Amicus Curiae Brief — United States v. Booker

DAG@Qm rm

Nos. 04-5272, 04-105, 04-104

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

Jimmy Bijou, United States,

Petitioner, Petitioner,

v. v.

United States. Ducan Fanfan.

United States.

Petitioner.

v.

Freddie J. Booker.

On Petitions for Writs of Certiorari

to the United States Courts of Appeals

for the Fourth and Seventh Circuits and

a Writ of Certiorari Before Judgment to the First Circuit

BRIEF AMICI CURIAE OF NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS

AND NATIONAL ASSOCIATION OF FEDERAL

DEFENDERS

David M. Porter, Co-Chair Thomas C. Goldstein

NACDL Amicus Committee (Counsel of Record)

801 I Street, 3rd Floor GOLDSTEIN & HOWE, P.C.

Sacramento, CA 95814 4607 Asbury PI... NW

(202) 237-7543

(Additional counsel

listed on inside cover.)

July 27, 2004

ee

Witson-EPes PrinTinG Co.. Inc. — (202) 789-0096 - WasnHinGcTon, D.C. 20001

Carol Brook

President, NAFD

55 East Monroe Street, Suite 2800

Chicago. IL 60603

Peter Goldberger

50 Rittenhouse Place

Ardmore, PA 19003

Martin S. Lederman

6027 Onondaga Rd.

Bethesda, MD 208

QUESTIONS PRESENTED

1. Whether a district court violates the Fifth and Sixth

Amendments by relying upon facts that increase the

maximum sentence available under the United States

Sentencing Guidelines (other than the fact of a prior

conviction) when those facts were ot charged in the

indictment and either found by the jury on proof beyond a

reasonable doubt or admitted by the defendant.

2. If the answer to the first question is “yes,” the

following question is presented: What role do the Sentencing

Reform Act, the Sentencing Guidelines, and Federal Rule of

Criminal Procedure 32 continue to play in federal criminal

sentencing?

TABLE OF CONTENTS

QUESTIONS PRESENTED...................-ccsseeseserensenenee ceeeenennnes i

TABLE OF CONTENTS...............00000000+++ cee il

TABLE OF AUTHORITIES. ....00000cccccccccccessssssssscesccccesssseeeeees ili

INTERESTS OF AMICT CURIAE .............cccccceeeeeeeeneneneenennenes l

ENED ________..-ccssssnsimnnnnssnnnsentmemensmmenmmnammmmmimmemaniammmaan |

1. The Court Should Reframe The Questions Presented. ....... 3

ll. The Court Should Grant Certiorari in Booker or

in No. 04-5263, Pineiro v. United States, Should

Also Grant Certiorari in No. 04-5272, Bijou v.

United States, and Should Deny the Petition for

Certiorari Before Judgment in Fanfan. ....................--» 8

CONCLUSION .......cccccccceseceeescessecccccccsssssccsscscsesescrenscessssssssoes 19

ill

TABLE OF AUTHORITIES

Cases

Almendarez-Torres v. United States, 523 U.S. 224 (1998)... 7

Apprendi v. New Jersey, 530 U.S. 466 (2000) .............. passim

Blakely v. Washington, 124 S. Ct. 2531 (2004)............. passin

Castillo v. United States, 530 U.S. 120 (2000)...........00000.0..... 7

Dames & Moore v. Regan, 453 U.S. 654 (1981).................. 13

Foley v. Carter, 449 U.S. 1073 (1981) ......cccccccccccccccceeeeees 13

Gratz v. Bollinger, 539 U.S. 244 (2003) .o.......cccccccccccceeeseees 14

Grutter v. Bollinger, 539 U.S. 306 (2003)............cccccccccneoeees 15

Iran National Airlines Corp. v. Maschalk Co.,

453 U.S. 919 (1981)............ aeitecinaettthtatiatanatiteemeatemueneanains 13

Jones v. United States, 526 U.S. 227 (1999) 000 7

Mistretia v. United States, 488 U.S. 361 (1989).......0000000.... 15

Mitchell v. United States, 526 U.S. 314 (1999) 0000. 12

Pineiro v. United States, 2004 U.S. App. LEXIS 14259

Be Ge crenmenerememmmnemeememememnmnennes passim

United States v. Ameline, 2004 U.S. App. LEXIS 15031

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United States v. Bijou, 92 Fed. Appx. 966 (CA4 2004) ....... 12

United States v. Cotton, 535 U.S. 625 (2002) © oovccccccccccseees |

United States v. Darwich, 337 F.3d 645 (CA6 2003)........... 18

United States v. Goodine, 326 F 3d 26 (CA1 2003),

cert. denied, 124 S. Ct. 1600 (2004) ee 18

United States v. Graham, 317 F.3d 262 (CADC 2003)........ 17

United States v. Khan, No. 02-CR-1242 (JBW),

2004 U.S. Dist. LEXIS 13192 (E.D.N.Y. July 12, 2004)... 7

United States v. King, No. 6:04-cr-35-Orl-3 IKRS,

2004 U.S. Dist. LEXIS 13496 (M.D. Fla. July 19, 2004) .. 6

United States v. Landgarten, No. 04-CR-70 (JBW),

2004 U.S. Dist. LEXIS 13172 (E.D.N.Y. July 15, 2004)... 7

iV

United States v. Mendoza-Gonzalez, 318 F.3d 663

(CAS), cert. denied, 123 S. Ct. 2114 (2003)... 18

United States v. Montgomery, No. 03-5256,

2004 U.S. App. LEXIS 14384 (CA6 July 14, 2004) .......... 6

United States v. Montgomery, No. 2:03-CR-801 TS,

2004 U.S. Dist. LEXIS 12700 (D. Utah July 8, 2004)4, 6, 7

United States v. Mueffleman, 2004 U.S. Dist. LEXIS

14114 (D. Mass. July 26, 2004) ooo... ce ccccceceeeeeeeeneenes 5,8

United States v. Nance, 236 F.3d 820 (CA7 2000) ................ 0)

United States v. Penaranda, 2004 WL 1551369,

COAL Felty 12, BOOS) Gees DED cecccccccccccccccsscccccssccesssssces 7,13

United States v. Players Int'l Inc.. 525 U.S. 1094 (1999) .... 15

United States v. Roberts, No. 03-CR-1369 (LAK)

es Oc Cay We ie cemnansreneremmmnnmenmnmenmeneen 7

United States v. Sanchez, 269 F.2d 1250 (CA11 2001) ....... 18

United States v. Smith, 308 F.3d 726 (CA7 2002) ............... 18

United States v. Terrell, No. 8:04CR24,

2004 U.S. Dist. LEXIS 13781 (D. Neb. July 22, 2004) .....6

United States v. Thomas, 274 F 3d 655 (CA2 2001)............ 18

United States v. Vazquez, 271 F.3d 93 (CA3 2001)............. 17

United States v. Will, 449 U.S. 200 (1980).....................00.. 13

Statutes

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Sey WT ines Ui eedeniatitinarsatiteenseperteneiisnesietenenmentenanesmeines 15, 16, 17

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Sentencing Reform Act of 1984, Pub. L. No. 98-473,

nS: Ut accnnsninintninesnentntientesnetenanntinnts x

Other Authorities

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I CINE ccerenereenerenenencsnmensassmmenenemmemenenecummatinn 11

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Rules

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Constitutional Provisions

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INTERESTS OF AMICI CURIAE

The National Association of Criminal Defense Lawyers

(NACDL) is a non-profit corporation with more than 11,200

members nationwide and 28,000 affiliate members in 50

states, including private criminal defense attorneys, public

defenders, and law professors.' The NACDL seeks to

promote the proper administration of justice and to ensure

that findings which affect the length of criminal sentences are

made according to constitutionally required procedures. The

NACDL has appeared as amicus curiae in this Court on

numerous occasions, including in Blakely v. Washington, 124

S. Ct. 2531, 2542 (2004), Apprendi v. New Jersey, 530 U.S.

466 (2000), and United States v. Cotton, 535 U.S. 625 (2002).

The National Association of Federal Defenders (NAFD)

was formed in 1995 to enhance the representation provided

under the Criminal Justice Act, 18 U.S.C. 3006A, and the

Sixth Amendment of the United States Constitution. The

Association is a _ nationwide, non-profit, volunteer

organization whose membership includes attorneys and

support staff of Federal Defender Offices. One of the NAFD’s

missions is to file amicus curiae briefs to ensure that the

position of indigent defendants in the criminal justice system

is adequately represented.

ARGUMENT

Amici submit that this Court should grant certiorari in

No. 04-104, United States v. Booker or in No. 04-5263,

Pineiro v. United States, and should also grant certiorari in

No. 04-5272, Bijou v. United States, but should deny the

petition for certiorari before judgment in No. 04-105, United

' Letters of consent have been filed with the Clerk. Pursuant to

Rule 37.6, amici curiae state that no counsel for a party authored

any part of this brief, and no person or entity, other than amici

curiae, their members,: and their counsel, made a monetary

contribution to the preparation or submission of this brief.

2

States v. Fanfan. Regardless of which cases the Court

decides to hear, it should decide two questions relating to the

application of Apprendi v. New Jersey, 530 U.S. 466 (2000),

to the federal Sentencing Guidelines: first, whether judicial

factfinding that results in an increase in a defendant's

sentence pursuant to the Guidelines violates the rule of

Apprendi (id. at 490) that “any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt”;

and second, if so, what role do the Sentencing Reform Act,

the Sentencing Guidelines, and Fed. R. Crim. P. 32 continue

to have?

In this brief, amici make two points regarding how the

Court should resolve these questions. In sum, the Court

should reframe the questions proposed by the Solicitor

General to make them clearer and to ensure that the lower

courts receive guidance on the core issues they now confront.

And the Court should grant certiorari in Bijou rather than in

Fanfan in order to ensure the best vehicle to decide the range

of questions that require this Court’s resolution.’

We discuss each issue in turn. Preliminarily, however,

we submit that this is a case in which suggestions regarding

the framing of the questions presented and the selection of

appropriate cases to decide those questions deserve special

attention. In all but the rarest instances, the government has

the ability to select from an array of appellate decisions the

most appropriate cases to present to this Court for decision,

and it further has the luxury of time in crafting the questions

presented. This is the rare exception. Here, the government's

view that there is an extraordinarily urgent need for decision

necessarily led it to begin immediately preparing petitions in

the very first cases it lost in the lower courts after Blakely. As

we discuss infra, those cases present a variety of potential

? Amicus NACDL has separately joined the response of the

respondent in Booker to the government’s motion to expedite.

3

procedural problems. The criminal defense community has

subsequently undertaken an extensive review of the extant

lower court decisions and pending petitions for certiorari to

identify the most important questions that currently confront

the lower courts and the cases in which the Court can best

answer those questions. Moreover, we have consulted

broadly regarding the framing of the questions presented and

have held extended discussions with counsel to the defendants

in the relevant pending petitions to identify a schedule that

will ensure thorough briefing on these questions, which all

agree require careful attention. We respectfully request that

the Court give these recommendations careful consideration.

I. The Court Should Reframe The Questions Presented.

_The questions presented by the government should be

revised in a manner that simultaneously simplifies them and

ensures that the Court will resolve all of the issues on which

the lower courts most need guidance.

1. The first question presented by the government is

intended to resolve whether the Constitution “preclude[s] a

sentencing court (absent the defendant’s consent) from

finding facts * * * that increase a defendant’s sentence under

the Sentencing Guidelines beyond the level indicated based

solely on the jury’s findings or the defendant’s admissions.”

Booker Pet. 14. As framed by the government, that question

is:

Whether the Sixth Amendment is violated by the

imposition of an enhanced sentence under the United

States Sentencing Guidelines based on _ the

sentencing judge’s determination of a fact (other

than a prior conviction) that was not found by the

jury or admitted by the defendant.

Booker Pet. i.

The question should be revised in several respects. First,

the government’s reference only to the Sixth Amendment is

substantially underinclusive. The rights recognized by

4

Apprendi and its progeny include the Fifth Amendment rights

to be convicted only upon proof beyond a reasonable doubt

and, in the federal system, to be indicted by a grand jury. See

Apprendi, 530 U.S. at 476. The proposed question’s

reference to a fact “found by the jury or admitted by the

defendant” should thus refer to the requirement of an

indictment and proof beyond a reasonable doubt.

The question should also be revised because its reference

to an “enhanced sentence” is potentially misleading. Within

the Guidelines’ scheme, that phrase could be taken to refer

only to sentencing enhancements - _ viz., upward

“adjustments” such as “specific offense characteristics.”

However, judicial factfinding under the Sentencing

Guidelines often also determines, for example, the base

offense level (as in Booker itself) and whether a court may

impose any upward departures from the prescribed Guideline

ranges (see United States v. Montgomery, No. 2:03-CR-801

TS, 2004 U.S. Dist. LEXIS 12700, at *15-*16 (D. Utah July

8, 2004)). Any of these determinations may result in a

sentence beyond “the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant.” Blakely, slip op. at 7.

Given the foregoing, we propose the following as the

first question presented:

Whether a district court violates the Fifth and Sixth

Amendments by relying upon facts that increase the

maximum sentence available under the United States

Sentencing Guidelines (other than the fact of a prior

conviction) when those facts were not charged in the

indictment and either found by the jury on proof

beyond a reasonable doubt or admitted by the

defendant.

2. The second question presented by the government is

intended to determine what role, if any, the Guidelines will

continue to play if they are subject to Apprendi. As framed

by the government, that question is:

5

If the answer to the first question is “yes,” the

following question is presented: whether, in a case

in which the Guidelines would require the court to

find a sentence-enhancing fact, the Sentencing

Guidelines as a whole would be inapplicable, as a

matter of severability analysis, such that the

sentencing court must exercise its discretion to

sentence the defendant within the maximum and

minimum set by statute for the offense of conviction.

Booker Pet. i. The question as drafted by the government is

flawed because it includes four untested assumptions about

the appropriate “remedy” for Apprendi’s application to the

Guidelines.

First, the government’s proposed second question

assumes that the Guidelines would continue to apply without

modification in those cases in which the Guidelines do not

call on the judge to decide “a sentence-enhancing fact.” The

Court should not indulge that assumption, which is in

substantial tension with the government’s own “severability”

analysis that Congress would not have intended the

Guidelines to operate only partially and only selectively as

between “similarly situated defendants.” Booker Pet. 15-17.

See United States v. Mueffleman, 2004 U.S. Dist. LEXIS

141 14, at *45-*46 (D. Mass. July 26, 2004) (“At the same

time, it is worth noting that the Government advances a

selective severability argument. They claim that the

Guidelines are only unconstitutional with respect to cases

involving sentencing enhancements. The system can be

unseverable with respect to the enhancements. In those cases,

the Government argues that the Guidelines are a seamless

web, wholly unconstitutional, and the Court should sentence

under the previous indetermirste regime. In contrast, in cases

in which there are no enhancements, the Government argues

the Guidelines apply. The argument makes no sense.”).

The class of cases excluded by the Solicitor General’s

formulation is furthermore very large, and the consequences

6

of that exclusion for the criminal justice system would be

sweeping, because the government’s formulation apparently

would exclude all cases in which no judicial factfinding

enhances a defendant’s sentence — e¢.g., cases in which the

government requires a defendant, as a condition of a plea

agreement, to admit all the facts relevant to sentencing. But

the lower courts have already divided on the question whether

the Guidelines continue to apply in cases that do not require

judicial factfinding, with those opposed to severability

reasoning that the Guidelines are meant to apply to all

defendants, or to none at all.’ Accordingly, the Court should

not accept the government’s proposal to limit the remedial

question to cases requiring judicial factfinding. |

Second, the government’s framing of the second question

presented erroneously assumes that this Court will have only

a single, binary choice when it comes to “remedy, i nat 1s,

the government presumes that the two options are that the

“the Sentencing Guidelines as a whole” would he applicable

or inapplicable in every case that requires judicial factfinding

> Compare United States v. King, No. 6:04-cr-35-Orl-3 1 KRS,

2004 U.S. Dist. LEXIS 13496, at *25 (M.D. Fla. July 19, 2004)

(“The suggestion that courts use the Guidelines in some cases but

not others is at best schizophrenic and at worst contrary : —

rinciples of justice, practicality, fairness, due process, and equa

ian th United States v. Montgomery, No. 2:03-C R-801

TS, 2004 U.S. Dist. LEXIS 12700, at *8 (D. Utah July 8, 2°04)

(“The problem lies in upward enhancements and departures 799™)

and United States v. Terrell, No. 8:04CR24, 2004 U.S. Dist. LEXIS

13781, at *10 (D. Neb. July 22, 2004) (“Application of the

Guidelines will not violate the Constitution in every case * * * .”).

See also United States v. Montgomery, No. 03-5256, 2004 U.S.

App. LEXIS 14384 (CA6 July 14, 2004) (it is 18 U.S.C. 3553(b),

not the Guidelines as such, which are unconstitutional under

Blakely; § 3553(b) is severable from § 3553(a) and other provisions

of the Sentencing Reform Act, leaving advisory guidelines in

place), vacated upon grant of rehearing en banc (July 19, 2004),

and voluntarily dismissed (July 23, 2004).

7

to determine the sentence. But the range of possibilities is

much wider: As the Solicitor General explains, the lower

courts have adopted “various attempts to implement Blakely.”

Booker Pet. 15 (quoting United States v. Penaranda. 2004

WL 1551369, at *7 (CA2 July 12, 2004) (en banc)).* For this

Court to single out only one of those solutions would not only

unnecessarily complicate the question presented, but it would

also encourage the parties to slant their briefing and argument

toward addressing the government's stark dichotomy rather

than the full range of possible Statutory results. A broader

framing of the question is also preferable because it would

give the Court the opportunity to reach a variety of remedial

issues without committing the Court to any particular course.

Third, the government’s reference to a “sentence-

enhancing fact” imports a concept of the government's

invention. It is not a principle recognized in Apprendi and its

progeny. Instead — in a line of cases from Almendarez-Torres

v. United States, 523 U.S. 224 (1998), to Jones v. United

States, 526 U.S. 227 (1999), to Castillo v. United States, 530

U.S. 120 (2000) — the Court has distinguished between

“elements” and “sentencing factors.” No doubt. the

government's proposed phrasing is intended to focus the

Court only on factfinding that exposes the defendant to higher

* For example, district courts have imposed a sentence

determined under the Guidelines but without any increases based °

on judicial factfinding, United States vy. Montgomery, 2004 U.S.

Dist. LEXIS 12700, at *11 (D. Utah July 8, 2004), convened

special sentencing juries, United States v. Landgarten, No. 04-CR-

70 (JBW), 2004 U.S. Dist. LEXIS 13172 (E.D.N.Y. July 15, 2004);

see also United States v. Khan, No. 02-CR-1242 (JBW), 2004 U.S.

Dist. LEXIS 13192, at *19-*41 (E.D.NLY. July 12, 2004)

(discussing justification for convening sentencing jury), and

considered issuing supplemental verdict sheets to juries, see United

States v. Roberts, No. 03-CR-1369 (LAK) (S.D.N.Y. July 9, 2004),

available at _http://)www.ussguide.com/members/BulletinBoard/

Blakely/O2CA/Index2CA.cfm.

8

sentences. But whether the Court should shift from its prior

focus on elements and sentencing factors to a new focus on

“sentence-enhancing facts” should be the subject of briefing

and argument, not an assumption built into the question

presented.

Fourth, the government’s formulation of the question

presented incorrectly assumes that the “remedial” issues

surrounding Apprendi’s application to federal sentencing are

limited to the Sentencing Guidelines. In fact, those issues

equally encompass the statute under which the Guidelines

were promulgated — the Sentencing Reform Act of 1984, Pub.

L. No. 98-473, tit. Il, ch. Il, 98 Stat. 1987 (codified as

amended at 18 U.S.C. 3551 et seq.) (see, e.g., United States v.

Mueffleman, 2004 U.S. Dist. LEXIS 14114, at *48 (D. Mass.

July 26, 2004)) — as well as Federal Rule of Criminal

Procedure 32(i), which calls for judicial factfinding (see, e.g.,

United States v. Ameline, 2004 U.S. App. LEXIS 15031, at

*33 (CA9 July 21, 2004) (holding Rule 32 unconstitutional)).

We accordingly recommend reframing the second

question proposed by the government as follows:

If the answer to the first question ' “yes,” the

following question is presented: What role do the

Sentencing Reform Act, the Sentencing \Guidelines,

and Federal Rule of Criminal Procedure 32 continue

to play in federal criminal sentencing?

Il. The Court Should Grant Certiorari in Booker or in

No. 04-5263, Pineiro v. United States, Should Also

Grant Certiorari in No. 04-5272, Bijou v. United

States, and Should Deny the Petition for Certiorari

Before Judgment in Fanfan.

Amici submit that it would be appropriate for the Court to

grant dual petitions for certiorari relating to the application of

Apprendi to the Sentencing Guidelines, Despite the best

efforts of counsel, it is possible that an unanticipated

procedural obstacle will later become apparent that renders

one case an inappropriate vehicle to resolve the questions

9

presented. The issues now confronting the lower courts are

too important to defer their resolution until another petition

for certiorari can be granted and the case decided on the

merits. For that very reason, however, the Court should make

every effort at the outset to select both cases carefully,

granting certiorari in those petitions that are most likely to

provide clear guidance to the lower courts. In our view,

assuming that the Court grants the government’s petition in

No. 04-104, Booker v. United States, the second case the

Court should agree to hear is No. 04-5272, Bijou v. United

States. Accordingly, the Court should deny the government’s

petition for certiorari before judgment in No. 04-105, Fanfan

v. United States.

1. We specifically recommend that the Court grant

certiorari in one case in addition to Booker because Booker

presents a number of potential procedural complications.

Indeed, the government’s petition hints at “possible later

impediments to review.” Booker Pet. 25. The defendant-

respondent in Booker did not assert that his sentence violated

the Fifth and Sixth Amendments in either the district court or

the Seventh Circuit; instead, the court of appeals raised the

issue swa sponte. And the fact that the defendant “gave a

written statement to the police in which he admitted selling”

the very drugs that were the basis for the judge’s sentence

(Booker Pet. 2) could lead to an assertion by the government

that the error was harmless.”

* Indeed, the government might even claim that Booker’s

“admission” to the police counts as an “admission” of the fact

under Blakely for sentencing purposes. To be clear, our view is that

none of these objections has merit in the circumstances of Booker,

albeit for reasons that this Court would have to reach before

deciding the merits of the Sixth Amendment question. The

defendant faced a wall of circuit precedent that categorically

precluded the successful assertion of an Apprendi challenge to his

sentence in the district court or court of appeals. See, e.g., United

States v. Nance, 236 F.3d 820, 824-25 (CA7 2000). Moreover, the

10

The government has suggested that the Court exercise its

inherent authority to “overlook{]” all such procedural

obstacles. See Booker Pet. 23. That would be a substantial

departure from the Court’s usual practice, and the Court may

conclude that the procedural concerns surrounding Booker are

substantial enough that certiorari should instead be granted in

another similar case, No. 04-5263, Pineiro v. United States

(petition for certiorari docketed July 14, 2004). In Pineiro,

the Fifth Circuit held that Apprendi does not apply to the

Guidelines, notwithstanding Blakely, at least not until this

Court expressly holds otherwise. 2004 U.S. App. LEXIS

14259, at *2 (CA5 2004). A jury found the defendant in that

case guilty of conspiracy to distribute marijuana and cocaine,

but made a special finding that the conspiracy involved

significantly smaller amounts of drugs than the government

alleged. The sentencing judge nonetheless increased the

defendant’s sentence considerably after finding by a

preponderance of the evidence that the defendant had

possessed “amounts of drugs far greater than the amounts

found by the jury.” /d at *5. In the district court, the

defendant preserved an Apprendi objection to the district

judge’s fact-finding with respect to his base offense level

(albeit arguably not to other sentencing enhancements). He

also preserved all his Apprendi objections before the Fifth

Circuit. Furthermore, because the jury acquitted the

defendant of the very conduct that the judge, in setting a

government has impliedly waived reliance on each of the described

procedural objections twice — both in the court of appeals and

subsequently in its petition for certiorari. Our view is moreover

that such an Apprendi error can never be “harmless” because the

defendant is deprived, inter alia, of his right to a grand jury

indictment, although that issue is itself the subject of a substantial

circuit split that could cloud the disposition of Booker. See Br. of

the U.S. in Opposition, Suarez v. United States, Nos. 02-10547, 02-

10319 (acknowledging the conflict), cert. denied, 124 S. Ct. 70

(2003).

1]

sentence, subsequently found he had committed, there can be

no allegation that the Apprendi error in Pineiro was harmless.

2. In our view, the appropriate companion case to

Booker or Pineiro is No. 04-5272, Bijou v. United States

(petition for certiorari docketed July 19, 2004).° In Bijou, the

government indicted the defendant on two counts of

possession of a firearm by a convicted felon and one count of

possession of ammunition by a convicted felon, along with a

charge of possessing drugs and one of using a firearm in

connection with that drug felony. The defendant pled guilty

to one felon-in-possession charge and went to jury trial on the

remaining charges. After the district court excluded the drug

evidence because it was “improbable” that the drugs

introduced by the government consisted of “the same item”

that had been seized from Bijou’s apartment, the government

dismissed the firearm-use and drug charges, and Bijou pled

guilty to the two remaining felon-in-possession counts.

At sentencing, the judge nonetheless found by a

preponderance of the evidence that Bijou had committed the

very drug offense set forth in the previously dismissed charge.

The judge deemed that offense to require a cross-reference for

the purpose of sentencing under the Guidelines, resulting in

Bijou’s being sentenced under the drug guideline rather than

the firearms guideline. According to the presentence

investigation report, the base offense level to which Bijou was

subject under the felon-in-possession guideline, U.S.S.G.

2K2.1, was 24. With a two-level reduction for Bijou’s

acceptance of responsibility, the guideline range for the

firearm and ammunition charges was 84 to 105 months. But

at sentencing, pursuant to the cross-reference for a defendant

who uses a firearm “in connection with the commission * * *

of another offense,” id. 2K2.1(c)(1), the judge used the same

* We are authorized to represent that counsel for the petitioner

in Bijou supports review on both of the questions as we have

framed them, supra.

12

drug evidence he had excluded as “very unconvincing” to

increase the adjusted offense level (after the adjustment for

acceptance of responsibility) to 32, producing a range of 210

to 262 months. In other words, on the basis of facts neither

proved to a jury beyond a reasonable doubt nor admitted by

the defendant, Bijou’s maximum sentence was more than

doubled.

Bijou timely objected to the court's imposition of a

higher sentence based on judicial fact-finding as violative of

Apprendi. He then appealed the denial of that objection to the

Fourth Circuit, which rejected the claim based on settled

circuit precedent. See United States v. Bijou, 92 Fed. Appx.

966 (2004) (unpublished opinion). Bijou thus presents a

perfectly “clean” vehicle for deciding the questions presented

because the constitutional issue was properly preserved

throughout the proceedings and because there cannot possibly

be an assertion of harmless error.

Bijou also has a considerable advantage over any of the

other petitions pending before this Court in that it arises from

a guilty plea. As the government points out (see Booker Pet.

20), some ninety-seven percent of federal criminal charges

are resolved by plea. See also Mitchell v. United States, 526

U.S. 314, 324-25 (1999) (citing similar statistics). The lower

courts, prosecutors, and defendants would accordingly benefit

most from a ruling by this Court that addresses the application

of Apprendi and Blakely in that context. For this Court

instead to grant review only in cases that resulted in jury

verdicts would potentially leave unresolved the most

important aspects of Apprendi’s application to federal

criminal procedure.

To be sure, Bijou has the marginal disadvantage that the

Fourth Circuit’s opinion in that case predates this Court's

decision in Blakely. Ideally, the Court would grant review in

a case with facts similar to those in Bijou and in which the

court of appeals had addressed the effect of Blakely. But we

have not been able to identify such a case now pending before

13

the Court. Just as the government notes that it makes no

difference that the Seventh Circuit did not consider the

“remedial” question in Booker, in our view, the numerous

lower court opinions already addressing Blakely’s

applicability to the Guidelines are an acceptable substitute for

such an opin.on in Bijou itself.

3. In our view, Bijou is more appropriate than Fanfan as

a companion case to Booker or Pineiro. Fanfan’s principal

flaw is that it has been brought to this Court by way of a

petition for a writ of certiorari before judgment, a procedure

that (like the Second Circuit's attempted certification of

questions in United States v. Penaranda, 2004 WL 1551369

(July 12, 2004) (en banc), certification docketed, No. 04-59

(July 13, 2004)), this Court has traditionally disfavored. If

history is any guide, the Court views that fact alone as

sufficient to justify denial of review.’

’ The government suggests that after resolving Blakely-related

questions in other cases, the “Court could dispose of Penaranda as

appropriate,” as in /ran National Airlines Corp. v. Maschalk Co.,

453 U.S. 919 (1981). Booker Pet. 27. After deciding Dames &

Moore v. Regan, 453 U.S. 654 (1981), the Court in /ran National

Airlines addressed questions certified by the Second Circuit by

issuing two “yes or no” answers and by dismissing a third question.

453 U.S. at 919. Three Justices dissented, urging the Court to

“dismiss the certificate”: “Having rendered an opinion on the

subject of those questions, we should not answer them in

monosyllables nor attempt a syllabus of a portion of the Court’s

opinion.” /bid. (Powell, J. dissenting) (citing the dismissals in

Foley v. Carter, 449 U.S. 1073 (1981), and United States v. Will.

449 U.S. 200 (1980)). The greater complexity of the certified

questions presented by Penaranda counsels more strongly in favor

of dismissing the certificate and allowing that case to proceed

through the normal appellate processes. In addition, the failure to

dismiss the certificate despite the absence of any compelling need

to consider it could convey the impression that this Court favors the

certification process. Indeed, it could encourage the courts of

appeals to certify other Apprendi-related questions to this Court in

14

Nor does any feature of Fanfan make it a compelling

vehicle. The district court did not issue an opinion and did

not even receive briefing from the parties before orally

announcing a sentence. Nor, contrary to the government's

argument, did the district court suggest that in future cases it

would sentence defendants to the minimum base level

consistent with the jury’s finding of guilt or innocence.

Rather, the district court in Fanfan held that the jury’s pre-

Blakely verdict was controlling in that case only, presumably

because the re-indictment of the defendant and subsequent

use of a sentencing jury to find a greater quantity of drugs

would violate double jeopardy. See Fanfan Pet. App. | 1a (“I

point out that I'm not making any blanket decision about the

federal guidelines. I’m dealing sol/e/y with drug quantity and

with role enhancement in the context of the case that went to

a jury verdict before a jury trial.” (emphases added)). The

government's petition in Fanfan thus does not satisfy the

“strict” (Fanfan Pet. 8) standards for granting certiorari

before judgment because several pending petitions for review

of the rulings of the courts of appeals provide superior

suitable vehicles for deciding the questions presented.

The cases cited by the government in which this Court

has granted certiorari before judgment (see Fanfan Pet. 9) are

not analogous. In the rare instances that the Court has granted

certiorari before judgment “where cases presenting similar

issues had already been accepted for review” (id. at 9 n.*),

each case presented distinct issues meriting this Court's

attention. Thus, in the only such instance since the 1950s, the

Court granted certiorari before judgment in Graiz v.

Bollinger, 539 U.S. 244 (2003), because that case concerned

the short term. The Court has not accepted a case through the

certification process since /ran National Airlines, its consistent

practice of dismissal could be undermined by its agreement to

review Penaranda now.

15

an affirmative action policy with important differences from

the program at issue in Grutter v. Bollinger, 539 U.S. 306

(2003). When such a special circumstance has been lacking,

the Court has denied certiorari before judgment. See, e.g.,

United States v. Players Int'l Inc., 525 U.S. 1094 (1999)

(denying government’s petition).

In certain other instances, this Court has granted

certiorari before judgment when it was necessary because no

decision of a court of appeals presented an available vehicle

to decide the (nonetheless pressing) question presented. For

example, when this Court granted certiorari before judgment

in Mistretta v. United States, which the government cites

here, no court of appeals had yet passed on_ the

constitutionality of the Guidelines. See Mistretta, 488 U.S.

361, 371 n.6 (1989). (The “district court” in Mistretta,

moreover, was a special seven-judge sentencing panel. See

682 F. Supp. 1033 (W.D. Mo. 1988).) That circumstance is

not present here.

4. We also recommend against treating Booker and

Fanfan as companion cases because both share a feature that

is likely to frustrate this Court’s ability to provide adequate

guidance to the lower courts, prosecutors, and defendants.

Booker and Fanfan both arise from drug convictions. To

be sure, drug cases are very common in the federal criminal

system, and we agree that it would be appropriate for the

Court to grant certiorari in one such case. But the federal

drug laws comprise, by far, the nation’s most complicated

sentencing scheme, a scheme that has given rise to an

extraordinary volume of litigation and an array of

disagreements regarding the meaning of the applicable

guidelines and statutes. Unlike most other criminal statutes,

which simply state a statutory maximum and then leave exact

sentencing calculations up to the Guidelines, the principal

federal drug statute (21 U.S.C. 841) includes a series of

escalating statutory maximums and minimums. The extra

complications inherent in this statutory scheme make cases

16

that arise under it ill-suited vehicles to resolve the threshold

question of whether Apprendi applies to the Sentencing

Guidelines.

Section 841’s graduated penalty scheme is essentially a

statutory guideline regime that functions anterior to the

federal Sentencing Guidelines. A presumptive guideline

range can, according to some circuits, be trumped by judicial

factfinding triggering a statutory mandatory minimum. Thus,

Judge Easterbrook’s dissent in Booker rests on his assumption

(echoed by the government here) that “Congress established

the statutory maximum penalties for drug offenses in 21

U.S.C. 841(b)” and that the Sentencing Guidelines “affect

sentencing only after the degree of the offense has been

established by the jury.” Booker Pet. 7 (citing Booker Pet.

App. 18a, 22a). While it would certainly be worthwhile for

this Court to resolve Section 841°s ambiguities post-Blakely,

the statute’s unique and complex provisions present a poor

test case for the constitutionality of the full gamut of

Guideline provisions. By contrast, although Bijou involves

the consideration of drugs as relevant conduct, it does not

implicate any of these issues because the underlying

con* viion was on firearms charges; the dispute is not over

the nuances of drug quantity and Section 841(b), but rather

whether the drug conduct may be considered at all in

sentencing for the firearms offense.

Drug quantity calculations also do not represent some of

the most egregious Apprendi violations under the Guidelines.

The defendants in both Fanfan and Booker were convicted of

distributing or conspiring to distribute cocaine, and the

question before the judge was simply “how much?” In

contrast, the defendant in Bijou was literally sentenced for a

different crime from the one to which he had pled guilty. The

Sentencing Guidelines mandated this result because the

sentence for possession of cocaine was “greater than that

determined” for illegally possessing a firearm. U.S.S.G.

2K2.1(c)(1)(A). In Blakely this Court was concerned with

precisely this sort of conviction by judicial inquisition. “The

17

jury could not function as circuitbreaker in the State’s

machinery of justice if it were relegated to making a

determination that the defendant at some point did something

wrong, a mere preliminary to a judicial inquisition into the

facts of the crime the State actually seeks to punish.”

Blakely, slip op. at 10 (emphasis in original).

Finally, cases involving the application of Apprendi to

drug quantity implicate another significant controversy that

Bijou avoids: the circuit conflict on the question whether drug

quantity is statutorily defined as an element of the Section

841 offense. If it is, then it is not necessary to apply

Apprendi’s constitutional rule in order to reach the conclusion

that quantity must be charged in the indictment and

determined by the jury beyond a reasonable doubt. Review

only of drug cases might fail to resolve the crucial issues

arising after Blakely because statutory construction could

avoid the constitutional question. The D.C. Circuit reached

just such a conclusion in United States v. Graham, 317 F.3d

262 (CADC 2003), in which it applied its settled rule that

drug quantity is an offense element under Section 841(b) to

strike down the supervised release portion of the defendant’ s

sentence. It did so on purely statutory grounds; indeed, the

court specifically held that the supervised release sentence did

not violate Apprendi’s constitutional rule because, although

the judge’s drug quantity finding triggered an increased

statutory minimum period of supervised release, that period

did not exceed the statutory maximum triggered by the jury’s

verdict alone. See also United States v. Vazquez, 271 F.3d

93, 107-16 (CA3 2001) (Becker, C.J., concurring) (reviewing

text, structure, and legislative history of Section 841 and

concluding that drug quantity is an offense element).

Graham conflicts with the holdings of the First, Seventh,

and Eleventh Circuits that Section 841(b) statutorily defines

drug quantity as a sentencing factor and not an offense

element, such that it must be determined by a jury only when

Apprendi’s constitutional rule is implicated. See United

States v. Goodine, 326 F.3d 26, 28-32 (CA1 2003), cert.

18

denied, 124 S. Ct. 1600 (2004); United States v. Smith, 308

F.3d 726, 740-41 (CA7 2002); United States v. Sanchez, 269

F.3d 1250, 1267-70 (CA11 2001). The Second, Fifth, and

Sixth Circuits have agreed with the D.C. Circuit that drug

quantity is a statutory offense element but have inexplicably

applied that holding only when the Apprendi rule would be

violated by not doing so. See United States v. Darwich, 337

F.3d 645, 655 (CA6 2003); United States v. Mendoza-

Gonzalez, 318 F.3d 663, 673 (CAS), cert. denied, 123 S. Ct.

2114 (2003); United States v. Thomas, 274 F.3d 655, 663-64

(CA2 2001) (en banc). This circuit conflict may or may not

persist, depending on how this Court ultimately applies

Apprendi and Blakely in the federal Guidelines context. If it

does persist, it will eventually merit this Court’s resolution.

See generally Goodine Pet., No. 03-596 (Oct. 16, 2003);

Goodine Br. of Amicus Curiae NACDL et al. (Feb. 6, 2004).

But the more pressing questions demanding immediate

resolution are the constitutional issues emerging from

Blakely, and this Court would thus be well served by

reviewing a case in which those issues are not clouded by the

existence of complicated, overlapping questions of statutory

interpretation.

19

CONCLUSION

For the foregoing reasons, the Court should reframe the

questions presented in the manner suggested above, grant

certiorari in Booker or in Pineiro, also grant certiorari in

Bijou, and deny the petition for certiorari before judgment in

Fanfan.

Respectfully submitted,

David M. Porter, Co-Chair Thomas C. Goldstein

NACDL Amicus Committee (Counsel of Record)

801 | Street, 3rd Floor GOLDSTEIN & Howe,

Sacramento, CA 95814 P.C,

4607 Asbury Pl., NW

Carol Brook Peter Goldberger

President, NAFD 50 Rittenhouse Place

55 East Monroe St., Ste. 2800 Ardmore, PA 19003

Chicago, IL 60603

Martin S. Lederman

6027 Onondaga Rd.

Bethesda, MD 20816