The Guidelines are Dead Long Live the Guidelines

The Guidelines are Dead; Long Live the Guidelines Keith Williams Greenville, NC

Three Points: n n n The Foundation of Booker: Apprendi and Blakely Booker Rocks the Guidelines How it Works in the Trenches 2/12/2022 Keith Williams Greenville, NC

The Foundation of Booker n n n Apprendi v. NJ, 530 U. S. 466 (2000) Under New Jersey law: judge could impose sentence above the statutory maximum by finding aggravating factors at sentencing Factors found by judge based on preponderance of evidence 2/12/2022 Keith Williams Greenville, NC

n n US Supreme Court said: you can’t do that “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” 2/12/2022 Keith Williams Greenville, NC

n n Did Apprendi change anything under the federal Sentencing Guidelines? No. Even before Apprendi, the Guideline sentencing range could not go above the statutory maximum 2/12/2022 Keith Williams Greenville, NC

n For example: in a drug case with a 20 year (240 -month) statutory max: ¡ ¡ ¡ 2/12/2022 Guidelines might calculate a sentencing range of 235 to 293 months based on drug weight, role in the offense, etc. But statute capped the top end of the range at 240 months So the actual sentencing range would be 235 to 240 months Keith Williams Greenville, NC

n n So Apprendi by itself had no effect on the Guidelines But then the Supreme Court decided Blakely, and things started to get interesting 2/12/2022 Keith Williams Greenville, NC

n n n Blakely v. Washington, 542 U. S. 296 (2004) Mr. Blakely pled guilty to second degree kidnapping in Washington state court Punishable by up to 10 years (120 months) under the statute 2/12/2022 Keith Williams Greenville, NC

n n n No jury found any aggravating factors Mr. Blakely did not admit any aggravating factors as part of his plea Presumptive sentencing range: 49 to 53 months 2/12/2022 Keith Williams Greenville, NC

n n At sentencing, the judge found an aggravating factor: that Mr. Blakely acted with deliberate cruelty Therefore: the judge imposed an aggravated sentence of 90 months 2/12/2022 Keith Williams Greenville, NC

n n Was above presumptive sentencing range of 49 to 53 months But below 120 -month top end punishment allowed by statute That was OK under Apprendi, right? No! Redefine “statutory maximum” 2/12/2022 Keith Williams Greenville, NC

n “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” beyond the jury’s verdict or beyond what the Defendant admits in his plea 2/12/2022 Keith Williams Greenville, NC

n n n What was the maximum sentence the judge could impose without any additional findings? 53 months - the top end of the presumptive sentencing range So 53 months was the “statutory maximum” 2/12/2022 Keith Williams Greenville, NC

n Nothing higher than 53 months allowed, unless ¡ ¡ n a jury found the aggravating factors; or Mr. Blakely admitted them as part of his plea Imposing a sentence above 53 months based on judge-found facts at sentencing violated the Sixth Amendment right to trial by jury 2/12/2022 Keith Williams Greenville, NC

n n The burning question then became: does this same analysis apply to the federal Sentencing Guidelines? After all - the Guidelines rely on a multitude of judge-found facts at sentencing (determination of drug weight, role in the offense, etc. ) 2/12/2022 Keith Williams Greenville, NC

n n The Court’s response in Blakely: footnote 9: “The Federal Guidelines are not before us, and we express no opinion on them” Thereupon commenced a wild period of seven months of speculation and rumor until the Court resolved the issue with its decision in Booker 2/12/2022 Keith Williams Greenville, NC

Booker Rocks the Guidelines n n United States v. Booker, 543 U. S. ---, 125 S. Ct. 738 (January 12, 2005) The facts: ¡ ¡ 2/12/2022 Mr. Booker went to trial and was convicted of possessing more than 50 grams of crack Evidence at trial was 92. 5 grams Keith Williams Greenville, NC

n If the Guideline sentencing range was determined based solely on the facts found by the jury: ¡ ¡ ¡ 2/12/2022 92. 5 grams of crack = Offense Level (OL) 32 Booker was in criminal history category (CHC) VI OL 32, CHC VI = 210 to 262 months Keith Williams Greenville, NC

n n But as we all know: the Guidelines do not base sentencing solely on the facts found by the jury Instead: the Guidelines require the judge to look broadly at relevant conduct, role in the offense, and many other factors never presented to the jury 2/12/2022 Keith Williams Greenville, NC

n The judge at sentencing made two findings beyond the jury’s verdict: ¡ ¡ n n Extra drug weight of 566 grams of crack Obstruction of Justice Enhancement Offense level went from 32 to 38 New sentencing range: OL 38, CHC VI = 360 months to life 2/12/2022 Keith Williams Greenville, NC

n n Judge imposed sentence of 360 months The highest sentence the judge could have imposed without the additional findings on drug weight and obstruction was 262 months 2/12/2022 Keith Williams Greenville, NC

n The defense argument in Booker: this is just like Blakely: ¡ ¡ 2/12/2022 The “statutory maximum” is the maximum sentence that the judge can impose without making any additional findings beyond the jury’s verdict So the sentence should have been capped at 262 months Keith Williams Greenville, NC

n n The Supreme Court agreed “There is no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines in [this case]. ” 2/12/2022 Keith Williams Greenville, NC

n The Guidelines are Dead! ¡ ¡ ¡ 2/12/2022 Defendant’s sentence must be based on facts found by jury at trial or facts admitted by Defendant in his guilty plea Guidelines violate the Sixth Amendment right to jury trial because they require the judge to make additional findings of fact at sentencing that increase the sentence So mandatory Guideline sentencing is out Keith Williams Greenville, NC

n But – Long Live the Guidelines ¡ ¡ 2/12/2022 They no longer bind the judge, but they still have a role to play at sentencing The Guidelines rise from the grave and walk again in the remedy section of the Booker opinion. . . Keith Williams Greenville, NC

n If mandatory Guideline sentencing is the problem, what is the solution? ¡ ¡ ¡ 2/12/2022 Throw out the Guidelines? No Have the jury determine all Guideline factors (drug weight, role in the offense, etc)? No Get rid of the “mandatory” nature of the Guidelines? Yes Keith Williams Greenville, NC

n “We answer the question of remedy by finding [that] the provision of the federal sentencing statute that makes the Guidelines mandatory [is] incompatible with today's constitutional holding. We conclude that this provision must be severed and excised. . . So modified, the Federal Sentencing Act makes the Guidelines effectively advisory. It requires a sentencing court to consider Guideline ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well. ” 2/12/2022 Keith Williams Greenville, NC

n Which means: that post-Booker federal sentencing looks like this: ¡ ¡ 2/12/2022 First: the judge determines the advisory (nonbinding) Guideline sentencing range Second: per the Fourth Circuit in United States v. Hughes: “the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in [18 U. S. C. 3553(a)] before imposing the sentence” Keith Williams Greenville, NC

¡ ¡ ¡ 2/12/2022 “If the court imposes a sentence outside the guideline range, it should explain its reasons for doing so. ” Judge still required to stay within any sentence ranges required by statute (for example, minimum of 10 years, maximum of life) 3553(a) factors: nature of the offense, history of the defendant, need for deterrence, Guideline range, need for restitution, etc. Keith Williams Greenville, NC

How It Works in the Trenches n n United States v. Robert “Bob” Serrano (used with client’s consent) Government alleged: interstate burglary ring: ¡ ¡ ¡ 2/12/2022 “Case the joint” during the day Break in that night (going through the wall next door to avoid tripping alarm) Sell the stolen jewelry to Bob Keith Williams Greenville, NC

n n Bob contended: he bought the jewelry but did not know it was stolen Jury convicted Judge sentenced: first sentencing: pre-Booker: 64 months Government appealed: said the loss amount was too low 2/12/2022 Keith Williams Greenville, NC

n Fourth Circuit agreed with Government: ¡ ¡ ¡ 2/12/2022 Ordered resentencing Use higher loss amount Guideline range should be 97 -121 months Keith Williams Greenville, NC

n n Fourth Circuit’s opinion issued June 14, 2004 Booker decided January 12, 2005 Resentencing held March 8, 2005 Guidelines were mandatory at the first sentencing – but advisory only at the second one 2/12/2022 Keith Williams Greenville, NC

n n Advisory Guideline range: 97 to 121 months Binding statutory range: 0 to 20 years 2/12/2022 Keith Williams Greenville, NC

n Factors argued to the court as grounds for sentence below Guideline range: ¡ ¡ 2/12/2022 Defendant’s age: 60 years old Defendant’s health problems: diabetes, mental health issues, etc Keith Williams Greenville, NC

¡ ¡ 2/12/2022 Codefendants received substantially lower sentences (through cooperating) of 18 and 24 months Amount of loss as determined by Fourth Circuit overstated the actual loss Keith Williams Greenville, NC

n Court found: ¡ ¡ 2/12/2022 Booker applied at resentencing Advisory Guideline range was 97 to 121 months Defendant’s age and health condition warranted lesser sentence And amount of loss likely overstated the seriousness of the offense Keith Williams Greenville, NC

n Court imposed: sentence of 54 months ¡ ¡ ¡ 2/12/2022 Booker made all the difference Freed the court from the Guidelines Caused the prosecutor to regret appealing the case – ultimately helped Bob by keeping his case alive until after Booker decided Keith Williams Greenville, NC

Conclusion n An exciting time to practice criminal law Take advantage of the opportunities we have been given Mitigate the daylights out of your sentencing 2/12/2022 Keith Williams Greenville, NC