Monday, July 12, 2004

Response to the Blakely-Harris Question

Many, many thanks to Clayton A. Sweeney, Jr. who has taken the time to write a very lengthy and thoughtful response to my Blakely-Harris dilemma. I've posted the entire response but the basic answer from his post seems to be: 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).

That's not to discount the rest of the post, it's very much worth reading. In fact, the direction Mr. Clayton takes the post in is a little eerie given that my Note (the preempted one, remember) argues that Congress intended drug quantity to be an element of 21 USC 841. In fact, Mr. Clayton cites the case of US v. Goodine, which not only appears in Blakely, but is the very case that got me into this whole mess when I was working at Goldstein & Howe last summer (failed cert pet.) Enough from me, Clayton's response:

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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