.S. Code. Indeed, the Court explicitly said as much in Edwards, which it notably cited with approval in Apprendi:
Of course, petitioners’ statutory and constitutional claims [that the court must base its Guidelines sentence exclusively on the cocaine-only facts found by the jury] 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.

Edwards, 523 U.S. at 515; Apprendi, 530 U.S. at 497 n.21; see also Witte, 515 U.S. at 399-400 (although Guidelines enhancement for uncharged conduct resulted in higher Guidelines range than otherwise would have applied, range "still falls within the scope of the legislatively authorized penalty" and is thus constitutionally permissible); Mistretta, 488 U.S. at 396 (Guidelines "do not . . . establish[] minimum and maximum penalties" for crimes).
The Court has thus analyzed the Guidelines as channeling judicial discretion within congressionally set statutory maximums, not as creating lower statutory maximums for the offenses defined by Congress.

In the end though, I don't think that distinction makes a difference. Justice Scalia's opinion is very clear on this: "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." To me, that statement makes the government's distinction irrelevant. In fact, the government’s brief seems to be making the argument that Scalia directly rejects. The pertinent “maximum” is not the one enacted by Congress for the offense, it’s what the jury’s verdict or the defendant’s plea authorizes.

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