Amicus Curiae Brief — United States v. Fanfan

Supreme Court, U.S

(OG

Nos. 04-104, 04-105 | oFrice oF THE CLERK

Jn The Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

V.

FREDDIE J. BOOKER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

UNITED STATES OF AMERICA,

Petitioner,

V.

DUCAN FANFAN,

Respondent.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED

STATES COURT OF APPEALS FoR THE First CIRCUIT

BRIEF AMICUS CURIAE THE UNITED STATES

SENTENCING COMMISSION IN SUPPORT OF

PETITIONER, UNITED STATES OF AMERICA

JAMES K. ROBINSON*

ADAM S. LURIE

CADWALADER, WICKERCHAM & TAFT LLP

1201 F Street, N.W.

Washington, DC 20004

(202) 862-2200

*Counsel of Record

AMERICAN FINANCIAL PRINTERS ® (202) 464-5500

Charles R. Tetzlaff

General Counsel

Pamela O. Barron

Deputy General Counsel

Kathleen C. Grilli

Assistant General Counsel

United States Sentencing Commission

One Columbus Circle, N.E.

Washington, D.C. 20002

(202) 502-4500

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .0000...cccccccccccceeeeeees

INTRODUCTORY STATEMENT 00000000. ccccccccccccccecceeeeeee.

A. Historical Inequities In Sentencing Prompted

Passage Of The Act Establishing The Federal

Sentencing Guidelimes................c.ccccccccccsscessessceeceeees 2

B. The Act And The Guidelines Sought To

Channel Courts’ Traditional Discretion To

Impose Sentences Within The Prescribed

CC

(i) Congress Placed The Commission Within

The Judicial Branch So That The

Judiciary Would Retain Its Traditional

SOMOSRCIG PURCTIOR.........0.cccccccescecceccescsecsereeseees 4

(u) The Act Directed The Commission To

Establish Guidelines Consistent With The

Maximum Sentences Fixed By Law.................. 5

SUMMARY OF THE ARGUMENT 00000. 10

Neen ccummmnenes 11

CRITICAL DIFFERENCES BETWEEN

THE NATURE OF THE GUIDELINES AND

THE WASHINGTON STATUTORY

SCHEME DEMONSTRATE THAT THE

IMPOSITION OF A GUIDELINE

SENTENCE DOES NOT VIOLATE THE

SEXTEE ARGEINIDRGENT .....2.ccccccccscccsccsscossccssesscecsee 11

. The Guidelines Assign Weights To

Traditional Sentencing Factors Within

Ry CD cccessscsscescesscececnssncenssssssssessecens 12

. The Guidelines Cabin Judicial Discretion

Within Statutory Limitations .......................00c000+ 15

. The Washington State Legislature Devised

And Maintained The Sentencing System At

I Ga ccrecnnnscremeesnateeanisetinneeen 16

THE STATUTORY PENALTY SET BY

CONGRESS FOR A FEDERAL CRIME,

AND NOT THE SENTENCING

GUIDELINE RANGE, ESTABLISHES THE

PRESCRIBED STATUTORY MAXIMUM

FOR SIXTH AMENDMENT PURPOSES ............ 19

. The Guidelines Do Not Establish The

Statutory Maximum Penalty For Any

0 ESTEE RNS Te aera oe 19

_ The Court Has Recognized That The

Guidelines Do Not Establish The “Statutory

Maximum” For Any Criminal Offense.................. 21

C. Considerable Precedent Supports The View

That Factfinding Under The Guidelines Does

Not Violate The Sixth Amendment Because

The Guidelines Do Not Set Statutory Maxima

CONCLUSION

SEE EEE eee eee

TABLE OF AUTHORITIES

Cases:

Apprendi v. New Jersey, 530 U.S.

ee csccencareasesemnepenenminnmmmnennenen 11, 19, 27, 28

Blakely v. Washington, 124 S. Ct.

2531 (2004)........2, 10, 11, 12, 14, 15, 16, 18, 19, 21, 22, 28

Braxton v. United States, 500 U.S. 344 (1991).................... a)

Chapman v. United States, 500 U.S. 453 (1991)............... 24

Edwards v. United States, 523 U.S. 511 (1998).......... 26, 27

Harris v. United States, 536 U.S. 545 (2002)..............27, 28

Jones v. United States, 526 U.S. 227 (1999)... 28

McMillan v. Pennsylvania, 477 U.S. 79 (1986)... 28

Mistretta v. United States, 488

ee 1, 6,9, 21, 22

Neal v. United States, 516 U.S. 284 (1996)........... Reseeed dy 24

State v. Ammons, 713 P.2d 719 (Wash. 1986) ................... 16

State v. Freitag, 896 P.2d 1254 (Wash. 1995)................... 16

Stinson v. United States, 508 U.S. 36 (1993)................... 22

United States v. Booker, 375 F.3d 508 (7th Cir. 2004)......19

United States v. Donelson, 695 F.2d 583 (D.C. Cir.

FIT cncesenstvsuncssenenasnsmneauiciniinennssiinitinimeinitaiinedtiinanintal 26

o fie

United States v. Dunnigan, 507 U.S. 87 (1993) ........0.00000. 26

United States v. Grayson, 4378 U.S. 41 (1978) .....cccccccceeeee 3

United States v. LaBonte, §20 U.S. 751 (1997)........... 24, 25

United States v. Melendez, 518 U.S. 120 (1996) ............... 25

United States v. Watts, 519 U.S. 148 (1997) ooo. 26

Witte v. United States, 515 U.S. 389 (1995) ooo. 26

Constitution, Statutes and Rules:

IIS. "Wicccteceniccsiceritntinstietenntihiasbetniensertinatiieemeeied 27, 28

U.S. Const. amend. VI ..................... 1, 10, 11, 19, 25, 27, 28

eae CEP vinsiinitetitninintiiniananrcinesinrinieecntntiieantiamiaaiatiai 22

es ica inteendacicattinathie rina tartan aaialaasinsinatattitiea eel 20

Se eid TP ATT hserhicininienerieinciceriementntinitinaanitiatiaiaaiitiniinanmaamaiiaal 16

Sa as UP tt eassicnenernnsninencinmmneninenanencinnsientemenenmananesti 21

Sa aes, UY UTE caeininecnrieieneciteientinceeieaiiaiiiariataeat 21

| Ee pessunmenmneumisinatents 16

ee Oe ie atninresneneicenipeananintetemeinianennies A, 5,21, 25

Seige UATE Uinrinernnnnrteinianenenemssnetinsimmniaetaeninninnesl qd

aires Si AIT ienerceassiatashcteatntnntesereretieaitasiarneninieieiniarenieaesiaateniniaes 1S

ee eiiee: Oa ricsrsninsinininnerinnncniatncinmeanenicnicimnienmtemeentl 4

Ve) 26

SL 26

pd 1,4, 5,6

Pe 1, 4, 6, 7, 8, 10, 15, 20, 24

EE Al 4

ee ee ne 10

Identity Theft and Assumption Deterrence Act of

1998, Pub. L. 105-318, § 4, 112 Stat. 3009 (1998)............ 21

Protect Act, Pub. L. 108-21, 117 Stat. 650 (2003)............... 5

Sarbanes-Oxley Act of 2002, Pub. L. 107-204, 116

ee 20

Wash. Rev. Code Ann. § 9.944.120 (West 2003)............. 18

Wash. Rev. Code Ann. § 9.944.320 (West 2003)............. 18

Wash. Rev. Code Ann. § 9.944.505 (West 2003)............. 17

Wash. Rev. Code Ann. § 9.944.510 (West 2003)............. 17

Wash. Rev. Code Ann. § 9.94A.515 (West 2003)............. 17

Wash. Rev. Code Ann. § 9.944.520 (West 2003)............. 17

Wash. Rev. Code Ann. § 9.944.530 (West 2003)....... 17, 18

Wash. Rev. Code Ann. § 9.944.535 (West 2003)............. 17

Wash. Rev. Code Ann. § 9.94A.850 (West 2003)....... 12, 16

athe

Wireless Telephone Protection Act, Pub. L. 105-172,

BD UR, CES TERED, SE CIID cencceveccecosecccecssccesescescscsscsecnccsssces 21

EN ee en nee mntliiniia |

I i UD ities talaceecentieslanerindianetiiiniestastatitenl 22, 23

United States Sentencing Commission, Guidelines

RR 12,14, 15

United States Sentencing Commission, Guidelines

ES i ee 16

United States Sentencing Commission, Guidelines

SI 26

United States Sentencing Commission, Guidelines

I 7

United States Sentencing Commission, Guidelines

eee Sp neal IEE scrrerreeriettevnessiicnstiiniernniestsiniienmanasisisanninees 22

United States Sentencing Commission, Guidelines

Manual, § SC1.2 (2003) .........ccccccc0e: paemnipdmmntinitntgenanaimis 21

United States Sentencing Commission, Guidelines

ee 15

United States Sentencing Commission, Guidelines —

| | Ie 25

United States Sentencing Commission, Guidelines

RSET RN aed a 13

United States Sentencing Commission, Guidelines

Manual, App. A FP nsencsnscersencngrecnemsensnsssnsccnsenenesvessseeens 13

United States Sentencing Commission, Guidelines

Rbsrmealh, Rate. C (0 GGF PD ccccsssecsscccencesscesccssesersssoonsnssesonsossncnes 24

United States Sentencing Commission, Guidelines

Benne, Bate. C Ga i cccccsecccecesssececsnsvevssnccssnccscsnenncsee 10, 20

Other Authorities:

DETR. Gam. Bie, SB -BBEF CIDE .cccccscreccsessecsvccccsccsssnsesonssessens 2

BD, Cea, SAR COTO eccccsceceresccssvcesonnscnsesinscosnns 3, 4, 6, 7, 20

SB. Ram. Bea, FF BGT (UGGS) nccccocccsscesssescosescosscccecescesoscoosenesses 2

Edwards Brief for Petitioners, 1997 WL 793079

EE, Fah: Weare i cccrennncssaspssnsncssiamnieenemanseniaainbammmmnessioones 27

United States Sentencing Commission, 2002 Annual

United States Sentencing Commission, Fifieen Years

of Guideline Sentencing (forthcoming Fall, 2004). ............. i)

United States Sentencing Commission, Preliminary

Report to the Congress: Statutory Penalties Project

Description and Compilations of Federal Criminal

GIES CRT eects sc cscssccsnnsnseenmneniienmnternniviammnmnnnannes oane

United States Sentencing Commission,

Supplementary Report on Initial Sentencing

Guidelines and Policy Statements (1987) .........0c000008 13, 14

United States Sentencing Commission, Report to the

- Congress: Statutory Penalty Review Project (1991)......... 13

- Vill -

United States Sentencing Commission, The Federal

Sentencing Guidelines: A Report on the Operation of

the Guidelines System and Short-Term Impacts on

Disparity in Sentencing, Use of Incarceration, and

Prosecutorial Discretion and Plea Bargaining, Vol. 1

RRR Neon een cane lie OOS 2,3

David Boerner & Roxanne Lieb, Sentencing Reform

in the Other Washington, 28 Crime and Justice 71, 88

Sones a NEG GE ncitiialiesiiinasinteidoncninniiesibcemsendnisisiveianbiniatets 17

David Boerner, The Role of the Legislature in

Guideline Sentencing in the Other Washington, 28

Wake Forest L. Rev. 381 (1993)..........ccccecccesseeeees 12, 16, 17

Stephen Breyer, The Federal Sentencing Guidelines

and the Key Compromises Upon Which They Rest, 17

Hofstra L. Rev. 1, 8 (1988) oo... lala aaadadiaaiadaaial )

William W. Wilkins, Jr. & John R. Steer, The Role of

Sentencing Guidelines Amendments in Reducing

Unwarranted Sentencing Disparity, 50 Wash. & Lee

FE EE a ee CS 9

INTEREST OF AMICUS CURIAE

The United States Sentencing Commission (the

“Commission”) is an “independent commission in_ the

judicial branch of the United States” with the power to issue,

review and revise sentencing guidelines in order to

standardize the sentencing decisions of the federal courts

within the prescribed statutory maximum sentence set by

Congress. 28 U.S.C. §§ 991(a), 994(b)(1). Promulgation of

the United States Sentencing Guidelines (the “Guidelines”)

represents the Commission’s principal work. Accordingly,

the Commission has a direct interest in the constitutionality

of sentences issued under those Guidelines. For this reason,

the Commission also appeared before the Court as amicus

curiae in Mistretta v. United States, 488 U.S. 361 (1989), this

Court’s decision upholding the constitutionality of the

Guidelines. The parties have consented to the Commission’s

submission of this brief. '

INTRODUCTORY STATEMENT

The central question before the Court is whether the

imposition of a Guidelines sentence based on a

determination of fact that is neither found by a jury nor

admitted by a defendant violates the Sixth Amendment to the

United States Constitution The answer to this question is

categorically no. As this Court has recognized repeatedly,

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

Rule 37.6, the Commission states that no counsel for any other

party authored any part of this brief, and no person or entity, other

than the Commission and its counsel, made a monetary

contribution to the preparation or submission of this brief.

the Guidelines do not establish the prescribed statutory

maximum for any criminal offense. Rather, unlike the

sentencing system at issue in Blakely v. Washington, 124

S.Ct. 2531 (2004), the Guidelines serve only to cabin judicial

discretion within the statutory parameters that Congress has

established for federal crimes. Accordingly, this Court has

consistently upheld the constitutionality of the Guidelines,

and should continue to do so in the context of the instant

case.

A. Historical Inequities In Sentencing

Prompted Passage Of The Act Establishing

The Federal Sentencing Guidelines

In 1984, Congress enacted the Sentencing Reform

Act (the “Act”) in response to an emerging consensus that

the Federal sentencing system was seriously broken and in

need of major repair. See S. Rep. No. 97-307, at 956 (1981)

(“glaring disparities... can be traced directly to the

unfettered discretion the law confers on those judges and

parole authorities [that implement] the sentence”). The

primary problem that Congress sought to address was the

grave inequity in sentencing attributable to the unfettered

discretion that courts traditionally exercised in the context of

an indeterminate sentencing system. See H.R. Rep. No. 98—

1017, at 34 (1984) (“The absence of Congressional guidance

to the judiciary has all but guaranteed that... similarly

situated offenders . . . will receive different sentences”).

Indeed, for more than a century, Congress afforded

judges virtually unlimited authority to fashion appropriate

sentences within broad statutorily prescribed ranges. See

Commission, The Federal Sentencing Guidelines: A Report

on the Operation of the Guidelines System and Short-Term

Impacts on Disparity in Sentencing, Use of Incarceration,

and Prosecutorial Discretion and Plea Bargaining, Vol. |

SF

(December 1991) [hereinafter Commission, /99/ Report] at

9. During that time, judges “decided the various goals of

sentencing, the relevant aggravating and _ mitigating

circumstances, and the way in which these factors would be

combined in determining a specific sentence.” Commission,

1991 Report, at 9. Because each judge was “left to apply his

own notions of the purposes of sentencing,” the result was

“an unjustifiably wide range of sentences to offenders .. .

convicted of similar crimes.” S. Rep. 98-225, at 38 (1984).

The parole system, which applied to only a portion of those

sentenced and which permitted the release of prisoners based

upon inconsistent ideas regarding the potential for

rehabilitation, exacerbated this lack of uniformity.

Commission, /99/ Report, at 9 (citing United States v.

Grayson, 438 U.S. 41, 46 (1978)).

B. The Act And The Guidelines Sought To

Channel Courts’ Traditional Discretion To

Impose Sentences Within The Prescribed

Statutory Maximum

With its enactment of the Act, Congress intended to

revise the federal sentencing process in a manner that would

eliminate the unwarranted disparities and lack of uniformity

in sentencing. As an initial matter, the Act explicit!

established the only permissible goals of federal sentencing. “

The Act also created the Commission, an agency dedicated

. Congress decided that sentencing should be tailored “(A) to

reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense; (B) to afford

adequate deterrence to criminal conduct; (C) to protect the public

from further crimes of the defendant; and (D) to provide the

defendant with needed educational or vocational training, medical

care or other correctional treatment in the most effective manner.”

See 18 U.S.C. § 3553(a)(2).

atic

to establishing sentencing policies and practices; placed it

within the Judicial Branch; and directed it to promulgate

guidelines to be used for sentencing within the prescribed

statutory maximum.’ Finally, the Act authorized limited

appellate review of a guideline sentence, see 18 U.S.C.

§ 3742(a), (b) (permitting a defendant to appeal a sentence

above the defined range and the government to appeal a

sentence falling below that range), and abolished federal

parole, see 18 U.S.C. § 3624(a), (b). In so doing, Congress

effectively consolidated in the Commission the power

previously exercised by ndividual sentencing judges and the

Parole Commission. See 28 U.S.C. §§ 991, 994, 995(a)(1).

(i) Congress Placed The Commission Within

The Judicial Branch So That The Judiciary

Would Retain Its Traditional Sentencing

Function

Because Congress concluded that “sentencing should

remain primarily a judicial function,” S. Rep. No. 98-225, at

159, it established the Commission “as an independent

commission in the judicial branch of the United States,” 28

U.S.C. § 991 (a). The Act provides that the Commission is

to be comprised of seven voting members (including the

-Chair) appointed by the President “by and with the advice

Significantly, although Congress ordered the courts to follow the

guidelines that the Commission was authorized to promulgate, the

Act preserved judges’ discretion to depart from a_ prescribed

guideline in a particular case if the judge found an important

aggravating or mitigating factor present that the Commission did

not adequately consider when formulating the Guidelines. See 18

U.S.C. § 3553(a), (b). The Act also required courts to state their

reasons for the sentences imposed and to articulate “the specific

reason” for imposing sentences different from those described in a

particular guideline. See 18 U.S.C. § 3553(c).

YY

and consent of the Senate.” See 28 U.S.C. § 991. Moreover,

the Act establishes that “three of the [Commission's]

members shall be Federal judges selected after considering a

list of six judges recommended to the President by the

Judicial Conference of the United States,"* and that no more

than four members of the Commission can be members of

the same political party. /d (The Attorney General, or his

designee, and the Chair of the Parole Commission are

designated as ex officio, nom voting members.) Thus, the

composition of the Commission itself, as designated in the

Act, reinforces Congress’ intent that sentencing remain a

distinctly judicial undertaking.

(ii) The Act Directed The Commission To

Establish Guidelines Consistent With The

Maximum Sentences Fixed By Law

In the Act, Congress directed the Commission to

create the Guidelines with three goals in mind. First, the

Commission was to “assure the meeting of the purposes of

sentencing,” as set forth m 18 U.S.C. §3553(a)(2). See 28

U.S.C. § 991(b, 1A). Second, the Commission was to

“provide certainty and fairness in meeting the purposes of

sentencing, avoiding unwarranted sentencing disparities

among defendants with similar records who have been found

guilty of similar criminal conduct while maintaining

sufficient flexibility to permit individualized sentences when

warranted by mitigating or aggravating factors not taken into

* Although “at least three” commissioners were to be federal

judges in the Act as it was originally enacted, the Prosecutorial

Remedies and Other Tools To End The Exploitation of Children

Today (PROTECT) Act of 2003 amended 28 U.S.C. § 991(1) to

limit to “no more than three” the number of judges who may be

members of the Commission. Protect Act, Pub. L. 108-21, 117

Stat. 650 (2003) (codified at 28 U.S.C. § 991(a)).

efe

account in the establishment of general sentencing

practices.” See 28 U.S.C. § 991(b)(1)(B). Finally, Congress

directed the Commission to “reflect, to the extent

practicable, advancement in knowledge of human behavior

as it relates to the criminal justice process.” See 28 U.S.C.

§ 991 (by 1C).

To meet these goals, Congress directed the

Commission to develop sentencing ranges applicable for

specific categories of offenses involving similarly situated

defendants. The guidelines were not intended to trump

statutory requirements. In fact, Congress required

sentencing ranges to be consistent with all pertinent

provisions of title 18, United State Code, and “not include

sentences in excess of the statutory maxima.” Mistretta, 488

U.S. at 375 (emphasis added); see also 28 USC.

§ 994(b\(1). Congress placed other limitations on the

guidelines as well. Congress directed that, “for sentences of

imprisonment, ‘the maximum of the range established for

such a term shall not exceed the minimum of that range by

more than the greater of 25 percent or 6 months, except that,

if the minimum term of the range is 30 years or more, the

maximum may be life imprisonment.”” Mistretta, 488 U.S. at

375 (quoting 28 U.S.C. § 994(b)(2)).

In establishing a guidelines sentencing system,

Congress fully expected “there [would] be numerous

guideline ranges, each range describing a somewhat different

_ combination of offender characteristics and offense

circumstances,” including “several guideline ranges for a

single offense varying on the basis of aggravating and

mitigating circumstances.” S. Rep. No. 98-225, at 168.

Congress intended that there “be a complete set of guidelines

that covers in one way or another all important variations

that commonly may be expected in criminal cases, and that

oie

reliably breaks cases into their relevant components and

assures consistent and fair results.” /d.

Congress further directed the Commission to

consider seven factors, all of which were traditionally

considered in sentencing, in its formulation of offense

categories: |) the grade of the offense; 2) the aggravating

and mitigating circumstances of the crime; 3) the nature and

degree of the harm caused by the crime; 4) the community

view of the gravity of the offense; 5) the public concern

generated by the crime; 6) the deterrent effect that a

particular sentence may have on others; and 7) the current

incidence of the offense. See 28 U.S.C. § 994(c)\(1}(7).

Congress also listed eleven additional factors for the

Commission to consider in establishing categories of

defendants. See 28 U.S.C. § 994(d)(1)-(11).° Congress

further prohibited the Commission from considering the

“race, sex, national origin, creed, and socioeconomic status

of offenders,” see 28 U.S.C. § 994(d), and instructed that the

guidelines should reflect the “general inappropriateness” of

considering certain other factors that might serve as proxies

* Again, the legslative history provides additional guidance for the

Commission's consideration of these statutory factors. For

example, Congress intended that the “criminal history . . . factor{s]

include[] not only the number of prior criminal acts — whether or

not they resulted in convictions — the defendant has engaged in,

but their seriousness, their recentness or remoteness, and their

indication whether the defendant is a ‘career criminal’ or a

manager of a criminal enterprise.” S. Rep. No. 98-225, at 174.

The promulgated guidelines include these and other criminal

history measures that necessarily may require judicial factfinding

extending beyond the ascertainment of the fact of prior

convictions. See Commission, Guidelines Manual, Ch. 4 (2003)

(all Commission Guidelines Manuals are hereinafter referred to as

“Guidelines Manual’).

Pe

for forbidden factors, such as current unemployment. See 28

U.S.C. § 994(e).

In addition to these constraints, Congress provided

for additional considerations for the Commission to adhere

to when fulfilling its duties. Congress directed that

guidelines require a term of confinement at or near the

statutory maximum for certain crimes of violence and for

drug offenses, particularly when committed by recidivists.

See 28 U.S.C. §994(h). Congress further directed the

Commission to assure a substantial term of imprisonment for

an offense constituting a third felony convietion, for a career

felon, for one convicted of a managerial role in a

racketeering enterprise, for a crime of violence by an

offender on release from a prior felony conviction, and for an

offense involving a substantial quantity of narcotics. See 28

U.S.C. §994(i). Congress also enumerated various

aggravating and mitigating circumstances to be reflected in

the guidelines, such as multiple offenses or substantial

assistance to the Government (respectively). See 28 U.S.C.

§ 994(1) and (n).

The Commission has additional duties, that include

making recommendations to Congress regarding whether the

grades or maximum penalties of offenses should be

modified. See 28 U.S.C. § 994(r). In fulfilling these duties,

the Commission was tasked to “consult with authorities on,

and individual and institutional representatives of, various

aspects of the Federal criminal justice system.” See 28

U.S.C. §994(0). It must also review and revise the

Guidelines in consideration of comments and data coming to

its attention. /d The Commission must report to Congress

any amendments to the guidelines, and must submit to

Congress annually an analysis of the operation of the

guidelines. See 28 U.S.C. § 994(p),(w).

ee

Recognizing that the Guidelines should conform to

the needs of the system, the Commission expected that its

work on the Guidelines would be evolutionary. See Stephen

Breyer, The Federal Sentencing Guidelines and the Key

Compromises Upon Which They Rest, \7 Hofstra L. Rev. |,

8 (1988). The Commission would therefore “issu[fe]

Guidelines, gathe[r] data from actual practice, analyz[e] the

data, and revis[e] the Guidelines over time.” /d. In support

of its monitoring function, the Commission reviews the

charging and sentencing documents for approximately

65,000 cases per year. See Commission, 2002 Annual

Report, at 40; Mistretta, 488 U.S. at 369. This effort

enables the Commission to ensure uniformity in federal

sentencing. From these cases, the Commission “codes up to

262 pieces of information about each guidelines sentencing

that occurs in federal court. The resulting, steadily

expanding database is an nvaluable source of information

for the Commission as it monitors guidelines application and

refines the Guidelines Manual.” See William W. Wilkins, Jr.

& John R. Steer, The Role of Sentencing Guidelines

Amendments in Reducing Unwarranted Sentencing

Disparity, 50 Wash. & Lee L. Rev. 63, 65 (1993).° As this

Court has explained, “Congress necessarily contemplated

that the Commission would periodically review the work of

the courts, and would make whatever clarifying revisions to

the Guidelines conflicting judicial interpretations might

suggest.” Braxton v. United States, 500 U.S. 344, 348

(1991). And the Commission has done exactly that. Since

* The Commission also uses the database to evaluate whether the

Guidelines have achieved the goals of the Sentencing Reform Act.

To that end, the Commission will be issuing a report reflecting

how the Guidelines have met the goals of the Act. See

Commission, Fifieen Years of Guideline Sentencing (forthcoming

Fall, 2004).

x *

the promulgation of the original set of Guidelines through

the present, the Commission has continuously amended the

Guidelines to respond to court decisions, congressional

directives, and the Commission’s own evaluations of the

need for refinements. Indeed, as of the current manual, there

have been 662 amendments. See generally, Guidelines

Manual, App. C (2003). These amendments automatically

take effect within a 180-day waiting period, unless otherwise

modified or disapproved by Act of Congress. See 28 U.S.C.

§ 994(p).’

SUMMARY OF THE ARGUMENT

The imposition of a Guidelines sentence based on a

judge’s determination of a fact neither found by a jury nor

admitted by a defendant does not violate the Sixth

Amendment to the United States Constitution. It does not do

so for two primary reasons.

I. Distinctions between the Guidelines and _ the

Washington sentencing scheme considered in Blakely

demonstrate that judicial factfinding under the Guidelines

does not violate the Sixth Amendment. Unlike the

Washington sentencing scheme, the Guidelines do not alter

the statutorily prescribed range of penalties to which a

criminal deferidant is exposed. Instead, the Guidelines

assign weights to traditional sentencing factors within

statutory constraints. In addition, the Washington sentencing

scheme invalidated by this Court is statutory, whereas the

Guidelines are not purely legi..ative enactments, further

rendering Blakely inapplicable to the Guidelines.

’ This is similar to the rule making process governing the Federal

Rules of Criminal Procedure and the Federal Rules of Evidence.

See 28 U.S.C. § 2074(a).

-10-

=

)

Il. The maximum sentence a federal judge may impose

based on a jury verdict or facts admitted by a defendant is

the statutory maximum set by Congress in the relevant

federal statute. Indeed, under the Act, any additional facts

found by a judge at sentencing pursuant to the Guidelines

cannot increase a sentence beyond the statutory maximum

set by Congress. Thus, because Congress, not the

Commission, sets the statutory maximum, Blakely is

inapplicable to the Guidelines. Similarly, Congress may

establish a statutory mandatory minimum sentence that

trumps a lower guideline range. Considerable precedent

grounded in sound reasoning supports this view.

ARGUMENT

I. CRITICAL DIFFERENCES BETWEEN THE

NATURE OF THE GUIDELINES AND THE

WASHINGTON STATUTORY SCHEME

DEMONSTRATE THAT THE IMPOSITION OF

A GUIDELINE SENTENCE DOES NOT

VIOLATE THE SIXTH AMENDMENT

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),

the Court announced the rule that “[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be

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

In Apprendi and its progeny, the Court invalidated state

statutory sentencing schemes that extended the authority of

judges to impose a sentence above a statutory maximum. By

contrast, the Guidelines constrain a court’s sentencing

authority within the boundaries of a legislatively determined

maximum penalty, and (where applicable) a mandatory

minimum penalty. Consequently, the rule announced in

Apprendi does not apply to a guideline sentence that falls

below the Congressionally prescribed statutory maximum.

~

An examination of how the Guidelines were crafted

highlights the critical distinctions that separate the

Guidelines from the state statutory scheme at issue in

Blakely.

A. The Guidelines <Assitn Weights To

Traditional Sentenciag Factors Within

Statutory Constraints

In response to the Act, the Commission began the

Herculean task of creating a workable guidelines scheme.

As it undertook its mission, the Commission was required to

“resolve a host of important policy questions typically

involving rather evenly balanced sets of competing

considerations.” See Guidelines Manual, § \A1.1, cmt.

Intro. and Gen. App. Principles, (A)(4) (2003). Among

those questions, the Commission had to decide whether

appropriate punishment would be defined primarily on the

principles of “just deserts” or “crime control.” Consistent

with the Act’s “rejection of a singly doctrinal approach in

favor of one that would attempt to balance all the objectives

of sentencing,” the Commission did not choose one theory

over the other. See Commission, Supplementary Report on

Initial Sentencing Guidelines and Policy Statements (1987)

[hereinafter ‘Supplementary Report on Initial Guidelines”|

at 16. Instead, the “Guidelines embody aspects of both just

desert and crime-control philosophies of sentencing [and]

give effect to both considerations.” /d.*

“ By contrast, the Washington legislature adopted a “just deserts”

philosophy of sentencing. David Boerner, The Role of the

Legislature in Guideline Sentencing in the Other Washington, 28

Wake Forest L. Rev. 381 (1993) (hereinafter Boerner); see also

Wash. Rev. Code Ann. § 9.944.850 (West 2003).

+. -

ee ae —

The Commission’s task was compounded by the

complexity of the federal criminal code. As noted by Justice

Richard H. Poff, a jurist of the Supreme Court of Virginia

and a former Vice-Chair of the Brown Commission, the

federal system had “innumerable statutes dealing with such

basic offenses as theft and fraud” that were “scattered about

hither and yon among various titles of the United States

Code” resulting in “conflicting court interpretations.”

Commission, Preliminary Report to the Congress: Statutory

Penalties Project Description and Compilations of Federal

Criminal Offenses (1989), at vi (quoting Reform of the

Federal Criminal Laws, Hearings Before the Subcommittee

on Criminal Law and Procedures of the Senate Committee

on the Judiciary).” Because the major goal of the Act was to

increase uniformity in sentencing, while not sacrificing

proportionality, the guidelines had to “authorize

appropriately different sentences for criminal conduct of

significantly _— different _ severity.” Commission,

Supp /ementary Report to the Congress: Statutory Penalty

Review Project (1991), at 13.

As a starting point for the Commission’s work, it

utilized an empirical approach, examining detailed data from

more than 10,000 presentence investigations and _ less

detailed data on nearly 100,000 federal convictions. The

Commission also examined the United States Parole

Commission’s guidelines and resulting statistics, public

commentary and information from other relevant sources to

determine existing sentencing practices. See Supplementary

"The first Guidelines manual listed over 700 penal statutes or

subsections thereof in Appendix A, see Guidelines Manual, App.

A (1987), and the current manual references over 1200 different

statutes or subsections thereof. See Guidelines Manual, App. A

(2003).

sic

Report on Initial Guidelines, at 16. “This approach provided

a concrete starting point and identified a list of relevant

distinctions that, although of considerable length, [was] still

short enough to create a manageable set of guidelines.” /d.

From these distinctions, the Commission was able to create a

sentencing guidelines scheme that was not too complex to be

workable, but not so simple that it overlooked harms that

resulted from the defendant’s criminal conduct. See

Guidelines Manual § 1A1.1, emt. Intro. and Gen. Principles,

(A)(3) (2003).

Importantly, the Commission examined existing state

guidelines systems, including the Washington system at

issue in Blakely. | Supplementary Report on Initial

Guidelines, at 14. The Commission rejected the approach

used by many states, concluding that “[s]tate guidelines

systems which use relatively few, simple categories and

narrow imprisonment ranges. . . are ill suited to the breadth

and diversity of federal crimes..” /d. For example, under

many states’ systems, “a single category of robbery...

lumped together armed and unarmed robberies, robberies

with and without injuries, [and] robberies of a few dollars

and robberies of millions,” and thus “would have been far

too simplistic to achieve just and effective [federal]

sentences, especially given the narrowness of the permissible

sentencing ranges.” | Supplementary Report an Initial

Guidelines, at 13. Consequently, the Commission

determined that the Guidelines should be descriptive of

generic conduct, rather than track statutory language. See

Guidelines Manual § 1A1.1, cmt. Intro. and Gen. App.

Principles, (A)(4)(a) (2003).

Further, consistent with the past sentencing practices

of judges and the Parole Commission, the Commission

decided to create a system requiring a court to consider,

,

within constraints. a defendant’s “real” offense conduct. In

o fhe

.

es = tent

creating the Guidelines, the Commission conducted a study

of past sentencing practices and arrived at a list of relevant

factors that courts traditionally employed to arrive at a

sentence in the indeterminate scheme. The Commission then

assigned “weights” to these factors, thereby guiding courts’

discretion in how each factor would impact the calculation of

the sentence. Significantly, while the Commission’s list of

factors included elements of the offense, it also included

harms associated with the crime. Just as they had always

done, courts could therefore consider a number of important,

commonly occurring, real offense harms, while preventing

prosecutors from influencing sentences by increasing or

decreasing the number of counts in an indictment. See

Guidelines Manual § 1A\1.1, cmt. Intro. and Gen. App.

Principles (A)(4)(a) (2003). The factors incorporated by the

Commission into the Guidelines consisted of factors that

have traditionally been considered appropriate sentencing

factors under indeterminate sentencing systems. See Blakely,

124 S.Ct. at 2540 (“Of course indeterminate schemes involve

judicial factfinding, in that a judge (like a parole board) may

implicitly rule on those facts he deems important to the

exercise of his sentencing discretion.”); see also 18 U.S.C.

§ 3661.

B. The Guidelines Cabin Judicial Discretion

Within Statutory Limitations

The operation of the Guidelines has always been

constrained by the statutorily imposed sentencing limits,

both minimum and maximum. This principle, enunciated by

Congress in title 28, section 994(b)(1) of the U.S. Code, is

incorporated in Guidelines Manual § 5G1.1. See Guidelines

Manual, § 5G1.1 (2003). The impact of the statutory

maxima on guideline sentences is especially critical given

the broad range of maxima reflected in the United States

Code. For example, the federal fraud statutes directed to

"=

§ 2B1.1 of the Guidelines Manual include maxima as low as

one year (see, ¢.g., 18 U.S.C. § 1003) and as high as thirty

years (see, e.g., 18 U.S.C. § 1344). See Guidelines Manual,

§ 2BI.1 (2003). The Guidelines computation for a

conviction under either of these fraud statutes results from

the compilation of a base offense level that is applicable to

fraud offenses generally and myriad other factors depending

on the manner in which the crime was committed. As the

offense level increases based on traditional discretionary

factors, so will the applicable Guidelines range. The

Guidelines, however, make clear that a defendant will be

subjected to no more than the maximum statutory penalty set

by Congress for the offense of conviction.

Cc, The Washington State Legislature Devised

And Maintained The Sentencing System At

Issue In Blakely

Washington state's sentencing scheme is

fundamentally different from the Guidelines. The

Washington state sentencing commission is an agent of the

legislature, not part of the judicial branch. . Unlike the

Commission, the Washington commission — cannot

promulgate guidelines that become automatically effective.

Rather, it proposes guidelines, that the legislature must

affirmatively enact. See, Wash. Rev. Code Ann.

§ 9.944.850 (West 2003); Boerner, at 387. Thus, the

Washington guidelines scheme is purely statutory, and the

state courts therefore have little, if any, influence over

sentencing policies. See State v. Ammons, 713 P.2d 719, 723

(Wash. 1986) (en banc) (“The trial court’s discretion in

sentencing is that which is given by the Legislature”); State

v. Freitag, 896 P.2d 1254, 1256 (Wash. 1995) @n banc)

(“{I]t is the function of the judiciary to impose sentences

consistent with legislative enactments.”’).

= *

The Washington legislature rejected an approach

utilizing “real harms” and tied the presumptive range solely

to the offense of conviction and prior criminal history.

David Boerner & Roxanne Lieb, Sentencing Reform in the

Other Washington, 28 Crime and Justice 71, 88 (M. Tonry,

ed. 2001); see also Wash. Rev. Code Ann. § 9.944.510

(West 2003). Under the Washington scheme, the legislature

assigned each penal offense a seriousness level that is a

function of the statute of conviction. See Wash. Rev. Code

Ann. § 9.944.520 (West 2003). The current statute setting

forth seriousness levels for the Washington penal statutes

lists approximately 174 offenses. See Wash. Rev. Code Ann.

§ 9.944.515 (West 2003). The legislature directed that the

offense seriousness levels rank property crimes in the lower

levels and crimes against persons in the upper levels.

Boerner, at 390. With notable exceptions ¢.g., use of a

firearm), harms associated with the crime of conviction do

not impact the sentence. As such, any defendant convicted

of a particular crime will be assigned the same severity level

as any other defendant convicted of the same crime.

The Washington Sentencing Reform Act (the

“Washington Act”) requires the judge to impose a sentence

within the presumptive range, absent extraordinary

circumstances. See Wash. Rev. Code Ann. § 9.944.505

(West 2003). That range, and not the broader statutory

maximum for the class of felony committed, is always

applied unless the court finds that there exists “substantial

and compelling reasons justifying an exceptional sentence.”

See Wash. Rev. Code Ann. §9.94A.535 (West 2003). A

factor is a permissible reason for imposing an exceptional

sentence only if it is not already taken into account in the

calculation of the presumptive range. Moreover, “[f]acts that

establish the elements of a more serious crime or additional

crimes may not be used to go outside the standard sentence

range except upon stipulation or when specifically provided

o -

for in RCW 9.94A.535(2)(d), (e), (g), and (h).” Wash. Rev.

Code Ann. § 9.944.530 (2) (West 2003).

In Blakely, Petitioner pled guilty to second-degree

kidnaping involving domestic violence and use of a firearm,

a class B felony, and entered a guilty plea admitting the

elements of second-degree kidnaping and the domestic-

violence and firearm allegations, but no other relevant facts.

Blakely, 124 S.Ct. at 2534-35. A Washington state statute

provided “[n]o person convicted of a [class B] felony shall

be punished by confinement... exceeding... a term of ten

years.” /d. at 2535. However, the Washingtun Act further

limited the range of sentences a judge could impose. For

petitioner's offense of second-degree kidnaping with a

firearm, the Act provided for a statutory “standard range” of

49 to 53 months. /d. at 2535 (citing Washington Act

§ 9.94A.320). The Washington Act permitted the court to

impose a sentence above the standard range if it found

“substantial and compelling reasons justifying an exceptional

sentence.” /d. (citing Washington Act § 9.94A.120(2)).

Pursuant to this enhancement section, and after hearing a

description of the kidnaping, the judge found that Petitioner

had acted with deliberate cruelty and imposed an

“exceptional sentence of 90 months — 37 months beyond the

standard maximum.” /d. Significantly, under Washington

state law, “deliberate crue Ity” is identified as an element of a

more serious offense. See Wash. Rev. Code Ann.

$ 9.944.530 (2) (West 2003). Thus, the enhancement

mechanism in operation under state law allowed the court to

penalize Blakely for the commission of an aggravated

offense. See Blakely, 124 S. Ct. at 2539 (“Petitioner argued

below that second-degree kidnaping with deliberate cruelty

was essentially the same as first-degree kidnaping, the very

charge he had avoided by pleading to a lesser offense.”). In

other words, by extending the court’s discretion to enable it

to find facts that are elements of other offenses, state law

-18-

allowed “judicial impingement upon the traditional role of

the jury... .” id, at 2540, thereby violating the Apprendi

rule. By contrast, the Guidelines operate not to extend, but

rather to constrain, the court's discretion.

Blakely did not conclude that the source of the

“statutory maximum” is irrelevant. That the Guidelines are

not statutes is relevant. See United States v. Booker, 375

F.3d S08, 519-20 (7th Cir. 2004) (Easterbrook, J.,

dissenting). “Statutory” in the phrase “statutory maximum”

is not “an inept shorthand.” /d. at 519. Because Congress

sets the maximum and minimum penalties for federal crimes

in the relevant statutes as explained below, and such

penalties are not set in the Guidelines, a jury verdict or guilty

plea authorizes any sentence up to the statutory maximum

and above the statutory minimum. /d Consequently, what

happens after the jury verdict or plea ‘ts unrelated b the

sixth amendment” and thus, “the rule of Apprendi and

Blakely is confined to statutes.” /d. That the Washington

sentencing scheme is statutory is therefore a constitutionally

significant distinction between the Guidelines and the

Washington scheme.

i. THE STATUTORY PENALTY SET BY

CONGRESS FOR A FEDERAL CRIME, AND

NOT THE SENTENCING GUIDELINE RANGE,

ESTABLISHES THE PRESCRIBED

STATUTORY MAXIMUM FOR _ SIXTH

AMENDMENT PURPOSES

A. The Guidelines Do Not Establish The

Statutory Maximum Penalty For Any

Criminal Offense

The Commission is not authorized to establish

Statutory maximum penalties; rather, when creating the

-19-

Commission and delegating powers to it, Congress clearly

manifested its intent to reserve the power to set maximum

penalties. It established that the Commission may only

recommend to Congress whether maximum penalties should -

be modified. See 28 U.S.C. § 994(r). The legislative history

supports this view. Indeed, the Senate Committee on the

Judiciary indicated that the Committee believed that the

- Commission would be in * particularly good position to

make such recommendations to the Congress. Senate

Report, No. 98-225, at 179.

The Guidelines themselves further bolster the

understanding that the Commission’s role is limited. As

amended, the Guidelines are replete with examples of the

controlling impact of congressional changes to statutory

penalties on Guideline sentencing ranges. See, ¢.g.,

Guidelines Manual, App. C (2003) Amend. 95 @mending

section to ‘teflect increased maximum sentences for certain

conduct covered by this guideline”); Amend. 139 (reflecting

“increased statutory mandatory minimum penalties for

offenses pursuant to Section 6481 of the Ant#Drug Abuse

Act of 1988"); Amend. 556 (reflecting increases in

maximum penalties for offenses involving trafficking and

simple possession of flunitrazepam); Amend. 595 (reflecting

statutory changes to methamphetamine quantities triggering

mandatory minimum sentences); Amend. 598 (reflecting

changes to mandatory minimum sentences in 18 U.S.C.

§ 924(c)). Amend. 600 (same); Amend. 642 (same); Amend.

652 (reflecting increase in statutory maximum sentence for

involuntary manslaughter); Amend. 653 (increasing base

offense level for fraud offense to reflect the increased

statutory maximum sentences made by the Sarbanes-Oxley

Act of 2002, Pub. L. 107-204, 116 Stat. 745 (2002)).

A number of congressional directives to the

Cammission, enacted subsequent to the Act, also evidence

- 20-

continuing legislative intent that the Guidelines work within

the available statutory penalty parameters. See, e.g., /dentity

Theft and Assumption Deterrence Act of 1998, Pub. L. 105-

318, § 4, 112 Stat. 3009 (1998) (amending 18 U.S.C. § 1028)

(requiring the Commission to consider, for certain identity

theft offenders, the extent to which the guideline sentences

for the offense have been constrained by previously existing

Statutory maximum penalties); Wireless Telephone

Protection Act, Pub. L. 105-172, § 2(e), 112 Stat. 55 (1998)

(amending 18 U.S.C. § 1029) (directing the Commission to

review and amend the sentencing guidelines to address

offenses involving the cloning of a wireless telephone). '”

‘The consistently expressed legislative and

Commission intent is that the Guidelines structure and

constrain judicial sentencing discretion within legislated

penalty parameters. Were Blakely to be extended to apply to

the Guidelines such that the penalties therein expressed are

deemed statutory maxima, the Guidelines would have been

elevated to a legal status clearly contrary to that intent.

B. The Court Has Recognized That The

Guidelines Do Not Establish The

“Statutory Maximum” For Any Criminal

Offense

When this Court first upheld the constitutionality of

the Guidelines in Mistretta, it repeatedly recognized that the

Commission lacks the authority to prescribe any statutory

maxima for federal crimes. See Mistretta, 488 U.S. at 391,

396. The Court further explained that “the Sentencing

° The only Guideline provision that allows the court to “impose a

sentence without regard to any statutory minimum sentence”

requires a defendant to meet criteria set forth in 18 U.S.C. § 3553

(f{1)-(5). See Guidelines Manual § 5C 1.2 (2003).

~

Commission is devoted exclusively to the development of

rules to rationalize a process that has been and will continue

to be performed exclusively by the Judicial Branch.” Id. at

407 (emphasis added). The jury traditionally had no role at

the sentencing phase of the criminal case. Thus, the

Guidelines do not “infringe[] upon the province of the jury,”

any more than the post-verdict or post-plea judicial

factfinding this Court finds constitutional in indeterminate

schemes. Blakely, 124 S.Ct. at 2540.

This Court has long recognized the differences

between the sentencing ranges imposed by the Guidelines

and those imposed statutorily by Congress. For example, in

Stinson v. United States, 508 U.S. 36 (1993), the Court

equated the Guidelines with rules adopted by federal

agencies, stating that the “Sentencing Commission

promulgates the guidelines by virtue of an express

congressional delegation of authority for rule-making, and

through the informal rule-making procedures in 5 U.S.C.

§ 553.” Stinson, 508 U.S. at 45 (internal citations omitted).

Citing precedent that an agency's interpretation of its own

regulations must be given controlling weight, so long as it

does not violate the Constitution or a federal statute and 1s

not plainly erroneous or inconsistent with the regulation, this

Court upheld as binding the commentary that a felon-in-

possession offense does not constitute a crime of violence for

purposes of Guideline Manual §4B1.2. Id. at 45-47

(emphasis added). ''

'' This Court has further recognized the distinction between

statutory maxima established by Congress and the Guidelines in

Rule 11 of the Federal Rules of Criminal Procedure. Indeed, since

1974, Rule 11 has expressly mandated that prior to acceptance of a

guilty plea, a court must inform and be assured that a defendant

understands the maximum possible sentence of imprisonment and

any mandatory minimum sentence. See Fed. R. Crim. P.

~ -

Three years later, in Neal v. United States, 516 U.S.

284 (1996), this Court reiterated the distinction between the

Guidelines and statutes, indicating that Congress’

pronouncements trump the Commission's. Specifically, the

Court considered whether the revised system for determining

1 I(T), 1 1(b\ 11); Fed. R. Crim. P. 11 advisory committee's

note (concerning 1974 amendments). The Advisory Committee

notes indicate that these changes were made “to insure that a

defendant knows what minimum sentence the judge must impose

and what maximum sentence the judge may impose.” See Fed. R.

- Crim. P. Il advisory committee’s note (concerning 1974

amendments) (emphasis in original). As the Committee

recognized, the minimum and maximum sentence “is usually

readily ascertainable from the face of the statute defining the

crime, and thus it is feasible for the judge to know specifically

what to tell the defendant. Giving this advice tells a defendant the

shortest mandatory sentence and also the longest possible sentence

for the offense to which he is pleading guilty.” /d. Pursuant to a

Provision adopted in 1989, the Rule now also instructs the court to

inform a defendant of its obligation to apply the Guidelines,

including its discretion to depart under some circumstances. See

Fed. R. Crim. P. 1 l(b) 1M). However, in contrast to the 1974

amendment requiring explicit notice of the maximum penalty

authorized by statute, “the amendment does not require the court

to specify which guidelines will be important or which grounds for

departure might prove to be significant” at the time of the plea

because “it will be impracticable, if not impossible, to know which

guidelines will be relevant prior to the formulation of a

presentence report and resolution of disputed facts.” See Fed. R.

Crim. P. 11 advisory committee’s note (concerning 1989

amendment). Thus, under current federal rules, at the time of

SOY a Se tae aly to Sees ee

maximum minimum statutory Ities Cc

The defendant need not be told of oy conte’ Gataon

calculation. Indeed, the Rule only requires that the defendant be

told that the Guidelines exist and that the court is authorized to

depart from the Guidelines calculation subsequently determined.

5.

LSD amounts under the Guidelines required reconsideration

of the method used to determine statutory minimum

sentences announced in Chapman v. United States, 500 U.S.

453 (1991). Shortly after the Court announced its decision in

Chapman, the Commission revised the method of calculating

the weight of LSD in the Guidelines, and used a different

method from the one required by Chapman. See Guidelines

Manual, App. C., Amend. 488 (1995). The Petitioner urged

the Court to hold that the Commission's method of

calculating the weight of LSD was the appropriate method,

but the Court rejected this position. Neal, 516 U.S. at 289-

90. In so doing, the Court stated that “[whhile

acknowledging that the Commission's expertise and the

design of the Guidelines may be of potential weight and

relevance in other contexts, we conclude that the

Commission's choice of an alternative methodology for

weighing LSD does not alter our interpretation of the statute

in Chapman.” Id. at 290. Thus, the Court reaffirmed the

principle that the Guidelines must defer to legislative

dictates.

Similarly, in United States v. LaBonte, 520 U.S. 751

(1997), this Court once again made clear that the Guidelines

must give way to congressional pronouncements. In that

case, this Court considered the meaning of the phrase

“maximum term authorized” used in 28 U.S.C. § 994(h).

The Commission had determined that the maximum term

available for the offense of conviction did not include any

applicable statutory sentencing enhancements. /d. at 752-53.

The Court rejected this view. Although recognizing the

Commission’s broad discretion to create guidelines, the

Court held that such discretion “must bow to the specific

directives of Congress” and “if the Commission’s revised

commentary is at odds with § 994(h)'s plain language, it

must give way.” /d. at 757. The Court went on to state

“(w]e conclude that the Commission’s interpretation is

-24-

inconsistent with § 994(h)’s plain language, and therefore

hold that ‘maximum term authorized’ must be read to

include all applicable statutory sentencing enhancements.”

Id. at 753. “Accordingly, the phrase ‘maximum term

authorized’ should be construed as requiring the ‘highest’ or

‘greatest’ sentence allowed by statute.” Id. at 758 (emphasis

added). This holding supports a determination that the

prescribed statutory maximum for federal crimes is also the

highest or greatest allowed by the statute of conviction, not

the applicable guideline range.

Further support for the Commission's understanding

of the limitations on its authority to impact statutory

penalties can be derived from this Court’s holding in United

States v. Melendez, 518 US. 120, 122 (1996). There, the

_ Court held that a motion by the government for a departure

from the applicable guidelines range pursuant to Guidelines

Manual § 5K1.1 does not also authorize a departure from the

Statutory minimum mandatory sentence absent a government

request for such a departure. Implicit in the Court's holding

is a distinction between statutes (in this instance, 18 U.S.C.

§ 3553(e)) and the Guidelines. Once again, this underscores

the principle that statutes trump the Guidelines.

oF Considerable Precedent Supports The

View That Factfinding Under The

Guidelines Does Not Violate The Sixth

Amendment Because The Guidelines Do

Not Set Statutory Maxima

. To conclude that factfinding under the guidelines

violates the Sixth Amendment, the Court would have to

+ -

overrule or distinguish considerable recent precedent.'~

Perhaps most notably, the Court would have to overrule or

substantially limit Edwards v. United States, 523 U.S. S11

(1998). In Edwards, the government charged petitione rs

with violating 21 U.S.C. §§ 841 and 846 by conspiring “to

possess with intent to distribute . . . mixtures containing two

controlled substances, namely, “cocaine... and cocaine

base” (i.e.. “crack”). Edwards, 523 U.S. at 512-13. After

the district court judge instructed the jury that “the

government must prove that the conspiracy . oe involved

measurable amounts of cocaine or cocaine base, the jury

returned a general verdict of guilty.” Following the jury

verdict, the judge imposed sentences based on his finding

that each petitioner's illegal conduct had involved both

See, e.g., United States v. Watts, 519 US. 148, 152 (1997)

(holding that judge may enhance a defendant's sentence based on

“facts introduced at trial relating to other charges, even ones of

which the defendant has been acquittea”) (citing United States v.

Donelson, 695 F.2d 583, 590 (D.C. Cir. 1982) (Scalia, J.); Witte v.

United States. 515 U.S. 389, 403 (1995)) (allowing use of relevant

conduct, stating that the “relevant conduct provisions of the

Sentencing Guidelines, like their criminal history counterparts and

the recidivism statutes discussed above, are sentencing

enhancement regimes evincing the judgment that a particular

offense should receive a more serious sentence within the

authorized range if it was either accompanied by or preceded by

additional criminal activity”); United States v. Dunnigan, 507 U.S.

87, 97 (1993) (upholding court's determination that defendant

obstructed justice pursuant to Guideline Manual § 3C 1.1 by

committing perjury at trial and rejecting “respondent's argument

that the § 3CI.1 sentence enhancement advances only ‘the

impermissible sentencing practice of incarcerating for the purpose

of saving the Government the burden of bringing a separate and

subsequent perjury prosecution.’”).

- 26-

cocaine and crack. /d. at 513. On appeal to the Seventh

Circuit Court of Appeals, the petitioners argued that the

word “‘or’ in the judge’s instruction meant that the judge had

to assume that the conspiracy involved only cocaine”

because the Guidelines treat that drug more leniently than

crack. /d. The Seventh Circuit Court of Appeals affirmed,

and the petitioners sought review in this Court.

Before this Court, petitioners argued that their “Fifth

and Sixth Amendment rights to a jury determination of all

the essential elements of the offense is defeated in this case

unless the Petitioners are sentenced on the agreement

carrying the lesser punishment.” Edwards Brief for

Petitioners, 1997 WL 793079 at *30 (Dec. 17, 1997).

However, in a unanimous opinion affirming the Seventh

Circuit, the Court squarely rejected this argument because

the petitioners’ sentence did not exceed the maximum

sentence as set by Congress. Edwards, 523 U.S. at 515 (“Of

course, petitioners’ statutory and constitutional claims would

make a difference if it were possible to argue, say, that the

Sentences imposed exceeded the maximum that the statutes

permit for a cocaine--only conspiracy”).

Moreover, according to the Court, traditional

sentencing factors, like those contained in the Guidelines, are

not subject to Sixth Amendment constraints. In Harris v.

United States, 536 U.S. 545 (2002), for example, the Court

explained that “not all facts affecting the defendant's

punishment are elements... [and] these facts, sometimes

referred to as sentencing factors, [do not need] to be alleged

in the indictment, submitted to the jury, or established

beyond a reasonable doubt.” Harris, 536 U.S. at 549-50. In

light of this principle, the Court distinguished the factual

findings at issue in Apprendi with those at issue in Harris,

noting that “any fact extending the defendant's sentence

beyond the maximum authorized by the jury's verdict would

- 27.

have been considered an element of an aggravated crime —

and thus the domain of the jury — by those who framed the

Bill of Rights.” /d. at 557-58 (emphasis added). Then, citing

to Apprendi, 530 U.S. at 498, the Court noted that the “Fifth

and Sixth Amendments ensure that the defendant ‘will never

get more punishment than he bargained for when he did the

crime,’ but they do not promise that he will receive ‘anything

less’ than that.” /d. at 566. Turning its attention to the

statute at issue, the Court concluded that it was constitutional

and did not evade the requirements of the Fifth and Sixth

Amendment because “Congress ‘simply took one factor that

has always been considered by sentencing courts to bear on

punishment... and dictated the precise weight to be given

thet factor.” /d. at 559, citing McMillan v. Pennsylvania,

477 U.S. 79, 89-90 (1986). “That factor need not be alleged

in the indictment, submitted to the jury, or proved beyond a

reasonable doubt.” /d.

This Court has always recognized that the

Guidelines, like the mandatory minimum at issue in Harris,

constrain, and do not extend, the court’s authority. Because

the Guidelines do not “alter the congressionally prescribed

range of penalties to which a criminal defendant is exposed,”

Jones v. United States, 526 U.S. 227, 253 (1999) (Scalia, J.,

concurring) (emphasis added), the Guidelines do not

implicate the Sixth Amendment concerns raised in Blakely.

iil. CONCLUSION

For the foregoing reasons, the Court should reverse

the decisions of the lower courts and hold that the Guidelines

do not prescribe statutory maxima, and a Guideline sentence

involving judicial factfinding therefore does not violate the

Sixth Amendment to the United States Constitution.

- 28 -

Respectfully submitted,

James K. Robinson*

Adam S. Lurie

Cadwalader, Wickersham & Taft LLP

1201 F Street, N.W.

Washington, DC 20004

(202) 862-2200

*Counsel of Record

Charles R. Tetzlaff

General Counsel

Pamela O. Barron

Deputy General Counsel

Kathleen C. Grilli

Assistant General Counsel

United States Sentencing Commission

One Columbus Circle, N.E.

Suite 2-500, South Lobby

Washington, D.C. 20002

(202) 502-4500

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