Amicus Curiae Brief — Blakely v. Washington

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Supreme Court, U.S.

FILED

i %

(W) JAN 2.3 2008

OFFICE OF THE CLERK

No. 02-1632

Jn the Supreme Court of the Gnited States

RALPH HOWARD BLAKELY, JR., PETITIONER

Vv.

STATE OF WASHINGTON

ON WRIT OF CERTIORARI

TO THE WASHINGTON COURT OF APPEALS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

THEODORE B. OLSON

Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

NINA GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

| BEST AVAILABLE COPY'|

QUESTION PRESENTED

Whether a fact (other than a prior conviction) that justi-

fies an upward departure from a state statutory sentencing

guidelines range must be found in accordance with the pro-

cedures required by Apprendi v. New Jersey, 530 U.S. 466

(2000).

TABLE OF CONTENTS

Interest of the United States ............c..ccccccecccscsscsssessseeeeresesseneees

Statement

A. The Washington sentencing guidelines .............. —

B. The present controversy ....-....--s.ssssssssesnesnseneenesennenees

Summary of argument ............c.ccsssssesessessessensensssssssssensessssesesseess

Argument:

A sentencing court may constitutionally make an

upward departure decision under the Washington

Sentencing Guidelines ...........-.-vessssessesnsssseeenensenenneneensnnsensnees

A. Apprendi v. New Jersey applies only when a

defendant's exposure to increased punishment

depends on the finding of a fact specified by the

The sentencing cour’ has broad authority

to find facts and make judgments bearing

on an appropriate punishment .............0ss0sesee

Constitutional limits on sentencing exist to

preclude circumvention of Fifth and Sixth

Amendment guarantees ...........:cssessssesseeneneeneenennes

Apprendi is limited to statutorily required

factual determinations ............csesvsessseeesenenenerenenees

B. Apprendi does not apply to upward departure

determinations under the Washington guide-

NOS BY GCOTI ..20.ccecececcccccsccecsorororecscorencsessens 7

A defendant’s exposure to a sentence above

the presumptive range is not contingent on

the court’s finding of legislatively specified

amentally different from the factual findings

TD ccenserecsscsszscssssessnencssennezcnssecssnsscsosocses

(III)

oOo wo KY =

IV V

Table of Contents—Continued: Page Cases—Continued: Page

3. Upward departure determinations closely Koon v. United States, 518 U.S. 81 (1996) ....-.2-eececsecvernerees 21

resemble the traditional role of judges in McMillan v. Pennsylvania, 447 U.S. 79 (1986) ......-.-.-+--- 12

i 9 Mistretta v. United States, 488 U.S. 361

BOTRGTICNYG .-2000-.00c2ecsccccsccsececesesccenssosnsecensesecsecsosscsossees 21

4. Allowing judges to make departure deter- (1989) sescnnnnnnnnnnnneeees arene 26, 27, 30

inati Monge v. California, 524 U.S. 721 (1998) ....----ss----erseeseeem 32

eainations tases _ preuhene Sat-Gating Nichols v. United States, 511 U.S. 738 (1994) ...........- 12, 27

yaandaved eng emunder~iammmenmaemianans North Carolina v. Alford, 400 U.S. 25 (1970) vee 4

protected by Apprendi ...........ccevereressesnensnenenenenens 22 Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51

C. Applying Apprendi to upward departures Pv acne 34

under the Washington system would raise Ring v. Arizona, 536 U. Ss. 584 a 7, 13,21

questions about the extent to which Apprendi Sattazahn v. Pennslyvania, 537 U.S. 101 (2003) .......... 21, 33

applies to other guidelines Systems ............--essesnee: 25 State v. Armstrong, 723 P.2d 1111 (Wash. 1986) .......... 19-20

1. The federal sentencing guidelines operate State v. Fisher, 739 P.2d 683 (Wash. 1987) ........------ 3, 17, 18

differently from ihe Washington system ............ 26 State v. Gore, 21 P.3d 262 (Wash. 2001) .......-.---v--ssssee 3,6, 19

2. A decision invalidating Washington's depar- State v. Nordby, 723 P.2d 1117 (Wash. 1986) .......------ 16, 19

ture mechanism would raise questions about State v. a aed. a ~~ ae —, ), 19, 20, 21

ce , review denied, 863 P.2d 74 (Wash. 1993) ......-.-.--.. , 20,

RM we Stinson v. Uinted States, 508 US. 36 (1988) ow %0

D Application of Apprendi to guidelines deter- United States v. Cotton, 585 US. 625 2002) seo -

. anal ;, ‘ited States v. DiFrancesco, 449 U.S. 117 (1980) ......... 32

SES CREE United States v. Gaudin, 515 U.S. 506 (1995) nvcmenenen 12

GEG enecennen 30 United States v. Grayson, 438 US. 41 (1978) ...ccceccesseesees 12

1. Applying Apprendi to guidelines sentencing United States v. Tucker, 404 U.S. 443 (1972) ......--.--s0-s« 12

would create significant problems. .............-.+-+++++ 31 United States v. Watts, 519 U.S. 148 (1997) ....-...-.0--0--0 12, 29

2. The undermining of guidelines systems ~ Williams v. New York, 337 U.S. 241 (1949) ........+++-« 6, 11, 29

would have substantial costs for sentencing Wisconsin v. Mitchell, 508 U.S. 476 (1993) .....-.-----0-sereeee 12

EE 33 Witte v. United States, 515 U.S. 389 (1995) ............. 12, 14, 29

00, 35 Statutes and rules:

TABLE OF AUTHORITIES PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650:

§ 401(b), 117 Stat. 668 30

Cases: § 401(g), 117 Stat. 671 a

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............. passim § 401(i), 117 Stat. 672 30

Harris v. United States, 536 U.S. 545 (2002) ................ 14, 23 18 U.S.C. 3553(b)(1) (as amended Apr. 30, 2003) .......--.------ 25

Jackson v. Virginia, 443 U.S. 307 (1979) ...cccccccssssseseee 32-33 28 U.S.C. 991(a) 26

Jones v. United States, 526 U.S. 227 (1999) ..........c.cc0000 12, 15

Statutes and rules—Continued: Page

Sentencing Reform Act of 1981, Wash. Rev. Code

§§ 9.944.010 et seq. (1997) ..--.---eceeveseseeensnesnenennensnnanennsnssnenens 1-2

§ D.GGA.O1O 2un.ececcuccessesneenessesneensneessnsensenennssnsnnsnsansnnensensenens 2,10

§ G.G4A.120(1) ...eecnccessecsesseeresnssnssnssnsnsenssnsnnesnssnensenennennennenses 3

§ 9.94A.120(2) .......ccccsererensnenenenenenenenensnsnenenenanes 3, 8, 10, 16, 19

§ 9.G4A.120(13) ......ceccecssseesvernsenseeeneensenssnsenennennenenennensenenses 16

§ D.DEA.1DS ....2.0ccccrccresvsnsesesesesensnsnsess secnenenennenmmmemamnmmmsanesetes 2

§ 9.94A.210(4)(D) ..-.-.cecceesvecersnesneeneeneensnensnssnsnneansnnennennannasns 19

§ G.G4A.310(1) ......cecececeserereneeennsnsnsnsnsnnnnensnsnensnsnnsnancnnsnanenes 2

§ 9.G4A.BQ0 ...necneceesecsecsessesesenecnernssnensensensensanssnensenennsnssnsensens 2,27

§ O.GAA.B5O ..n.cccceceesneseesssscsssensnsenensenenssnssnsnsensenenesnensenensenennes 2

§ 9.GAA BGO .....ececcecseseessssesessesnsensnesnsnsensnnsnsensnnenennensnnenenneness 2

§ 9.944.370 ....ccececceccecessesnsesssesnsenenernensnsensnsensenenssensnnsnsenenses 2

§ G.GAA.3TO(2) .....neceecvereeseseserernernssnssssnsensensenennennensenensnss 3,5,17

§ 9.G4A.390 .....cececececeseeeensesnsereresnensnenenansnnenenenenenenens 3,8, 17,19

§ D.GLA.BG9O(1 VO) .-.ecnecsesseevesessessnenesnnenssnsnnsnnsnnensensanenenennses 6

§ 9.G4A S902) a) .....cereereeneeresnesnsensssesnsnnenennssnennennenennennennens 5

§ 9.G4A 3902) ..-.-cseceeseeevesnsseseesnesseensensnnannsnnsnnensnnsnnennenens 5

§ 994A 420 ....ccececeecnssersssneresesensensnesnennsnennsnnensensnenneneenensenennes 2

Washington Criminal Code, Wash. Rev. Code:

§ GA.20.021 ....cccvecceccescessncensensssnennssnsenssnsensenssnsnnsssennsnssnecnssnness 4

§ GA.20.021(1) ....nececceccecsessessssnernssnsenenssnsensensanssnssnenssnenennennennes 2

§ DA.BG.021 ..n.ccecncccecsecnscsecnssnssnssnsenensensensensensenssnennensenssnsonenssnss 4

§ GA.40.080 .n.cecccescecsnecnessssnsenssnsesnernseneensensensenssassnennennensensenness 4

United States Sentencing Guidelines:

§ DBD.1(a) .....cccecececececvsnroresesererensnsssnsnsnsnsnsnenenesensnenssenansnsanenensnes 27

Ey _—_—————————————— -aisnententemnamnenenaseatets 27

§ DBBL.B(a) .nceecceccvesccececsecsessessvssnssnsensensensssssessenssnssneensenennennseneens 28

§ PB1.B(a)(1) ccoeccvecerresessessessnessvsensssnesnsensesnsensennesnnsnnennssnsnnsensenes - 28

§ LB1.B( a2) ..-.-cecec-ceecseeeeeererenenserersnsnsnsnsnnensnensnsnsnennnnansnnenanenes 28

§ DEQ ..accecceccccscesnesnssessessesossesenssneensensnssnsenssnssnsnneensenensansqnsonenees 31

§ DDL.1(D)(1) .n.-rececececeeceeeeeerenensnserensnensnsnsnsensnensnensnennsnsananensnenes 27

§ 5K2.0(a)(2) (as amended Oct. 27, 2003) ....--.------neeeenseeees 25

Ch. 1, Pt. A, intro. comment 4(a) ...-.-.-----neresernerrenrnenenennnnnnes 28, 29

ee 28

Chr. 8, Pt. A cnecveccscnssnesssssvssssenesnsensenssnsensensenensensssnesnsnnsnnsnnennenne 31

Vil

Rules—Continued: Page

Chr. 8, Pt. B ...cecceccsseecessessssssscssvenessesssensssnsensenssnsosnesnsssenenensesess 32

oe, + ene ee 32

State of Wash. Sentencing Guidelines Comm'n,

Adult Sentencing Guidelines Manual (1997) ......------+-+0 16

§ 9.944.320, COMMEN ........-0-eccneneneseenenennnnsnnnnnsnenenensnnnnenes 27

§ 9.944.390, COMMENL ........-cececevenenenenenensnnnsensnsnnsnenennnnenenens 16, 19

Miscellaneous:

American Law Institute, Model Penal Code: Sentencing

Report (2003) (available at <www.ali.org>) ........... 25, 33, 34

Arthur W. Campbell, Law of Sentencing (2d ed.

BDDD) cceceoceeceecesscoecseccessecesssensocssnssnsessssscsscsesenenssssesesesessseeeeeneneees 33

United States Sentencing Commission, Supplementary

Report on the Initial Sentencing Guidelines and

Policy Statement (1987) 29

—

——

iors

In the Supreme Court of the Gnited States

No. 02-1632

RALPH HOWARD BLAKELY, JR., PETITIONER

Vv.

STATE OF WASHINGTON

ON WRIT OF CERTIORARI

TO THE WASHINGTON COURT OF APPEALS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a fact (other than

a prior conviction) that justifies an upward departure from a

state statutory sentencing guidelines range must be found in

accordance with the procedures required by Apprendi v.

New Jersey, 530 U.S. 466 (2000). Although the Washington

sentencing guidelines system differs in significant respects

from the United States Sentencing Guidelines, a decision in-

validating judicial departure authority here could call into

question the constitutionality of the federal Guidelines. The

United States therefore has a substantial interest in the

outcome of this case.

STATEMENT

A. The Washington Sentencing Guidelines

In 1981, the State of Washington became one of the first

States in the nation to enact a sentencing guidelines system

for the sentencing of felony offenders. See Sentencing Re-

form Act (Act) of 1981, Wash. Rev. Code §§ 9.944.010 et seq.

(1)

(1997).' As the Act’s introductory section explains, the pur-

pose of the new sentencing system was “to make the crimi-

nal justice system accountable to the public by developing a

system for the sentencing of felony offenders which struc-

tures, but does not eliminate, discretionary decisions affect-

ing sentences.” Jd. § 9.944.010.

The Washington Criminal Code establishes maximum pri-

son sentences for felonies based on whether the crime is a

class A, B, or C felony. Wash. Rev. Code § 9A.20.021(1). For

a class A felony, the maximum punishment is life imprison-

ment; for a class B felony, the maximum punishment is ten

years; and for a class C felony, the maximum punishment is

five years. Ibid. The Act then establishes “presumptive

sentencing ranges” for felony offenses based on the “serious-

ness level” of the offense and the defendant’s “offender

score.” Jd. § 9.944.310(1) (Table 1). The offense seriousness

level “is determined by the offense of conviction.” Jd. §

9.944.350; see id. § 9.944.320 (Table 2). The offender score

is based on the offender’s criminal history. Jd. § 9.944.360.

The presumptive range is adjusted upward if the offender or

an accomplice was armed with a deadly weapon when com-

mitting the crime. Jd. §§ 9.944.125, 9.944.370.° “If the pre-

sumptive sentence duration given in the sentencing grid

exceeds the statutory maximum sentence for the offense, the

statutory maximum sentence shall be the presumptive sen-

tence.” Id. § 9.944.420.

The sentencing court is to impose a sentence within the

presumptive sentencing range, unless it finds “that there are

| After petitioner's sentencing, the Washington legislature amended

and recodified portions of the Act. The amendments did not make any

substantive change that affects the issues in this case. The citations in

this brief, as in the state court opinions, are to the 1997 version of the Act.

2 When there is a jury trial on the underlying offense, the deadly wea-

pon finding must be made by the jury in a special verdict. Wash. Rev.

Code § 9.94A.125.

substantial and compelling reasons justifying an exceptional

sentence.” Wash. Rev. Code § 9.94A.120(1) and (2). The Act

provides a list of “factors which the court may consider in

the exercise of its discretion to impose an exceptional sen-

tence.” Jd. § 9.944.390. Those factors are “illustrative only

and are not intended to be exclusive reasons for exceptional

sentences.” Jbid. “An exceptional sentence is appropriate

when the circumstances of a particular crime distinguish it

from other crimes within the same statutory definition,” for

example, because there is “extraordinarily serious harm or

culpability.” See State v. Fisher, 739 P.2d 683, 686, 688

(Wash. 1987). Therefore, “the sentencing judge’s reasons for

imposing a sentence outside the presumptive range must

take into account factors other than those which are neces-

sarily considered in determining the presumptive range for

the offense.” Jd. at 686.

In determining the appropriate sentence (including

whether an exceptional sentence is warranted), the court

may consider facts proved at sentencing by a preponderance

of the evidence. Wash. Rev. Code § 9.944.370(2). In impos-

ing an exceptional sentence, the outer boundary of the defen-

dant’s sentencing exposure is the statutory maximum. State

v. Gore, 21 P.3d 262 (Wash. 2001).

B. The Present Controversy

1. On October 26, 1998, petitioner kidnapped his es-

tranged wife, Yolanda Blakely, from her home in Grant

County, Washington. Petitioner attacked his wife and bound

and gagged her with duct tape. He said that he had guns,

ammunition, and knives; told her he wanted her to dismiss

pending litigation involving a trust they had created; and

warned her to cooperate or he would kill her and their son,

13-year-old Ralphy. J.A. 3, 41-42.

Petitioner forced Yolanda to climb into the back of his

truck, where he locked her in a coffin-like vented wooden

box that he had constructed. While retrieving items from

the house, petitioner repeatedly opened the lid of the box

and pressed a knife to Yolanda’s neck or nose. J.A. 3, 42-43.

When Ralphy arrived home from school, petitioner told him

that his mother was in great danger and took him to the

truck where he could hear Yolanda yelling from inside the

wooden box. Petitioner ordered Ralphy to drive his

mother’s car and told him that if he “tried anything,” peti-

tioner would shoot the box with a shotgun. J.A. 3-4, 43.

Petitioner drove the truck toward the couple’s home in

Montana, and Ralphy followed in the car. When Ralphy

tried to seek help at a truck stop, petitioner left him behind

and drove on to Montana. During the drive, petitioner alter-

nately let his wife sit in the front seat and forced her to ride

in the wooden box. Petitioner and Yolanda arrived at the

house of a friend, who secretly called the police. The police

arrived and arrested petitioner. J.A. 4-5, 43-47.

2. The State of Washington charged petitioner with two

counts of first degree kidnapping involving domestic vio-

lence. J.A. 5. After a pretrial competency hearing at which

a jury found petitioner competent to stand trial, petitioner

agreed to enter a plea under North Carolina v. Alford, 400

U.S. 25 (1970), to one count of second degree kidnapping in-

volving domestic violence with a deadly weapon and one

count of second degree assault involving domestic violence

with a deadly weapon. J.A. 6-7, 24, 75-76. The plea agree-

ment stated that the maximum term of imprisonment for

each offense was ten years. J.A. 63. See Wash. Rev. Code

§§ 94.36.021, 9A.40.030; id. § 9A.20.021. The plea agreement

also stated that the standard sentencing range for peti-

tioner’s offenses was 49-53 months for the kidnapping charge

and 13-17 months for the assault charge. J.A. 63. Both the

plea agreement and the court, at the plea hearing, advised

petitioner that he could be sentenced above the standard

range if the judge found compelling reasons, and petitioner

~~.

stated that he understood. J.A. 66; Verbatim Report of Pro-

ceedings, Vol. I (VRP I), at 549-550.

At sentencing, the court expressed the view that a sen-

tence within the standard range would be “too lenient” be-

cause petitioner committed the kidnapping with “deliberate

cruelty” and in the presence of his son. VRP II, at 41-42; see

J.A. 7. The court stated that it intended to sentence peti-

tioner to 90 months of imprisonment on the kidnapping

count. VRP II, at 42-44. Because petitioner objected to the

court’s underlying factual findings, the court scheduled an

evidentiary hearing as required by Washington law. VRP I,

at 562-563; J.A. 8; see Wash. Rev. Code § 9.94A.370(2).

Before the evidentiary hearing, petitioner filed a motion

arguing that the court was required to impose a sentence

within the standard range. He argued that a determination

that an upward departure was justified based on facts found

by the court by a preponderance of the evidence would be

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466

(2000). VRP I, at 566-570; see J.A. 13. The court denied

petitioner’s motion. J.A. 51-59.

Following the evidentiary hearing, the court imposed an

exceptional sentence of 90 months of imprisonment on the

kidnapping charge, to run concurrently with a standard sen-

tence of 14 months on the assault charge. J.A. 8, 32. Based

on detailed findings of fact, J.A. 40-50, the court concluded

that petitioner’s “[r]epeatedly and protractedly confining his

victim in a coffin-like box manifested deliberate cruelty to

the victim,” as described in Washington Revised Code

§ 9.944.390(2)(a). J.A. 49. The court further concluded that

the kidnapping “involved domestic violence, * * * occurred

within sight and sound of the victim and [petitioner’s] minor

child,” and “manifested deliberate cruelty to, and intimida-

tion of, the victim.” Jbid. (citing Wash. Rev. Code §

9.94A.390(2)(h)). The court also concluded that, although

petitioner’s capacity to appreciate the wrongfulness of his

conduct was impaired by personality disorders, see id.

§ 9.944.390(1)(e), the disorders “did not significantly impair

[petitioner’s] capacity to act with deliberate cruelty.” J.A.

49. Considering the purposes of the Washington Sentencing

Reform Act, the applicable presumptive sentencing range,

and its factual findings and legal conclusions, th court deter-

mined that there were “substantial and compelling reasons

justifying an exceptional, aggravated sentence.” Jbid.

3. The Washington Court of Appeais affirmed. J.A. 2-23.

As relevant here, the court rejected petitioner’s claim that

the upward departure violated Apprendi. J.A. 19. The court

relied on State v. Gore, 21 P.3d 262 (Wash. 2001), in which

the Washington Supreme Court held that, because the

Washington sentencing statutes allow imposition of excep-

tional sentences only “within the maximum range deter-

mined by the Legislature,” factual determinations that sup-

port a court’s determination that an exceptional sentence is

justified need not be submitted to a jury or proved beyond a

reasonable doubt. J.A. 19 (citing Gore, 21 P.3d at 276-277).

The Supreme Court of Washington denied review. J.A.

60.

SUMMARY OF ARGUMENT

The findings underlying an upward departure from the

presumptive sentencing range in the Washington Sentencing

Reform Act are not subject to the jury-trial and reasonable-

doubt guarantees that apply to facts that raise the maximum

statutory sentence under Apprendi v. New Jersey, 530 U.S.

466 (2000).

A. Sentencing systems may constitutionally give a judge

wide discretion to find facts by a preponderance of the evi-

dence and to impose a particular punishment within the sta-

tutory range. Williams v. New York, 337 U.S. 241 (1949).

There are, however, constitutional limits on the legislature’s

freedom to assign a fact-finding role to sentencing judges. In

order to prevent the legislature from circumventing the

jury-trial and reasonable-doubt guarantees, this Court held

in Apprendi that any fact, other than a prior conviction,

“that increases the penalty for a crime beyond the pre-

scribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” 530 U.S. at 490. In

Ring v. Arizona, 536 U.S. 584 (2002), the Court applied Ap-

prendi to Arizona’s capital sentencing scheme, making clear

that a “statutory maximum” under Apprendi must be actu-

ally available to the sentencing court without the finding of

an additional legislatively specified fact.

Apprendi and Ring do not cast doubt on the proposition

that judicial discretion to find facts and exercise judgment

about the appropriate punishment within the statutory

range is constitutional. The procedural requirements of

Apprendi apply only when the finding of a legislatively -

specified fact is essential to increase the statutory maximum

penalty. The limitation of Apprendi to legislatively desig-

nated facts that raise the statutory maximum penalty is

consistent with Apprendi’s purpose: to ensure that the legis-

lature does not evade the procedural protections applicable

to the determination of crimes, but instead remains respon-

sive to “structural democratic constraints” in fixing the

maximum punishment that is proportionate to a crime. 530

U.S. at 490 n.16.

B. Under those principles, Apprendi does not apply to

the determinations involved in making an upward departure

from the presumptive sentencing range under the Washing-

ton guidelines. The statutory maximum sentence is not the

guidelines sentence, but the maximum term set forth else-

where in Washington law. The Washington legislature has

not specified an exclusive set of facts that exposes the defen-

dant to a greater punishment than the presumptive sentenc-

ing range. Rather, the statute gives the sentencing court

discretion to identify facts that justify an “exceptional sen-

tence” based on “substantial and compelling reasons.” Wash.

Rev. Code § 9.94A.120(2). Although the legislature identi-

fied “illustrative” circumstances that may warrant a depar-

ture, id. § 9.944.390, the statute leaves the sentencing court

free to identify others. The power to depart upwards thus

resembles the traditional discretion exercised by a judge in

an indeterminate sentencing scheme, i.e., the power to find

facts that warrant a more or less severe sentence within the

defined range. Washington law structures the exercise of

that discretion, but the legislature recognized that it could

not anticipate all of the facts that might warrant an excep-

tional sentence. The legislature thus preserved judicial dis-

cretion to identify such facts and impose a sentence up to the

statutory maximum.

Reinforcing the conclusion that the legislature has left

room for the exercise of traditional judicial discretion is that

the ultimate exposure of the defendant to a sentence above

the presumptive range turns not solely on facts, but on the

sentencing court’s qualitative judgment that those facts

provide “substantial and compelling reasons” for an excep-

tional sentence. Apprendi applies when a legislature pro-

vides that proof of certain facts exposes the defendant to

greater punishment. A judicial judgment that, based on the

particular record, the defendant should face greater punish-

ment is not a “fact.” -

For those reasons, this case involves an entirely different

sentencing system from the capital regime involved in Ring

v. Arizona. In Ring, the Arizona statute precluded a capital

sentence absent the finding of a legislatively specified fact;

that fact was therefore subject to the procedures of Ap-

prendi. In this case, the sentencing judge retains authority

to reach the statutory maximum based on the exercise of dis- .

cretion to identify exceptional circumstances. The legisla-

ture thus remains accountable for fixing the maximum sen-

tence to which defendants convicted of a particular offense

may be subject, and the scheme is therefore consistent with

the constitutional values underlying Apprendi.

C. A ruling that Apprendi applies to the Washington

Sentencing Guidelines could have serious ramifications, es-

pecially if the Court accepted petitioner’s view that a defen-

dant’s maximum sentence under Apprendi must be deter-

mined “according to the facts reflected in the jury verdict

alone’ or the guilty plea.” Pet. Br. 16-17 (quoting Apprendi,

530 U.S. at 483). Such a ruling could apply to a host of deter-

minations under the United States Sentencing Guidelines

that depend on judicial fact-finding.

There are possible distinctions between the federal guide-

lines and state statutory systems. Most prominently, the

federal guidelines are : somulgated by an administrative

commission, not by Congress. And the presumptive sen-

tence under the federal guidelines does not turn exclusively

on the . -fense of conviction and the offender’s criminal his-

tory, as Washington’s generally does. Rather, conduct out-

side the elements of the offense enters into federal guide-

lines calculations at every level, thus making it difficult to

view the guidelines range as a “statutory maximum.” But it

is uncertain whether those distinctions would be sufficient if

this Court applied Appreri here, since the United States

Sentencing Guidelines have the force and effect of law, and it

is theoretically possible to calculate a guidelines sentence

based on the facts reflected in the jury verdict alone (al-

though that would distort the intended operation of the

Guidelines).

D. The consequence of applying Apprendi to guidelines

sentencing systems would be to impair, and likely render

unworkable, a valuable sentencing reform effort. Requiring

a jury determination of the multitude of facts that enter into

a guidelines determination in the federal system would

prove impossibly cumbersome; would complicate indict-

ments; could lead juries to skew their verdicts to avoid real

or imagined sentencing consequences; 2rd would sharply

limit appellate review of sentences. If those consequences

forced the abandonment of guidelines sentencing, it would

end the most promising sentencing reform movement in

recent years. State and federal guidelines systems arose to

address recurrent issues of disparate treatment of similarly

situated offenders, and they were designed to increase fair-

ness, transparency, and proportionality in sentencing. Ap-

prendi requires the legislature to take responsibility for

establishing the maximum sentence that may be imposed for

commission of a particular crime. That requirement does not

require the end of legislative efforts to channel sentencing

discretion through guidelines systems.

ARGUMENT

A SENTENCING COURT MAY CONSTITUTIONALLY

MAKE AN UPWARD DEPARTURE DECISION UNDER

THE WASHINGTON SENTENCING GUIDELINES

The State of Washington enacted its sentencing guidelines

system to “structure[], but * * * not eliminate, discre-

tionary decisions affecting sentences.” Wash. Rev. Code

§ 9.944.010. Integral to the operation of that scheme is a

departure authority under which sentencing courts have dis-

cretion to take into account factors that provide “substantial

and compelling reasons justifying an exceptional sentence”

outside the presumptive sentencing range, but within the

Statutory maximum. /d. § 9.94A.120(2). In entrusting the

sentencing court with those discretionary decisions and the

fact-finding underlying them, Washington did not violate the

Constitution.

A. Apprendi v. New Jersey Applies Only When A Defen-

dant’s Exposure To Increased Punishment Depends On

The Finding Of A Fact Specified By The Legislature

1. The sentencing court has broad authority to find

facts and make judgments bearing on an appro-

priate punishment

This Court has long approved sentencing schemes allow-

ing the judge to find facts bearing on the appropriate

sentence for a crime of which the defendant has been found

guilty, and to make a qualitative judgment about the appro-

priate punishment within the authorized range. See Wil-

liams v. New York, 337 U.S. 241 (1949). In Williams, the

sentencing judge concluded that a defendant who had been

found guilty of first-degree murder had sufficient culpability

to warrant the death penalty. The sentencing court made its

judgment about the appropriate level of punishment based

on facts contained in a presentence report that had not been

presented in open court or found by the jury. See id. at 242-

245. The Court held that this sentencing procedure complied

with the requirements of due process. Jd. at 252. The Court

explained that there has been a long tradition in this country

“under which a sentencing judge could exercise a wide dis-

cretion in the sources and types of evidence used to assist

him in determining the kind and extent of punishment to be

imposed within limits fixed by law.” Jd. at 246. The Court

thus held that a sentencing judge should not be “denied an

opportunity to obtain pertinent information by a require-

ment of rigid adherence to restrictive rules of evidence

licable to the trial.” Jd. at 247.

Pe tatene the Court has repeatedly reaffirmed that

a trial judge may constitutionally be entrusted to make a

judgment about what level of punishment is appropriate

within the authorized range. In “making that determination,

a judge may appropriately conduct an inquiry broad in scope,

largely unlimited either as to the kind of information he may

consider, or the source from which it may come.” United

States v. Tucker, 404 U.S. 443, 446 (1972). The judge may

consider “a wide variety of factors in addition to evidence

bearing on guilt.” Wisconsin v. Mitchell, 508 U.S. 476, 485

(1993); see, e.g., United States v. Watts, 519 U.S. 148, 157

(1997) (per curiam) (conduct of which defendant was acquit-

ted); Witte v. United States, 515 U.S. 389, 397-401 (1995)

(uncharged conduct); United States v. Grayson, 438 U.S. 41,

49-54 (1978) (defendant’s false testimony at trial). The Court

has also repeatedly confirmed that the sentencing judge may

find the facts that support his assessment of the appropriate

level of punishment by a preponderance of the evidence

rather than proof beyond a reasonable doubt. Watts, 519

U.S. at 156; Nichols v. United States, 511 U.S. 738, 747

(1994); McMillan v. Pennsylvania, 477 U.S. 79, 84-93 (1986).

2. Constitutional limits on sentencing exist to

preclude circumvention of Fifth and Sixth

Amendment guarantees

There are nevertheless constitutional limits on the role

that a legislature may assign to judges at sentencing. The

Constitution requires that a defendant’s guilt of each ele-

ment of a crime be found by a jury, based on proof beyond a

reasonable doubt. United States v. Gaudin, 515 U.S. 506,

510 (1995). A legislature cannot evade that requirement by

redesignating the elements of crimes as facts that a judge

must find at sentencing before the judge is authorized to im-

pose particular types or levels of punishment. See Apprendi

v. New Jersey, 530 U.S. 466 (2002); Jones v. United States,

526 U.S. 227, 243-244 (1999).

In Apprendi, this Court implemented that principle by

holding that, “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the pre-

scribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” 530 U.S. at 490. The

Court explained that, when the legislature specifies a fact

that, if found, triggers “an increase beyond the maximum

authorized statutory sentence, it is the functional equivalent

of an element of a greater offense than the one covered by

the jury’s guilty verdict.” Jd. at 494 n.19.

In Ring v. Arizona, 536 U.S. 584 (2002), the Court applied

Apprendi to Arizona’s capital sentencing scheme. Arizona

law authorized imposition of the death penalty for murder,

but a defendant found guilty by a jury of first-degree murder

could not be sentenced to death unless the sentencing court

made an additional factual finding on one of several, legisla-

tively specified aggravating factors. Jd. at 597, 603-604.

Ring held that, under Apprendi, a finding on such a legisla-

tively specified aggravating factor necessary to support a

death sentence must be made by a jury. /d. at 609.

The Court reasoned that Apprendi requires that, “[iJf a

State makes an increase in a defendant’s authorized punish-

ment contingent on the finding of a fact, that fact—no matter

how the State labels it—must be found by a jury beyond a

reasonable doubt.” Ring, 536 U.S. at 602. Absent the factual

finding specified by the legislature, the defendant is not

exposed to the higher punishment, except in a purely formal

sense. See id. at 603-604. The fact, however labeled, is thus

“the functional equivalent of an element of a greater offense

than the one covered by the jury’s guilty verdict.” Jd. at 605

(quoting Apprendi, 530 U.S. at 494 n.19).

“Because Arizona’s enumerated aggravating factors oper-

ate as ‘the functional equivalent of an element of a greater

offense,’” the Court held, “the Sixth Amendment requires

that they be found by a jury.” Ring, 536 U.S. at 609 (quoting

Apprendi, 530 U.S. at 494 n.19). Ring thus makes clear that,

for purposes of the Apprendi rule, the “prescribed statutory

maximum” is the maximum sentence that may be imposed

without the finding of any additional legislatively specified

fact.

3. Apprendi is limited to statutorily required factual

determinations

Neither Apprendi nor Ring alters the principle, reflected

in Williams and later cases, that a judge may make qualita-

tive judgments about the appropriate level of punishment

within the range prescribed by statute, and those judgments

may be based on facts found by the judge himself by a

preponderance of the evidence. To the contrary, Apprendi

explained that it is not “impermissible for judges to exercise

discretion—taking into consideration various factors relating

both to offense and offender—in imposing a judgment within

the range prescribed by statute.” 530 U.S. at 481. Nor do

Apprendi and Ring mean that the procedural requirements

specified in Apprendi are mandated whenever the legisla-

ture places limits on the sentencing judge’s discretion to

impose punishment.

For example, when the legislature specifies that a par-

ticular factual finding triggers a mandatory minimum sen-

tence, that fact may be found by the judge at sentencing

based on a preponderance of the evidence, even though the

finding requires the judge to impose a higher sentence

within the statutorily authorized range. See Harris v.

United States, 536 U.S. 545, 568-569 (2002). Similarly, a

factual finding that mitigates the available punishment by

requiring the judge to impose a lower sentence also may be

made by the sentencing judge by a preponderance of the

evidence. See Apprendi, 530 U.S. at 491 n.16. And the legis-

lature may require a sentencing judge to consider certain

facts when imposing a sentence within the authorized range,

such as uncharged criminal conduct committed by the defen-

dant, and still provide for the judge to determine the exis-

tence of those facts by a preponderance of the evidence. See

‘itte, 515 U.S. at 397-401. Apprendi applies only when the

finding of a legislatively specified “fact” is essential to

increase the “statutory maximum.” See 530 U.S. at 494.

Imposing Apprendi’s requirements only when the legisla-

ture has made a defendant’s exposure to increased punish-

ment contingent on findings of facts that the legislature itself

specifies vindicates Apprendi’s animating constitutional

values. The Sixth Amendment right to trial by jury, and the

due process right to insist on rigorous proof to establish guilt

of an offense, are fully protected when there must be a jury

finding beyond a reasonable doubt on the facts that establish

the maximum punishment to which a defendant is exposed.

If the legislature realizes that any defendant convicted of a

particular offense may receive the maximum punishment

associated with the jury’s verdict, the democratic process

itself will restrain the legislature from reducing the jury’s

role to “low-level gatekeeping.” Jones, 526 U.S. at 244.

“(S)tructural democratic constraints exist to discourage

legislatures from enacting penal statutes that expose every

defendant convicted of [a particular crime] to a maximum

sentence exceeding that which is, in the legislature’s judg-

ment, generally proportional to the crime.” Apprendi, 530

U.S. at 490-491 n.16.

B. Apprendi Does Not Apply To Upward Departure Deter-

minations Under The Washington Guidelines System

1. A defendant’s exposure to a sentence above the

presumptive range is not contingent on the court’s

finding of legislatively specified facts

Apprendi does not apply to upward departure deter-

minations under the Washington guidelines system because

such departures are not conditioned on the finding of legis-

latively specified facts. Even without finding any particular

fact identified by the legislature, a judge has discretion to

impose a sentence up to the statutory maximum for the of-

fense, when he identifies “substantial and compelling rea-

sons.” And no particular factual finding specified by the leg-

islature automatically exposes the defendant to a sentence

16 -

above the standard range; the judge must always make a

qualitative judgment that such a sentence is justified. The

presumptive sentencing range under the Washington system

thus does not set a “statutory maximum” for purposes of

Apprendi.

a. Under Washington law, a sentencing court can sup-

port its decision to impose a sentence above the presumptive

range—and up to the statutory maximum established by the

offense of conviction—based on a virtually unlimited set of

facts. As a result, the statute effectively gives the judge

discretion to decide what facts might support a higher

sentence, and to find those facts, in a fashion comparable to

the discretion of the sentencing judge in Williams to find

and consider facts bearing on an appropriate sentence. The

outer boundary for the judge is not the presumptive sen-

tencing range, but the statutory maximum specified for the

offense in the Washington Revised Code.

The statute affords the judge sentencing discretion by

giving the judge legal authority to impose a sentence above

the presumptive range up to the maximum for the offense

specified by Washington Revised Code Chapter 9A.20 if, in

the court’s judgment, there are substantial and compelling

reasons that justify an exceptional sentence. Wash. Rev.

Code § 9.94A.120(2), (13). The Washington legislature “rec-

ognized that ‘not all exceptional fact patterns can be

anticipated,’ * * * and that the trial court must tailor the

sentence to the facts of each case.” State v. Nordby, 723 P.2d

1117, 1118 (Wash. 1986) (quoting State of Washington, Adult

Sentencing Guidelines Manual (1997) (Wash. Guidelines

Manual) § 9.944.390, comment.) Therefore, although the

legislature listed some “aggravating circumstances” that

“the court may consider in exercising its discretion” to

conclude that an exceptional sentence is justified, the listed

facts “are illustrative only and are not intended to be

-———

— ————— ——

exclusive reasons for exceptional sentences.” Wash. Rev.

Code § 9.944.390.

The statute does channel the judge’s exercise of discre-

tion. Because an exceptional sentence is reserved for atypi-

cal cases, the judge cannot rely on the elements of the of-

fense or other facts that have already been taken into ac-

count in setting the presumptive range. See Fisher, 739 P.2d

at 686. In addition, under the “real facts” rule, the judge

generally may not rely on facts that establish the elements of

a more serious or additional crime. See Pet. App. 16a; Wash.

Rev. Code § 9.94A.370(2). But aside from those narrow

restrictions, the facts that may support a sentence above the

presumptive range are unlimited and largely unspecified.

The Washington scheme thus preserves the sentencing

court’s traditional discretion to fix an appropriate sentence

within defined statutory maximum terms. When a legisla-

ture creates broad sentencing ranges for particular offenses,

as Washington has done, it necessarily contemplates that a

spectrum of cases will arise under a particular statute and

that courts will sentence defendants according to their indi-

vidual culpability in light of all of the varied circumstances of

the case. A guidelines system with a departure mechanism,

such as Washington’s, structures the district court’s actions

and makes more explicit the legislature’s expectation that

harsher sentences are reserved for more serious offenders,

while more lenient sentences are reserved for less serious

offenders. But the system also respects the unique judicial

capacity, borne of experience with a wide variety of cases, to

assess at sentencing whether particular facts, not antici-

pated by the legislature, warrant a sentence different from

the standard range.

Because the legislature has not itself specified the set of

facts that expose a defendant to a sentence above the pre-

sumptive range, the presumptive range does not operate as

a statutory maximum. That maximum remains the maxi-

mum established in the statutes grading the severity of the

offense and specifying maximum terms for each grade. As a

result, determinations to impose an exceptional sentence

above the presumptive range are not subject to Apprendi.

b. Reinforcing the conclusion that the Washington

scheme is designed to preserve the sentencing court’s discre-

tion is that a defendant is exposed to a sentence above the

presumptive range not by factual findings themselves, but

by the sentencing court’s judgment that those facts justify

an exceptional sentence. That qualitative judgment is not a

“fact” within the coverage of Apprendi. See Apprendi, 530

U.S. at 482-483 (noting the “novelty of a legislative scheme

that removes the jury from the determination of a fact that,

if found, exposes the criminal defendant to a penalty ex-

ceeding the [otherwise-applicable] maximum”) (emphasis

altered); id. at 483 (“practice must at least adhere to the

basic principles undergirding the requirements of trying to a

jury all facts necessary to constitute a statutory offense”)

(emphasis added); id. at 490 (“[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-

mitted to a jury, and proved beyond a reasonable doubt.”)

(emphasis added).

The Washington Sentencing Reform Act authorizes the

court to “impose a sentence outside the standard sentence

range” when the court determines “that there are substan-

tial and compelling reasons justifying an exceptional sen-

tence.” Wash. Rev. Code § 9.94A.120(2). That conclusion is

ultimately a qualitative judgment rather than a factual

finding. After the judge determines that the facts that

might support a departure have not already been taken into

account in setting the presumptive range, see Fisher, 739

P.2d at 686, the judge must assess, taking into consideration

the purposes of the Sentencing Reform Act, whether the

overall circumstances are sufficiently “atypical” that they

provide “substantial and compelling” reasons “justifying” an

“exceptional” sentence. Wash. Rev. Code § 9.94A.120(2);

Wash. Guidelines Manual § 9.944.390, comment. In so do-

ing, the sentencing judge is making an intangible evaluation

of the nature and significance of particular facts.’

Although the sentencing court must support its judgment

that an exceptional sentence is justified with factual findings,

those findings alone do not authorize the higher punishment.

The Act makes clear that the determination whether sub-

stantial and compelling reasons justify an exceptional sen-

tence is a discretionary one. The Act provides that the sen-

tencing court “may consider” the listed aggravating circum-

stances and a wide range of unspecified factors “in the exer-

cise of its discretion to impose an exceptional sentence.”

Wash. Rev. Code § 9.944.390. See State v. Perez, 847 P.2d

532, 535 (Wash. Ct. App.) (noting that departure authority

preserves “judicial discretion to fashion individualized sen-

tences when the facts of a particular case demand it”), re-

view denied, 863 P.2d 74 (Wash. 1993). The judge need not

conclude that there are “substantial and compelling reasons

justifying an exceptional sentence” merely because he finds

a listed aggravating circumstance. The judge may still

determine that the other circumstances of the case and the

purposes of the Act lead to the conclusion that a sentence

within the standard range is appropriate. See State v. Arm-

strong, 723 P.2d 1111, 1114 (Wash. 1986) (weighing aggravat-

ing and mitigating factors in reviewing whether exceptional

3 Recognizing that the determination whether “substantial and

compelling” reasons “justify{]” an exceptional sentence involves a judg-

ment and not a factual finding, the Washington courts review that deter-

mination de novo rather than under a clearly erroneous standard. See

Nordby, 723 P.2d at 1119. In contrast, appellate courts review the

underlying factual findings under the clearly erroneous standard, Nordby,

723 P.2d at 1119, and they review whether the exceptional sentence 1m-

posed is “clearly excessive or clearly too lenient” under an abuse of discre-

tion standard. Wash. Rev. Code § 9.944.210(4)(b); Gore, 21 P.3d at 277.

sentence was justified). The judge may also find compelling

reasons justifying an exceptional sentence based on a group

of facts, each of which considered alone would not justify a

departure. See Perez, 847 P.2d at 535-536. In analyzing such

diverse fact patterns, the sentencing court is making the sort

of quintessentially discretionary judgments that have long

characterized the sentencing process.

2. Upward departure determinations are fundamen-

tally different from the factual findings at issue in

Ring

Because an upward departure determination under the

Washington guidelines is not conditioned on a factual finding

specified by the legislature, petitioner is incorrect that a

departure determination is “just like the procedure that this

Court invalidated in Ring.” Br. 17. Ring, unlike this case,

involved the classic situation in which Apprendi is applicable

—the Arizona legislature made a defendant’s exposure to in-

creased punishment contingent on the finding of legislatively

specified facts.

In Ring, a defendant convicted of capital murder could not

legally be sentenced to death unless the judge found one of

the aggravating factors enumerated by the Arizona statute.

Absent the judge’s finding of one of those legislatively

specified facts, the highest penalty that could legally be im-

posed was life imprisonment. -In that circumstance, life im-

prisonment, rather than the death penalty, was the true sta-

tutory maximum for murder without an aggravating factor.

Here, in contrast, there is no legislatively specified set of

facts one of which must be found before a defendant can be

sentenced above the presumptive sentencing range. The

Washington statute leaves room for judgment by the sen-

tencing court that an unspecified fact exists that makes the

case atypical. And there is no legislatively specified set of

facts that mandates exposure to an increased sentence. In

contrast to Ring, where the legislature itself had made the

judgment about what facts justified a higher punishment,

and the judge was only finding whether one of those facts

existed in the particular case, here, the determination

whether a particular set of circumstances warrants a longer-

than-usual sentence requires the judge to exercise his own

judgment that the case involves substantial and compelling

reasons justifying an exceptional sentence.

Put differently, in Ring, “Arizona’s enumerated aggravat-

ing factors operate[d] as ‘the functional equivalent of an ele-

ment of a greater offense.’” Ring, 536 U.S. at 609 (quoting

Apprendi, 530 U.S. at 494 n.19); see Sattazahn v. Pennsyl-

vania, 537 U.S. 101, 111-112 (2008) (plurality opinion) (“The

underlying offense of ‘murder’ is a distinct, lesser included

offense of ‘murder plus one or more aggravating circum-

stances.’”). The Arizona legislature itself had created a hier-

archy of crimes that were differentiated by specific factual

showings and that carried different punishments. There is

no comparable hierarchy of crimes created by the Wash-

ington guidelines system. The many and unspecified bases

for upward departure are not “elements” in an infinite series

of “greater offenses” than the crimes subject to sentencing in

the standard range.

3. Upward departure determinations closely re-

semble the traditional role of judges in sentencing

As this Court hag noted in describing the departure

process under the federal Sentencing Guidelines, a court’s

decision to depart from the Washington guidelines “embod-

ies the traditional exercise of discretion by a sentencing

court.” Koon v. United States, 518 U.S. 81, 98 (1996); see

Perez, 847 P.2d at 535. Upward departure determinations

thus closely resemble the judicial role in sentencing that this

Court approved in Williams and has repeatedly reaffirmed,

including in Apprendi, 530 U.S. at 481.

The determinations made by sentencing judges under the

Washington guidelines system differ from the Williams

paradigm in certain respects. The legislature has to some

degree constrained the judge’s exercise of his judgment

about what level of punishment is appropriate. The legisla-

ture has identified a narrower range within the broad range

otherwise allowed by law that the judge must use as a

starting point in selecting the appropriate sentence. And the

legislature has required the judge to stay within that range

unless he makes a judgment that substantial and compelling

reasons make the case atypical enough to justify departure

from that range. But not every limitation on the discretion

of the sentencing court triggers the procedural requirements

of Apprendi. Apprendi’s requirements apply only when the

legislature has specified that one or more identified facts are

necessary to authorize the judge t: impose a higher punish-

ment. See pp. 14-15, supra. Apprendi’s requirements do not

apply when, as in this case, the legislature has left the judg-

ment about which facts justify a more serious punishment

with the sentencing judge, where that judgment has

traditionally rested.

4. Allowing judges to make departure determinations

based on their own fact-finding does not

undermine the constitutional values protected by

Apprendi

| Petitioner makes three policy arguments to justify apply-

ing Apprend?’s procedures to upward departure determina-

tions, but each of those arguments is mistaken. First, peti-

tioner incorrectly contends that Apprendi requires that

legislatures “treat every fact they deem essential to a given

prison term with equal gravity.” Br. 21. Apprendi does not

impose a requirement of that breadth. The legislature may

specify many effects that a certain fact shall have on punish-

ment without triggering Apprendi’s requirements. Under

Harris, the legislature may constitutionally assign to the

sentencing judge a factual finding that requires the judge to

impose a certain minimum punishment. See 536 U.S. at 568-

569. If the legislature prescribes that the minimum punish-

ment triggered by the factual finding is the maximum

punishment allowed by law, then that factual finding, made

by the sentencing judge by a preponderance of the evidence,

will dictate the precise extent of the defendant’s punish-

ment. And Apprendi itself indicates that the legislature may

require that a certain fact mitigate the available punishment

to a specified degree without providing a jury determination

of that fact. See 530 U.S. at 491 n.16.

More fundamentally, the Washington legislature did not

deem the facts that supported the departure decision here to

be “essential” to the level of the defendant’s punishment.

The sentencing judge could have determined that a depar-

ture was justified without finding those facts or any other

legislatively specified facts—the judge was free to rely on

his own discretion in deciding which facts were decisive on

the departure issue. And the factual findings alone were not

sufficient to authorize the departure; what authorized the

departure was the sentencing court’s judgment that those

facts—considered in light of all the circumstances, the pre-

sumptive sentencing range, and the purposes of the Sertenc-

ing Reform Act—provided substantial and compelling rea-

sons justifying an exceptional sentence.

Second, petitioner contends that Apprendi is “designed to

ensure that any finding that subjects a defendant to an addi-

tional loss of liberty must be made beyond a reasonable

doubt.” Br. 11. That contention too is mistaken. Factual

findings made by the sentencing judge by a preponderance

of the evidence, while exercising his discretion to impose

sentence within the range specified by statute, can subject a

defendant to a significantly greater loss of liberty than the

defendant would have suffered absent those findings. F'ac-

tual findings that trigger a mandatory minimum sentence

can have the same effect.

To the extent that petitioner means that any factual find-

ing must be made by a jury beyond a reasonable doubt if, by

legislative mandate, the finding increases a defendant’s

maximum exposure, see Apprendi, 530 U.S. at 490, 494, that

principle is honored in Washington’s system. The findings

that by law are necessary and sufficient to expose the defen-

dant to the prescribed statutory maximum are the elements

of the offense. The responsibility for finding the defendant

guilty of those elements, and thus of the offense whose grade

determines the sentencing range, rests with the jury.

Third, petitioner contends (Br. 25) that _ »prendi is de-

signed to guarantee that someone accused of « crime be able

to predict with certainty the maximum punishment to which

he is exposed by pleading guilty. That too is not really what

Apprendi is about. Even when a sentencing judge may

make a factual finding that authorizes increased punishment,

the law puts the defendant on notice that he will be exposed

to the higher punishment if the judge makes the required

finding, and the standard guilty plea colloquy makes that

consequence explicit. Petitioner, in particuler. can make no

claim that he was blindsided about the availaoi« punishment

in this case. Both the plea agreement and the judge at the

plea hearing informed petitioner that he could receive a sen-

tence above the presumptive range if the sentencing judge

found that compelling reasons justified an exeptional sen-

tence. And, because of the nature of the departure author-

ity, petitioner could not expect that the absence of any par-

ticular fact would insulate him from that higher punishment.

He thus occupied the same position as a defendant who

pleads guilty to a kidnapping offense carrying a maximum

sentence of ten years of imprisonment and is aware that in

the ordinary case the judge imposes sentences in the middle

of that range, but in factually egregious cases the judge

imposes sentences at or near the maximum term. In that

regime, as in the Washington system, the defendant is on

notice at the time of his plea that the judge’s authority to

find facts and exercise discretion will determine how close to

the maximum the sentence ultimately will be.

C. Applying Apprendi To Upward Departures Under The

Washington System Would Raise Questions About The

Extent To Which Apprendi Applies To Other

Guidelines Systems

Many guidelines systems have upward departure pro-

visions similar to those in the Washington system. See

American Law Institute, Model Penal Code: Sentencing Re-

port 52, 55-56 (2003) (ALI Report) (available at www.ali.org

under ALI Projects Online). For example, under the United

States Sentencing Guidelines (Guidelines), a sentencing

judge may impose a sentence above the guidelines range if

the judge finds “that there exists an aggravating hl li

circumstance of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in for-

mulating the guidelines that should result in a sentence dif-

ferent from that described.” 18 U.S.C. 3553(b)(1) (as

amended Apr. 30, 2003). Like the Washington system, the

Guidelines provide a list of factors that may warrant depar-

ture from the presumptive sentencing range but also ex-

pressly authorize the court to depart upward based on “a cir-

cumstance that the Commission has not identified in the

Guidelines.” Guidelines § 5K2.0(a)(2) (as amended Oct. 27,

2003).

A holding that Apprendi applies to the departure deter-

mination in this case would raise the question whether

Apprendi also applies to departure determinations in other

guidelines systems. Even more substantial questions would

arise if the Court rules that Apprendi applies here based on

petitioner’s theory that the statutory maximum for purposes

of Apprendi is the punishment that would be imposed

without any findings of fact other than the “‘facts reflected

in the jury verdict alone’ or the guilty plea alone.” Br. 17

(quoting Apprendi, 530 U.S. at 483). If the “facts reflected in

the jury verdict alone” are the elements of the offense, peti-

tioner’s theory would mandate the application of Apprendi

to any facts, other than the offense elements, that increase

the defendant’s punishment.

Such a rule would have profound consequences for the

federal Guidelines. As explained more fully below, facts

other than the elements of the offense enter into almost all of

the calculations under the Guidelines, beginning with the

most basic calculations for determining the offender’s pre-

sumptive sentencing range. A decision in favor of petitioner

could thus raise a serious question about whether Apprendi

applies to myriad factual determinations under the Guide-

lines.

1. The federal Sentencing Guidelines operate differ-

ently from the Washington system

There are significant distinctions between the Washington

system and the federal Guidelines that might justify treating

them differently for purposes of Apprendi.

Most obviously, unlike the Washington system, the fed-

eral Guidelines are not enacted by a legislature but are

promulgated by the Sentencing Commission, “an indepen-

dent commission in the judicial branch of the United States.”

28 U.S.C. 991(a); see Mistretta v. United States, 488 U.S. 361,

385 (1989). The Guidelines are thus not statutes but sen-

tencing rules, the unique product of a special and limited

delegation of authority to the Commission. “Congress

granted the Commission substantia] discretion in formulat-

ing guidelines.” Jd. at 377. Because Congress entrusted to

the Commission the specification of the numerous facts that

authorize differing punishments under the Guidelines, there

is a strong argument that the Guidelines do not implicate the

concerns addressed by Apprendi. As described above, those

concerns arise only when the legislature itself dictates the

facts that control a defendant’s increased exposure to pun-

ishment, thereby effectively creating enhanced crimes. See

pp. 14-15, supra. There is thus good reason to conclude that

the Guidelines “do not * * * establish{) minimum and

maximum penalties” for crimes. Mistretta, 488 U.S. at 396.

Another significant difference between the Washington

system and the federal Guidelines also suggests that the

federal Guidelines do not establish statutory maxima for

criminal offenses. The Washington system sets standard

sentencing ranges based on the “actual crime of conviction”

(and the defendant’s criminal history). See Wash. Guide-

lines Manual § 9.944.320 and comment. In the federal sys-

tem, in contrast, the offense of conviction does not dictate a

defendant’s sentencing range. Instead, the district judge

makes a wide variety of factual determinations taking into

account not only the conduct that constitutes the offense but

all of the defendant’s conduct relevant to the offense. Those

determinations result in an offense level, which, along with

the defendant’s criminal history score, produces the pre-

sumptive sentencing range. See Nichols v. United States,

511 U.S. 738, 740 n.3 (1994).

Although a defendant’s offense of conviction determines

the offense guideline that a court must initially consult, see

Guidelines §§ 1B1.1(a) and 1B1.2(a), a cross-reference may

require use of a different offense guideline if the underlying

conduct so justifies. E.g., id. § 2B3.1(c). The applicable

guideline then prescribes a base offense level, which is ad-

justed up or down by specific offense characteristics, relating

to the way in which the offense was carried out (e.g.,

whether a weapon was used during a drug offense (id.

§ 2D1.1.(b)(1))). The offense level may be further modified

based on the nature of the victim, the defendant’s role in the

offense, and whether the defendant obstructed justice. Jd.

Ch. 3.

In making all of those adjustments to the offense level, the

. Guidelines require the sentencing court to consider conduct

that is part of the “real” offense (7.e., the defendant’s actual

conduct), even if not part of the charged offense of convic-

tion. See Guidelines Ch. 1, Pt. A, intro. comment. 4(a)

(Guidelines embody a “charge offense system” with a “signi-

ficant number of real offense elements”). The “relevant con-

duct” guideline provides that, in determining a defendant’s

guidelines range, the court must consider “all acts and

omissions committed, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by the defendant” and

“all reasonably foreseeable acts and omissions” of his con-

federates “that occurred * * * in preparation for [the]

offense, or in the course of attempting to avoid detectio: or

responsibility for that offense.” Jd. § 1B1.3(a)(1). in

addition, for offenses for which the Guidelines “require

grouping of multiple counts”—drug offenses, for example—

“relevant conduct” includes all acts for which the defendant

could be held responsible “that were part of the same course

of conduct or common scheme or plan as the offense of

conviction.” Jd. § 1B1.3(a)(2). Relevant conduct enters into

the calculation of the offense level from the earliest stage

—even the base offense level may vary depending on facts

about how the offense was committed that are not elements

of the offense. See id. § 1B1.3(a).

Thus, the presumptive sentencing range under the Guide-

lines is not derived from the offense of conviction; rather. it

flows from a multitude of factors that have typically veen

considered in sentencing, such as the defendant’s “role in the

offense, the presence of a gun, or the amount of money

actually taken.” Guidelines Ch. 1, Pt. A, intro. comment.

4(a). Because the sentencing range under the Guidelines

does not follow from the offense of conviction, the top of the

range does not function as a “statutory maximum” for the

offense.

Rather than set statutory maxima, the Guidelines seek to

channel sentencing judges’ exercise of discretion within the

statutory maxima prescribed by Congress in the United

States Code. The Guidelines “do no more than fetter the

discretion of sentencing judges to do what they have done

for generations—impose sentences within the broad limits

established by Congress.” Mistretta, 488 U.S. at 396. The

Guidelines direct judges to consider factors that sentencing

judges have always had discretion to consider and establish

presumptive sentencing ranges based on those factors. See

Watts, 519 U.S. at 152; Witte, 515 U.S. at 402. Indeed, in

formulating the Guidelines, the Sentencing Commission can-

vassed prior sentencing practice and attempted to identify :

and to assign weights to all the factors that judges tradi-

tionally used in determining appropriate sentences. See

United States Sentencing Commission, Supplementary Re-

port on the Initial Sentencing Guidelines and Policy State-

ments 16-17 (1987). Because it was not possible to identify

and include in the Guidelines all the factors that might

appropriately bear on sentencing in a particular case, the

Commission also included a flexible departure authority. Jd.

at 17; Guidelines Ch. 1, Pt. A, intro. comment. 4(b). There is

good reason to conclude that the Guidelines are not subject

to Apprendi, in which the Court reaffirmed the authority of

“judges to exercise discretion—taking into consideration

various factors relating both to offense and offender—in im-

posing a judgment within the range prescribed by statute.”

530 U.S. at 481 (citing Williams, 337 U.S. at 246).

2. A decision invalidating Washington’s departure

mechanism would raise questions about the

federal Sentencing Guidelines’ constitutionality

It is nonetheless not certain that this Court would ulti-

mately conclude that the differences between the Washing-

ton system and the federal Guidelines are of constitutional

magnitude. The Sentencing Commission “is fully account-

able to Congress, which can revoke or amend any or all of

the Guidelines as it sees fit.” Mistretta, 488 U.S. at 393-394.

Congress has in fact exercised its authority to amend the

Guidelines. See PROTECT Act, Pub. L. No. 108-21, § 401(b),

(g), and (7), 117 Stat. 668-669, 671-673 (Apr. 30, 2003). More-

over, the Sentencing Commission exercises authority dele-

gated by Congress, and the Guidelines are binding legisla-

tive rules. See Stinson v. United States, 508 U.S. 36, 42, 44-

45 (1993). Thus, it is not entirely clear that the admini-

strative nature of the Guidelines will insulate them from

Apprendi.

In addition, although Guidelines sentencing ranges cannot

be viewed as establishing statutory maxima, it is possible to

identify the maximum punishment that would be permitted

under the Guidelines if one could consider only those facts

constituting the elements of a particular offense (and the de-

fendant’s criminal history). To do so would involve ignoring

most of the Guidelines’ provisions and applying the Guide-

lines differently from the way they were intended to work.

But that artificially constructed sentencing range could

theoreticaily be treated as establishing a statutory maximum

for purposes of Apprendi. If this Court pursued that

approach, however, almost all the factual findings required

to apply the Guidelines according to their terms would be

covered by Apprendi. As explained more fully below, that

would create enormous practical problems for application of

the Guidelines and could lead to their abandonment.

D. Application Of Apprendi To Guidelines Determina-

tions Would Undermine Sentencing Reform Efforts

If this Court were to hold that Apprendi applies to the

many factual determinations made under sentencing guide-

lines systems, the use of such systems would become cum-

bersome and potentially harmful to criminal defendants.

Guidelines systems might well prove to be unworkable.

Legislatures would then be forced to return either to deter-

minate sentences that do not allow room for individualization

of punishment or to indeterminate sentencing systems,

which have serious shortcomings, including unjustified dis-

parities in the treatment of similarly situated offenders.

1. Applying Apprendi to guidelines sentencing would

create significant problems

There would be significant administrative difficulties if

the myriad facts that enter into guidelines calculations had

to be found by juries beyond a reasonable doubt (and, in

federal cases, charged in indictments, see United States v.

Cotton, 535 U.S. 625, 627 (2002)). Prosecutors would have to

anticipate most guidelines adjustments and investigate the

facts relevant to them before indicting, and juries would

have to work through complex special verdict forms cover-

ing multiple issues.

The number of special findings that might be required

would be enormous. For example, the basic federal sentenc-

ing guideline for robbery requires more than a dozen dif-

ferent factual determinations about the details of the offense,

such as whether the property of a financial institution or

post office was involved; whether a firearm was possessed,

used, or discharged; whether people were injured and to

what degree; and how great a financial loss was involved.

See Guidelines § 2B3.1. After those factual findings are

made, the Guidelines require a half dozen or more deter-

minations about the victim, such as whether the defendant

knew or should have known that the victim was vulnerable.

See id. Ch. 3, Pt. A. The Guidelines then require another

half dozen or so determinations about the defendant’s role in

the offense, such as whether he played a supervisory or

leadership role, and, if so, to what degree, and whether the

defendant abused < position or trust or used a special skill in

committing or concealing the offense. Jd. Ch. 3, Pt. B. Fur-

ther factual determinations are also required, such as

whether the defendant obstructed justice and whether he

recklessly endangered someone in seeking to avoid arrest.

Id. Ch. 3, Pt. C. :

Some of those findings would have to be made at a sen-

tencing proceeding separate from the underlying trial

because they involve conduct occurring at or after trial, such

as perjury. Indeed, in the federal system, reliance on post-

indictment conduct might have to be abandoned altogether

since it is difficult to see how that conduct could be charged

in the indictment. Even when bifurcated proceedings were

not required by the nature of the facts involved, bifurcation

might be thought advisable (even if not constitutionally

required) out of fairness to the defendant. Otherwise, the

jury’s decision on guilt might be skewed by consideration of

facts that bear only on the appropriate punishment. As this

Court has noted, “[a] defendant might not, for example, wish

to simultaneously profess his innocence of a drug offense and

dispute the amount of drugs allegedly involved.” Monge v.

California, 524 U.S. 721, 729 (1998). But the proliferation of

bifureated proceedings would impede the efficient use of

judicial resources.

Other problems would also arise. Jurors might engage in

compromise verdicts or nullification in an effort to control

the sentence, even if they were not told of the sentencing

consequences of their actions. And appellate review of guide-

lines determinations would be sharply restricted, thus

depriving the system of the “greater degree of consistency in

sentencing” that appeals can produce. See United States v.

DiFrancesco, 449 U.S. 117, 148 (1980).*

* Appeals by the defendant would probably be limited to the deferen-

tial review given to the jury’s finding of guilt in criminal cases. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (inquiry is whether, “after

2. The undermining of guidelines systems would

have substantial costs for sentencing reform

The overall burdens on the judicial system of applying

Apprendi would likely push guidelines systems past the

breaking point. If so, legislatures would be forced to abandon

guidelines as a sentencing option. That would be an ex-

tremely unfortunate and unwarranted result.

Guidelines systems were developed in the 1980s and 1990s

in response to problems with the indeterminate sentencing

regimes that dominated sentencing in the United States for

most of the twentieth century. One of the most serious

criticisms of indeterminate sentencing was that it resulted in

significant disparities in the sentences imposed on similarly

situated defendants, including disparities based on race, eth-

nicity, and gender. See Arthur W. Campbell, Law of Sen-

tencing § 1:3, at 9-10 (2d ed. 1991). Critics not only assailed

the lawlessness of indeterminate sentencing, but noted that

it obscured the actual punishments being imposed, provided

no mechanism to implement a systemic sentencing policy,

and did not allow legislatures to control the need for prison

resources. See id. at 10-12; AL] Report 64-65, 66-68, 72 &

n.90, 74-75.

Indeterminate sentencing had once represented a valu-

able reform in response to the determinate sentences

mandated for felony offenses early in the nation’s history.

Determinate sentencing does not allow for any individualiza-

tion of punishment, despite major differences in the way

crimes are committed. The nation’s experience with deter-

minate sentences showed that, in sentencing, “justice gen-

viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt”). Appeals by the government of jury “ac-

quittals” on guidelines factors would probably be barred by double jeo-

pardy principles. Cf. Sattazahn v. Pennsy!vania, 537 US. 101, 111-112

(2003) (plurality opinion).

erally requires consideration of more than the particular acts

by which the crime was committed and that there be taken

into account the circumstances of the offense together with

the character and propensities of the offender.” Pennsylva-

nia ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937). Guide-

lines systems offer a mechanism for minimizing the dis-

parities and discrimination inherent in indeterminate sen-

tencing while providing the proportionality lacking in deter-

minate sentencing.

Although guidelines systems have generated some criti-

cism, most of that criticism has been directed at the federal

guidelines and their particular characteristics; state guide-

lines systems have generally been favorably received. See

ALI Report 47-48, 115. And guidelines systems (particularly

those, like Washington’s, based on the model developed in

Minnesota in 1980, id. at 52) have been recognized as the

most promising means to eliminate the problems associated

with indeterminate sentencing without sacrificing indivi-

dualized punishment. See id. at 46-48.

In addition to the federal government, fifteen States have

adopted guidelines systems, and several more States are

considering such systems. ALI Report 47. The guidelines

approach has been endorsed by the American Bar Asso-

ciation and the Bureau of Justice Assistance of the United

States Department of Justice. See id. at 47 n.59. A guide-

lines system is also the leading contender for the centerpiece

of the ALI’s planned revision to the sentencing provisions of

the Model Penal Code. See id. at 4. Guidelines systems are

thus a prominent and expanding component of legislative

efforts to achieve order and fairness in sentencing. Protec-

tion of the constitutional values underlying Apprendi does

not require the Court to call into doubt the constitutionality

of that promising sentencing reform.

CONCLUSION

The judgment of the Washington Court of Appeals should

be affirmed.

Respectfully submitted.