Opinion

United States v. Kandirakis

441 F. Supp. 2d 282
2006 U.S. Dist. LEXIS 53243
2006 WL 2147610

Court: District Court, D. Massachusetts
Filed: Aug 1, 2006
Status: Published
Author: Young
On the bench: Young
Cited by: 29 cases
Authority: More cited than 77.8%

observing that “were the Guidelines truly ‘advisory,’ [defendant’s] argument [alleging an ex post facto clause violation] would lose much of its force,” but declining to apply post-con-duet Guidelines because the court “is required to give substantial weight to the Guidelines”

How later courts described this case

observing that “were the Guidelines truly ‘advisory,’ [defendant’s] argument [alleging an ex post facto clause violation] would lose much of its force,” but declining to apply post-con-duet Guidelines because the court “is required to give substantial weight to the Guidelines”
discussing the First Circuit’s decisions that have interpreted Booker's dual holdings, including United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir.2006); United States v. Pho, 433 F.3d 53 (1st Cir.2006); and United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.2005)
noting that “the importance of grasping these fundamental concepts has never been greater — nor their recognition less secure”
“[T]he Guidelines cannot be called just another factor in the statutory list, 18 U.S.C. 3553(a) (2000), because they are the only integration of the multiple factors. The fact that the Guidelines are promulgated by an expert agency and that they were important to promoting remedial Booker’s uniformity and fairness concerns counseled in favor of their continued central role.”

Written by the judges who cited it.

The opinion

SENTENCING MEMORANDUM

YOUNG, District Judge.

“What is overlooked in post

-Booker

discussions is the fact that, for seventeen years, federal courts had been sentencing offenders unconstitutionally.”

For seventeen years federal courts had been sentencing offenders unconstitutionally. Think about that. The human cost is incalculable' — thousands of Americans languish in prison under sentences that today are unconstitutional. The institu

*283

tional costs are equally enormous — for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core values of an independent judiciary because they have been brought up in a sentencing system that strips the words “burden of proof’, “evidence”, and “facts” of genuine meaning

; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history.

Today, elements in the legislature, a monolithic executive, and courts below the Supreme Court all seem to be acting in concert to devise a sentencing system as close to unconstitutionality as possible.

This Court has charted a different course — one that gives real meaning to the language of

all

the controlling decisions of the Supreme Court, yet scrupulously adheres to the rulings of that inferior court which controls the work of this one. It is a procedure that ensures significant protections for all litigants without added burden, wasted time, or cost to our system of justice.

This Sentencing Memorandum maps the legal landscape and explains the Court’s procedures within it — all in the context of a well-tried case which required this Court to work through the implications of its own practices.

I. The Prosecution — Opening Moves

On December 15, 2004, a federal grand jury indicted Jess Siciliano (“Siciliano”), Michael Arco (“Arco”), and George Kandi-rakis (“Kandirakis”) for conspiracy and possession, with intent to distribute, oxyco-done — known commonly by one of its trade names, OxyContin. The government charged that Siciliano was an OxyContin supplier and that Arco and Kandirakis

*284

were OxyContin retailers who got their illicit supplies from Siciliano. The government conceded that Kandirakis was the least involved of the three. Siciliano and Arco quickly copped pleas. The plea deals, proffered to the Court pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C)

, would result in a 46-month sentence for Siciliano and a 57-month sentence for Arco.

The Court held an extensive plea colloquy with Siciliano and Arco, explaining the procedural protections it affords defendants who go to trial.

See infra

Part IV. From this colloquy, the Court concluded that both Siciliano and Arco had bargained down, for sentencing purposes, the quantity of OxyContin properly attributable to them, the government trading away provable facts in return for the certainty that comes from a plea.

The First Circuit explicitly embraces such “fact bargaining”, even when relevant data is hidden from the Court.

See United States v. Yeje-Cabrera,

430 F.3d 1, 23-30 (1st Cir.2005). While this is the ugly truth on which many plea-bargained sentences rest, so sweeping is our plea bargaining culture today, that it is a staple of criminal practice in this circuit and district.

Those who deny it

*285

are sophists, engaging in what one of my colleagues calls “a massive exercise in hypocrisy”. Bert

hoff,

140 F.Supp.2d at 64.

Fearing the vindictive moral quagmire that the government creates when it posits a more favorable, alternative factual universe for those who will plead guilty, but then proves the actual facts against those who go to trial, this Court entertained Siciliano’s and Arco’s proffered pleas, but declined to accept or reject them until KandiraMs had been tried and, if necessary, sentenced.

This done, the government and Kandi-rakis, gearing up for trial, “set [their] faces to the stormy sea [and] bid the land farewell.”

A necessary part of that preparation, for both the Court and counsel, involved significant legal analysis.

II. A “Muddled”

Legal Landscape: The Two Faces of

Booker

Eighteen months ago the Supreme Court issued its decision in

United States v. Booker.

548 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). The case had promised to be the culmination of a reinvigoration in the criminal defendant’s Sixth Amendment right to trial by jury, which the Court had begun several years before in

Apprendi v. New Jersey.

530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000).

Apprendi

the Court held that, “[o]ther than the fact of a prior conviction

, any

*286

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.”

Id.

at 490 , 120 S.Ct. 2348 .

The consequences of

Apprendi

for the Federal Sentencing Guidelines were immediately apparent.

See id.

at 550-51 , 120 S.Ct. 2348 (O’Connor, J., dissenting). Though the facts of

Apprendi

involved legislatively enacted statutes, the constitutional rule of that case seemed equally to apply to all judge-based, determinate sentencing schemes. This Court so held on June 18, 2004, in

United States v. Green,

346 F.Supp.2d 259 (D.Mass.2004), which ruled the Guidelines unconstitutional.

Green’s

reasoning was confirmed days later in

Blakely v. Washington,

542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), which invalidated the State of Washington’s nearly identical sentencing apparatus. Though the Supreme Court officially reserved the question,

id.

at 305 n. 9, 124 S.Ct. 2531 , after

Blakely

it was quite obvious to many other observers that the Guidelines were unconstitutional. As soon as “the [Supreme] Court could get before it a case properly presenting the constitutionality of the mandatory [federal] Guidelines”, they likewise were invalidated.

Booker,

543 U.S. at 313 , 125 S.Ct. 738 (Scalia, J., dissenting in part).

Booker

could have been the simple, logical extension of the Supreme Court’s

Ap-prendi

jurisprudence. Instead, the Court produced a fractured, 124-page decision with two majority opinions and four dissents. What remained after the verbal cannonades was this:

• One majority opinion (“Constitutional

Booker”)

which ruled that the Guidelines violated the Sixth Amendment. This opinion was written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg.

•Another majority opinion (“Remedial

Booker”)

which ruled that the way to rectify the constitutional infirmity was to make the Guidelines advisory rather than mandatory. This opinion was written by Justice Breyer and joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Ginsburg.

How logically to implement these two majority opinions has been a question with which the lower federal courts have been grappling ever since.

A. Constitutional

Booker

The constitutional decision in

Booker

is quite succinct. A review of the Court’s Sixth Amendment jurisprudence — especially its

Blakely

decision — yielded but one conclusion: “[T]here is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in that case.”

Booker,

543 U.S. at 233 , 125 S.Ct. 738 . As quoted above, the rule set forth in

Apprendi

is that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be sub

*287

mitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 , 120 S.Ct. 2348 . As further explicated in

Blakely ,

“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.” 542 U.S. at 303-04 , 124 S.Ct. 2531 .

The mandatory nature of the Guidelines was crucial. “If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. ... Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act of 1984] the provisions that make the Guidelines binding on district judges----”

Booker,

543 U.S. at 233 , 125 S.Ct. 738 . Therefore, after rejecting

stare decisis

and separation of powers arguments, the Court “reaffirmed [its] holding in

Apprendi”

and declared the Guidelines unconstitutional.

Id.

at 239-43, 244, 125 S.Ct. 738 .

B. Remedial

Booker

The second majority seized on the mandatory nature of the Guidelines in remedying their unconstitutionality.

Booker,

543 U.S. at 244-71 , 125 S.Ct. 738 . Consequently, rather than grafting the Sixth Amendment’s jury right onto the Guidelines (the solution preferred by the Justices of Constitutional

Booker ,

minus Justice Ginsburg) or discarding the Guidelines altogether (a solution no Justice supported), Remedial

Booker

papered over the Guidelines’ Sixth Amendment infirmity by “severing] and excisfing]” two sections of Title 18 that made the Guidelines mandatory for sentencing

and appellate

*288

courts.

Id.

at 245, 249, 125 S.Ct. 738 . Doing so made the Guidelines “effectively advisory”.

at 245, 125 S.Ct. 738 .

Section 3553(b)(1) of the U.S.Code required the district court to impose a sentence “of the kind[ ] and within the range” set forth in the Guidelines. Striking this Section, the Court ruled that what remained still “requires judges to take account of the Guidelines together with other sentencing goals.”

Id.

at 259, 125 S.Ct. 738 (citing 18 U.S.C. § 3553 (a)). Thus, “[t]he district courts, while not bound by the Guidelines, must consult those Guidelines and take them into account when sentencing.”

Id.

at 264 , 125 S.Ct. 738 . “It requires a sentencing court to consider the Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well.”

Id.

at 245-46, 125 S.Ct. 738 (citations omitted).

Further, the Court struck Section 3742(e).

Id.

at 260-67, 125 S.Ct. 738 . That Section had given the Circuit Courts of Appeals

de novo

review of sentences falling outside the prescribed Guidelines range.

See

18 U.S.C. § 3742 (e)(3)(B)(ii). In its place, the Court established a standard of “reasonableness”. Stating that the appellate courts were “already familiar” with the standard from “the past two decades of appellate practice in cases involving departures”, the Court said that circuit courts should look to the factors set forth in Section 3553(a) to guide them, “as they have in the past”.

Booker,

543 U.S. at 261 , 125 S.Ct. 738 . Disclaiming Justice Scalia’s “belief that use of a reasonableness standard ‘[would] produce a discordant symphony’ leading to ‘excessive sentencing disparities,’ and ‘wreak havoc’ on the judicial system”, the Remedial

Booker

majority concluded that, as the Sentencing Commission “continue[s] to modify its Guidelines”, it would “encourag[e] what it finds to be better sentencing practices.”

Id.

at 263, 125 S.Ct. 738 . This tack would “thereby promote uniformity in the sentencing process”,

id.,

and allow circuit courts to “iron out sentencing differences”,

id.

at 263, 125 S.Ct. 738 .

*289

C. Contradictions

“The Federal Sentencing Guidelines are dead. Long live the Federal Sentencing Guidelines.”

As Judge Michael W. McConnell of the Tenth Circuit has noted, the two

Booker

opinions, “taken in tandem, do not get high marks for consistency or coherence.... The most striking feature of the

Booker

decision is that the remedy bears no logical relation to the constitutional violation.” Michael W. McConnell,

The

Booker

Mess,

83 Denver U.L.Rev. 665, 677 (2006).

The constitutional violation of the Guidelines was that judges, rather than juries, found the facts necessary for sentencing. Instead of focusing the remedy on who performed the fact-finding, however, Remedial

Booker

honed in on the “necessity” of the facts. It purported to make those facts “unnecessary” by making the Guidelines “effectively advisory”. As a result, “[t]he jury verdict is no more consequential after

Booker

than it was before”. McConnell,

supra,

at 677. “All the things that troubled Sixth Amendment purists about the

pre-Booker

Guidelines system are unchanged”, including reliance on uncharged and even acquitted conduct.

Id.; see Booker,

543 U.S. at 302 , 125 S.Ct. 738 (Stevens, J., dissenting in part) (“[T]he Court [in Remedial

Booker

] has effectively eliminated the very constitutional right

Apprendi

sought to vindicate”).

The way in which most circuit courts have decided to review the countless criminal sentences issued under the

pre-Booker,

mandatory Guidelines system illustrates this contradiction well. The First Circuit

confronted the question in

United States v. Antonakopoulos.

399 F.3d 68 (1st Cir.2005). The court first framed the issue: “The

[Booker]

error is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system.”

Id.

at 75 . Formulating the error this way brings the contradiction of

Booker

into stark relief: Reading the

Apprendi

line of cases — including Constitutional

Booker

— one naively might have thought judicial fact-finding was

precisely

the constitutional error. Because Remedial

Booker

allowed the Guidelines’ unconstitutionality to be remedied by concocting an advisory system, however, it is hard to find fault with the ruling in

Anto-nakopoulos.

This premise then led the First Circuit to conclude that for a defendant to receive the benefits of

Booker ,

he must “point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to [him] under the new ‘advisory Guidelines’

*290

Booker

regime.”

Id.

The court said that “this is a necessary consequence of our view of the nature of the

Booker

error.”

Id.

at 79. The First Circuit is not alone.

See United States v. Liner,

435 F.3d 920 (8th Cir.2006);

United States v. Graham,

413 F.3d 1211 (10th Cir.2005);

United States v. Ameline,

409 F.3d 1073 (9th Cir.2005);

United States v. Mares,

402 F.3d 511 (5th Cir.2005);

United States v. Lee,

399 F.3d 864 (7th Cir.2005);

United States v. Rodriguez,

398 F.3d 1291 (11th Cir.2005);

see also

M.K.B. Darmer,

The Federal Sentencing Guidelines after

Blakely

and

Booker:

The Limits of Congressional Tolerance and a Greater Role for Juries,

56 S.C. L.Rev. 533, 564 (2005) (“While [Constitutional

Booker

] was a natural outgrowth of the Court’s recent jurisprudence, [Remedial

Booker

] produced a jarring result in attempting to salvage as many current features of the Guidelines as possible while effectuating an end-run around the Sixth Amendment requirements [Constitutional

Booker

] recognized.”). Though Judge McConnell is judicious in his critique, suggesting that “this is not the whole story” and finding fault with Constitutional

Booker

as well,

id.

all indications are that his initial criticism of Remedial

Booker

is precisely on point. Justice Stevens said as much in his dissent to Remedial

Booker :

“In reality, the majority’s concerns ... are nothing more than an objection to

Appren-di

itself....”

Booker, 543

U.S. at 288, 125 S.Ct. 738 ;

see also

3 Blackstone,

supra,

at 350. Colonial Americans were all-too-familiar with the necessity of this protection. Professor Rachel E. Barkow recounts one of the most notable episodes:

In 1734, the royal governor in New York sought to punish [John Peter) Zenger for publishing criticism of the administration. After three grand juries refused to indict Zenger, the governor prosecuted him on the basis of an “information.” At the trial, Zenger’s lawyer argued that the petit jurors “ha[d] the right, beyond all dispute, to determine both the law and the fact” and -could conclude that the truth of Zenger’s criticisms could be the basis of an acquittal, even though the law on the books stated that truth was not a defense to libel. The jurors used their power to return a general verdict to acquit. The case was highly publicized; an account of the trial was produced in pamphlet form and widely circulated throughout the colonies. It “impressed thousands of Americans with the importance of the right to jury as a bulwark against official oppression” and “revolutionized America.” It was one of many cases in which a jury essentially nullified the law of seditious libel, and it demonstrated the jury’s power to decide cases based on its notions of fundamental law.

Rachel E. Barkow,

Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing,

152 U. Pa. L.Rev. 33, 52 (2003) (footnotes omitted, second alteration in original);

see also

Amar,

Bill of Rights, supra,

at 84-88.

It is clear beyond peradventure that what the Founders had in mind by protecting criminal juries was the protection of the people’s ability to continue so to rule.

See

Barkow,

supra

at 46-84. Taken in combination, the jury’s widely accepted power to issue a general verdict, if an acquittal, together with the Fifth Amendment’s Double Jeopardy Clause, creates the possibility of an absolute veto by the people before the government can succeed in attaching the label “criminal” to any defendant.

See id.

at 48-50; Amar,

Bill of Rights, supra,

at 96-98. One variation on this theme was known, at common law, as “pious perjury”, in which the jury would convict on some lesser-included offense even though the evidence supported the more serious charge.

See 4

Blackstone,

supra,

at 238-39, 354;

see also

Fed.R.Crim.P. 57(b) (“A judge may regulate practice in any manner consistent with federal law, these rules, and the local rules of the district.”).

Finally, given Remedial

Booker’s

slim majority and the new composition of the Supreme Court, the state of the law in this area is uncertain and in flux.

As a matter of prudence, it serves the interests of judicial economy to try criminal cases in this manner.

Kelley,

355 F.Supp.2d at 1038 (“In view of the uncertainty surrounding this issue, the court will err on the side of caution in protecting a criminal defendant’s constitutional rights. Just as a court should construe a statute to avoid a constitutional infirmity if possible, prudence dictates that the court should adopt sentencing procedures that lessen the potential that a sentence will later be found unconstitutional.” (citation omitted)). Should the Supreme Court eventually adopt the view of the Remedial

Booker

dissenters — as this Court understands the Constitution to require — cases tried in this Court by these procedures will not have to be retried, as the jury already will have issued a verdict on the enhancement facts. For this, the government some day will be grateful.

The government’s objections to this Court’s procedures, then, must come down to a calculated determination to marginalize the American jury and thereby enhance executive power at the expense of the Congress and the judiciary. This Court’s procedure instead minimizes the drain on the moral authority of the judiciary, preserving at least a modicum of involvement by its democratic branch and maximizing the voice of the people — to the extent higher courts presently will entertain it.

3. The Proper Standard of Proof Concerning Enhancement Facts

Nothing in Remedial

Booker

precludes judges from utilizing a reasonable doubt standard in the determination of enhancement facts. In

Apprendi

the Supreme Court held that, in addition to having a jury find every fact, “[ejqually well founded is the

companion right

to have the jury verdict based on proof beyond a reasonable doubt.”

Apprendi,

530 U.S. at 478 , 120 S.Ct. 2348 (emphasis added). The decision in

Apprendi

rested on both the Sixth Amendment and the Fourteenth.

See id.

at 476-77 , 120 S.Ct. 2348 . To which right, then, is the reasonable doubt standard a “companion” — the Sixth Amendment right to a jury or the right to Due Process? Because

Booker

dealt only with the Sixth Amendment, if the requisite standard of proof is a companion to Due Process, applying a reasonable doubt standard when finding enhancement facts seems compelled under applicable Supreme Court precedent, despite Remedial

Booker .

*326

The answer is made somewhat more obscure because, in most of the Supreme Court’s key rulings on this issue, the government party has been a state, not the federal government.

See Blakely v. Washington,

542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004);

Apprendi v. New Jersey,

530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000); McMillan

v. Pennsylvania, 477

U.S. 79, 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986);

Patterson v. New York,

432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977);

Mullaney v. Wilbur,

421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975) (Maine);

In re Winship,

397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970) (New York). In order to apply Sixth Amendment strictures to states, of course, the Fourteenth Amendment’s Due Process Clause must be used. Any mention of Due Process in these cases, therefore, is inherently ambiguous regarding the independent necessity of the Due Process Clause to the holding.

Apprendi

offers help here. It stated, “At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without ‘due process of law,’ Arndt. 14, and the guarantee that ‘in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,’ Arndt 6.”

Apprendi,

530 U.S. at 476-77 , 120 S.Ct. 2348 . The separate reference to Due Process is noteworthy. Further,

Apprendi

unequivocally reaffirmed the Supreme Court’s decision in

Winship, see Apprendi,

530 U.S. at 484, 490 , 120 S.Ct. 2348 , which had ruled that the requisite standard of proof was mandated by Due Process, Winship, 397 U.S. at 364 , 90 S.Ct. 1068 . Moreover, Apprendi “confirm[ed] the opinion that [the Court] expressed in Jones ”,

Apprendi,

530 U.S. at 490 , 120 S.Ct. 2348 , which had itself expressed Due Process concerns with the standard of proof,

see Jones,

526 U.S. at 242-43 , 119 S.Ct. 1215 . Because the United States was the government party in

Jones ,

in order to mention Due Process, the Fifth Amendment must have been at play.

See id.

at 243 n. 6, 119 S.Ct. 1215 (citing the Fifth Amendment). Due Process need not have been mentioned in

Jones

(nor confirmed in

Apprendi)

if all aspects of these cases could have been disposed of solely on the basis of the Sixth Amendment.

Pre-Apprendi

cases tend to confirm this conclusion as well.

Mullaney

held that states could not reallocate the burden of proof such that it negates the presumption of innocence; to do so was contrary to Due Process. 421 U.S. at 703-04 , 95 S.Ct. 1881 . As explained earlier, the reasonable doubt standard is intimately related to this presumption of innocence.

See supra

Part III.C. Likewise, even if some aspects of its holding were subsequently questioned,

McMillan

rested its approval of the preponderance standard for “sentencing factors” on its interpretation of Due Process.

See All

U. S. at 91-93, 106 S.Ct. 2411 . Indeed, the Sixth Amendment argument of the petitioners in that case “merit[ed] little discussion” in light of the Supreme Court’s Due Process holding.

Id.

at 93 , 106 S.Ct. 2411 .

What becomes clear from these cases is that the standard of proof is not bound up with the identity of the decisionmaker, but rather the nature of the matter to be proved.

Pre-Apprendi

cases adhered to an “element”/“sentencing factor” dichotomy and used that framework to decide when the protections of the Sixth Amendment and Due Process were triggered. Cases since

Apprendi ,

however, have adopted a more functional approach to this dichotomy.

See supra

Part III.A. This is the primary teaching of

Apprendi. See

530 U.S. at 487 n. 13, 120 S.Ct. 2348 (limiting the holding of McMillan)..

*327

The absence of pure Due Process discussions in

post-Apprendi

cases indicates that no alteration of the standard of proof set forth in

Apprendi

was intended in those cases. The Supreme Court’s decisions in

Blakely

and

Booker

expounded various aspects of the

Apprendi

rule, but not its stated standard of proof. No majority opinion in either

Blakely

Booker

mentions the Fifth Amendment or Due Process; both are pure Sixth Amendment cases. The debate in

Booker ,

in particular, addressed the identity of the fact-finder, judge or jury, not the standard of proof to be applied. Repeated analyses by various majorities of the Supreme Court, therefore, show that no case subsequent to

Ap-prendi

— not even Remedial

Booker

— altered the law regarding the Due Process necessity of applying the reasonable doubt standard to enhancement facts.

It may be that Remedial

Booker

contemplated continued (albeit advisory) application of the Guidelines, which theretofore had relied on the preponderance standard for finding the relevant facts. That opinion, however, rested its argument on an interpretation of the Sentencing Reform Act. And unlike judicial fact-finding, which purportedly was mandated by that Act, the preponderance standard emanates from the Guidelines themselves:

“The Commission believes

that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case.” U.S.S.G. § 6A1.3, comment (emphasis added);

see United States v. Watts,

519 U.S. 148, 156 , 117 S.Ct. 633 , 136 L.Ed.2d 554 (1997) (“The Guidelines state that it is ‘appropriate’ that facts relevant to sentencing be proved by a preponderance of the evidence, and we have held that application of the preponderance standard at sentencing generally satisfies due process.” (citations omitted));

see also

Letter from Jon M. Sands, Federal Public Defender, to Hon. Ricardo Hinojosa, Chair, U.S. Sentencing Commission (July 19, 2006), Memorandum at 1 ("The Commission should not continue to recommend minimal constitutional protections.”),

available at

http://sentencing.type-pad.com/sentencing_law_and_policy/files/ de-fender_letter_to_ussc_71906.pdf.

.A Rule 11(c)(1)(C) plea bargain crowds a judge into a "take it or leave it” position. It facilitates plea bargaining — today, the functional goal of our criminal justice system, see George Fisher,

Plea Bargaining's Triumph,

109 Yale L.J. 857 (2000) — by requiring a judge to "give back” a plea if she imposes other than the sentence bargained for.

This, of course, adds a powerful, near-hydraulic pressure in favor of plea bargaining. While it theoretically still guards against extreme, sweetheart deals and monstrously draconian agreements, such safeguards are practically nil. In twenty-one years of service as a district judge, I have never refused such a plea once proffered. (I can make this statement with confidence since Donald Womack, the superb official court reporter assigned to this session,

see Miara v. First Allmerica Fin. Life Ins. Co.,

379 F.Supp.2d 20 , 69 n. 57 (D.Mass.2005), has provided to the Court and to the public a fully searchable database of all this Court's sentencing decisions at http://don-womack.com.

See infra

note 76.)

The reasons for the parties seeking to cabin judicial discretion are not hard to fathom. I have a deserved reputation for sentencing severely.

See, e.g., Berthoff v. United States,

140 F.Supp.2d 50, 55 (D.Mass.2001) (sentencing at the top of the Guidelines range). At least, I did under the unconstitutional "mandatory Guidelines” system. Siciliano and Arco wished to avoid the risk of a sentence heavier than they could bargain. Ever the superb institutional litigant, however, the government as a repeat player, sensed (it probably keeps its own records) that in the present "advisory Guidelines” system, I am more likely than any of my colleagues in the District of Massachusetts to sentence below the advisory range (but not by much). U.S. Sentencing Commission, "Federal Sentencing Statistical Report Prepared for the Hon. Mark L. Wolf, Chief Judge” (2006) (providing individual district court judge and circuit court statistics on length of sentences imposed and Guidelines departure comparisons). The government naturally wished to force a sentence as severe as it could bargain.

. The longer proposed sentence for the retailer Arco as compared with the supplier Siciliano is explained by Arco’s lengthier criminal history.

. In fairness to the government, it must be noted that during Kandirakis’s sentencing hearing, the Court revised its view as to Arco, concluding that, in his case, the sentence imposed actually encompasses his relevant conduct.

See, e.g., Yeje-Cabrera,

430 F.3d at 23-30 ;

United States v. Thurston,

358 F.3d 51 (1st Cir.2004);

United States v. Rodriguez,

162 F.3d 135 (1st Cir.1998);

United States v. Bleidt,

No. 05-10144 (D. Mass filed June 5, 2005), Plea Hr’g, Dec. 5, 2005 (aged and vulnerable nature of many victims omitted to secure plea);

United States v. Fuller,

No. 05-10082 (D. Mass. filed Mar. 24, 2005), Plea and Sentencing Hr'g, Nov. 16, 2005 (fraud loss amount understated to secure plea);

United States

Montilla,

No. 04-10160 (D. Mass. filed May 20, 2004), Sentencing Hr’g, Oct. 18, 2005 (drug quantity understated to secure plea).

See

Amie N. Ely, Note,

Prosecutorial Discretion as an Ethical Necessity: The Ashcroft Memorandum's Curtailment of the Prosecutor's Duty to "Seek Justice",

90 Cornell L.Rev. 237, 252-59 (2005) (describing the Department of Justice's purported charging and sentencing policies).

. It is clear that the First Circuit sees no vindictiveness where the government is willing to hide facts from the Court if there is to be a plea, but goes ahead and proves those facts if the plea deal falls through and the defendant goes to trial.

Yeje-Cabrera,

430 F.3d at 23-30 . Such analysis binds this Court. What remains unclear is whether that court discerns vindictiveness when one defendant gets the advantage of an imaginary universe of facts, and another, similarly situated defendant does not.

But see United States v. Thurston,

No. 05-2271, 456 F.3d 211, 216 , 2006 WL 2065404, at *4-5 (1st Cir. July 26, 2006) (mandating a lengthy prison sentence for one defendant who went to trial, but probation for a co-defendant who pled; defendants were not similarly situated

because

one of them went to trial; yet this rule does not “impose a burden on [the defendant's] exercise of his constitutional right to a jury trial”).

. Tommy Makem, “Ballad of the Lady Jane”,

on Lonesome Waters

(Shanachie Records 1986).

. Douglas A. Berman,

Perspectives and Principles for the

Posf-Booker

World,

17 Fed. Sentencing Rep. 231, 231 (2005) ("[T]he

Booker

decision made a conceptually muddled constitutional jurisprudence of sentencing even more opaque.”).

. The Court's decision in

Apprendi

had been foreshadowed the previous term in

Jones v. United States,

526 U.S. 227 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999), which construed a federal statute so as to avoid the constitutional question.

. This caveat was the remnant of the Court’s decision in

Almendarez-Torres v. United States.

523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). The five-Justice majority included Justice Thomas, who all but recanted his support for that decision in

Apprendi. See

530 U.S. at 518-23 , 120 S.Ct. 2348 (Thomas, J., concurring). Since

Apprendi ,

Justice Thomas has made only clearer his dissatisfaction with his vote in

Almendarez-Torres. See Rangel-Reyes

United

States,U.S.-,---, 126 S.Ct. 2873 , 2874-75, 165 L.Ed.2d 910 (2006) (Thomas, J, dissenting from denial of certiorari);

Shepard v. United States,

544 U.S. 13, 27-28 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005) (Thomas, J., concurring)

("Almendarez-Torres ...

has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that [it] was wrongly decided. The parties do not request it here, but in an appropriate case, this Court should consider

Almendarez-Torres’[s]

continuing vi

*286

ability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule ...." (citations omitted)). The issue not having been revisited by the Court, however, it is still "good law”.

See Booker,

543 U.S. at 244 , 125 S.Ct. 738 .

But see Rangel-Reyes,

126 S.Ct. at 2873 (Stevens, J.) ("While I continue to believe that

Almendarez-Torres

United States,

523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), was wrongly decided, that is not sufficient reason for revisiting the issue.”).

Apprendi

is fast becoming one of the most-cited Supreme Court cases ever.

See

Adam N. Steinman,

The Irrepressible Myth of

Cylo-tex:

Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy,

63 Wash. & Lee L.Rev. 81, 144-45 (2006) (showing

Apprendi

as the 24th most-cited case by all courts, despite being only 6 years old).

. Title 18, Section 3553 provides in relevant part:

(a)

Factors to be considered in imposing sentence.

— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider — ■

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendants as set forth in the guidelines issued by the Sentencing Commission pursuant to section 994(A)(1) of title 28, United States Code, and that are in effect on the date the defendant is sentenced;

(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) that is in effect on the date the defendant is sentenced;

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

(b)

Application of guidelines in imposing a

sentence.—

(1)

In general.

Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guide

*288

lines that should result in a sentence different from that described.....

. Title 18, Section 3742(e) provides:

Consideration.

— Upon review of the record, the court of appeals shall determine whether the sentence—

(1) was imposed in violation of the law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

(3) is outside the applicable guideline range, and

(A) the district court failed to provide the written statement of reasons required by section 3553(c);

(B) the sentence departs from the applicable guideline range based on a factor that—

(i) does not advance the objectives set forth in section 3553(a)(2); or

(ii) is not authorized under section 3553(b); or

(iii) is not justified by the facts of the case; or

(C)the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

(4)was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court’s application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court's application of the guidelines to the facts.

. Edward Lazarus, "The Supreme Court's Sentencing Guidelines Decision: Its Logic, and Its Surprisingly Limited Practical Effect”, Jan. 21, 2005,

http://writ.news.find-law.com/lazarus/20050121.html.