Monday, July 12, 2004

Fifth Circuit - US v. Pineiro - Food for Thought

Some facts from US v. Pineiro:

The jury said that Pineiro conspired to distribute less than 50 grams of cocaine and less than 50 kilograms of marijuana.

The PSR, accepted by the judge (but not submitted to the jury), said that Pineiro conspired to distribute 1,048.95 grams of cocaine and 453.6 kilograms of marijuana.

The judge sentences based on the PSR report (which is the difference between a base offense of 28 v. 20, by my count). Pineiro appeals based on Blakely.

The 5th Circuit says:

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.

Compare that from this passage from Blakely v. Washington:

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 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. 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.



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