Free Reply/Response Misc - District Court of Connecticut - Connecticut

Case 3:02-cr-00187-CFD

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA : : : : : : CRIMINAL NO. 3:02CR187(CFD)

v. JOSHUA CORDERO

Date: July 5, 2005

GOVERNMENT'S MEMORANDUM RE: BLAKELY During a sentencing hearing conducted on March 19, 2004, the court identified several1 issues and solicited responses from the parties. At the conclusion of the hearing, the Government indicated that it would consult with defense counsel, with an eye toward resolving some if not all of the open issues in a manner that would obviate the need for an evidentiary hearing. Counsel for the defendant requested an extended period to discuss these matters, due to health concerns, and the court scheduled a hearing for August 12, 2004. In the interim, two things have happened: (1) the parties have met in good faith to resolve the issues at bar and (2) the United States

By the Gov ernment's cou nt, the court identified eight issues: (1) whether the defendant's stipulation in the plea agreement that his conduct warrants a two level role adjustment is binding on the court; (2) assuming that the stipulation is not binding on the court, whether a two level role adjustment for leadership pursuant to U.S.S.G. § 3B1.1(c) is justified under the facts o f this case; (3 ) whether the d efendant seeks to withdra w his guilty plea be cause of arguments advanced in his sentencing memorandum; (4) whether a downward departure for substantial assistance to state authorities is applicable pursuant to U.S.S.G. § 5K1.1, or any other Guidelines provision, notwithstanding the lack of a motion by the Government and, if so, what criteria controls; (5) whether the defendant is precluded from the safety valve beca use he was a leader; (6) whether the defendant is barred from the safety valve because he possessed a firearm or dangerous weapon in connection with the offense; (7) whether the defendant is still entitled to a three level reduction for acceptance of responsibility; and (8) whether there exists a need for findings of fact/conclusions of law or an evidentiary hearing on any of the afore mentioned issues.

1

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-2Supreme Court issued its opinion in United States v. Blakely, 2004 WL 1402697 (June 24, 2004). Against this backdrop, the United States submits2 that the parties agree to the following: 1. 2. The defendant does not wish to withdraw his guilty plea. The stipulation in the plea agreement letter concerning the defendant's role in the offense is withdrawn, and the Government will not seek to introduce evidence in support of a role adjustment. The role adjustment stipulation, moreover, by the terms of the plea agreement, is not binding on the Court. Mr. Cordero recognizes that while Second Circuit case law permits defendants to seek a downward departure for substantial assistance provided to state or local law enforcement authorities pursuant to U.S.S.G. § 5K2.0, the facts at hand do not support such an argument and, therefore, he will not pursue this motion. Although the defendant is not precluded from the safety valve by virtue of his prior stipulation concerning leadership (which has been withdrawn), he is barred from the safety valve by his possession of two firearms or dangerous weapons in connection with the offense. See U.S.S.G. § 5C1.2(a)(2). The defendant is still entitled to a three level reduction in his Guidelines range for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Given these agreements, there is no need for an evidentiary hearing. The defendant will continue to seek a downward departure based on his extraordinary post-arrest rehabilitation, and the Government will take no position as to whether the Court should depart on this basis and, if so, to what extent.

3.

4.

5.

6.

7. 8.

Accordingly, the parties agree that the defendant's sentencing range is now 87 to 108 months imprisonment (32 - 3 = 29, with CHC I) and that a mandatory minimum term of 60 months applies.

The Government mistakenly believed that the instant pleading was filed with the Court in early August 200 4 and , given this m isapp rehension, the Go vernm ent referred to its contents in its M arch 3 1, 20 05 m emo randum in aid of sentencing [D oc. N o. 97]. To complete the record, the Government is now filing the memorandum with the perm ission of the defendant and the Co urt.

2

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-3Legal Analysis I. The Defendant Does Not Wish To Withdraw His Guilty Plea And The Government Does Not Object To The Defendant's Withdrawal Of His Stipulation Regarding Role In The Offense. After consulting with defense counsel, the Government understands that Mr. Cordero does not wish to withdraw his plea of guilty. The defendant should confirm as much at the next sentencing hearing, after a thorough canvass by the Court. The Court properly raised this issue at the March 19, 2004 sentencing hearing when confronted by the defendant's argument that a two level role enhancement pursuant to U.S.S.G. § 3B1.1(c) was inappropriate ­ notwithstanding his stipulation in the plea agreement to the contrary. In the interim, the parties have consulted on this issue, the United States has considered the case referenced by the Court, United States v. Burgos, 324 F.3d 88 (2d Cir. 2003), and reexamined its evidence on this matter, especially in light of Blakely v. Washington, 2004 WL 1402697 (June 24, 2004). In a nutshell, the role adjustment is a very close call. On the one hand, Mr. Cordero's control of Erik Gonzalez during the March 7, 2001 transaction, see Government's Supplemental Sentencing Memorandum filed April 2, 2004, arguably fits squarely within existing Second Circuit case law, see e.g., United States v. Garcia, 936 F.2d 648, 655 (2d Cir. 1991)(enhancement appropriate where defendant negotiated price and quantity with buyer, found source of supply, and directed activities of others); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 183 (2d Cir. 1990)(enhancement appropriate where defendant negotiated price, held drugs in his own apartment, and directed activity of one other person for a week); United States

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-4v. Payne, 63 F.3d 1200, 1212 (2d Cir. 1995); United States v. Liebman, 40 F.3d 544, 548 (2d Cir. 1994). But the Government is also mindful that its proof on the leadership issue is confined to this one transaction, and that there exist ambiguity with respect both to: (1) whether Cordero recruited Gonzalez and (2) the extent of control he exercised over Gonzalez. See United States v. Burgos, 324 F.3d 88 (2d Cir. 2003). The United States is also cognizant that perhaps the Supreme Court's ruling in Blakely, absent interpretation from the Second Circuit, might impose a higher burden of proof on the government than was contemplated by the parties at the time of the initial plea agreement.3 For all these reasons, the United States does not object to the defendant's attempt to withdraw his stipulation concerning role in the offense from the plea agreement.4 II. Downward Departure for Assistance to State or Local Authorities. In his sentencing memorandum dated March 17, 2004, the defendant sought a downward departure because of "substantial assistance he provided the Government at the time of his arrest[, in that] he informed the arresting officers that he possessed some weaons and a large quantity of narcotics in another location." At the hearing conducted on March 19, 2004, the Court noted that the United States had not filed a "substantial assistance" motion pursuant to U.S.S.G. § 5K1.1, nor could it force the government to do so.5
3

The Government does not concede that Blakely applies to the G uideline s, see infra, and its decisio n to not seek to enforce the terms of the plea agreement should not be construed to as such a concession. But rather than force the issue in this particular instance, when the call is a close one, the parties have o pted to permit the d efendant to withdraw his stipulation as to role. The Co urt should also note that, by the terms of the plea agreement, the parties recognize that stipulations, including the one co ncerning role in the offense, are not bind ing on the Co urt. The Government cannot file a 5K motio n for a d efendant who cooperates against himself. Section 5K expressly limits substantial assistance motions to instances where "the defendant has provided substantial assistance in the investigation o r prosecutio n of another person[.]" (emphasis supplied).
5 4

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-5The Court also inquired as to whether substantial assistance provided to state or local authorities can ever be a basis for a downward departure and, if so, what criteria applies. In United States v. Kaye, 140 F.3d 86, 88 (2d Cir. 1998), the Second Circuit held that cooperation with local law-enforcement authorities provides a basis for a downward departure under Guideline § 5K2.0 but not under § 5K1.1, which concerns departures based on "substantial assistance in the investigation or prosecution," of a federal offense. Id. (quoting 18 U.S.C. § 3553(e)); see also United States v. Korman, 343 F.3d 628, 631 (2d Cir. 2003). But, as the Korman court explained, "cooperation with local law-enforcement authorities does not always merit a downward departure under § 5K2.0." Id. In Korman, the Second Circuit concluded that a district court erred when it departed downwardly under § 5K2.0 for a defendant who had testified before a state grand jury in connection with a murder investigation. The court explained that "to justify a downward departure, `defendant's conduct [must be] so extraordinary that it falls outside the heartland of cases covered by the guidelines.'" Id. (quoting United States v. Gaines, 295 F.3d 293, 303 (2d Cir. 2002)). Thus, Korman concluded that "in normal circumstances, the fact of providing grand jury testimony in a state prosecution does not remove a case from the heartland of Sentencing Guideline cases." Id. at 632. See also, United States v. Resto, 74 F.3d 22, 27 (2d Cir.1996)(pre Kaye case holding that district courts cannot depart downward for substantial assistance under Section 5K2.0 except in a small category of cases not implicated here). In the case at bar, the defendant has not raised any claims of assistance to local authorities that satisfies this rigorous standard. Accordingly, the defendant has advised the Government that he will withdraw a departure motion based on substantial assistance.

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-6III. The Defendant Agrees That He Is Not Eligible For Safety Valve. In his sentencing memorandum dated March 17, 2004, the defendant argued that "the Court should seriously consider granting to Mr. Cordero a sentencing reduction pursuant to the `safety value' [sic]." The Government objected to this claim in its Supplemental Memorandum filed on April 2, 2004. The Government maintains its objection, though only on the basis of the defendant's possession of a firearm or dangerous weapon in connection with the offense. Upon information and belief, the United States expects that the defendant will advise the Court that he no longer contends that he is safety valve eligible by virtue of his possession of the firearms in connection with the offense. In short, Mr. Cordero possessed a gun "in connection with" the distribution of narcotics and is therefore precluded from obtaining the safety valve. See U.S.S.G. § 5C1.2(a)(2) and 18 U.S.C. § 3553(f)(2). As previously discussed in the Government's Supplemental Sentencing Memorandum of April 2, 2004, on the night of the defendant's arrest, the police retrieved two firearms and a quantity of crack cocaine from his residence on the third floor apartment of 166 Lewis Avenue. The firearms were stored in his bed; the crack was stored in relative close proximity in a refrigerator. Mr. Cordero stated to the arresting authorities that the guns were kept merely for protection of his family and, as such, were merely incidental to his drug possession and were not used to further the drug business or to protect his drug business. The Second Circuit has expressly rejected this very claim, however, characterizing such an argument as an "overly

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-7restrictive interpretation of § 5C1.2." United States v. DeJesus, 219 F.3d 117, 122 (2d Cir. 2000). In DeJesus, the court explained that [w]e have held that the "in connection with the offense" language of § 5C1.2(2) is equivalent to the "in relation to" language of 18 U.S.C. § 924(c)(1) and, as with that statute, § 5C1.2(2) is satisfied "when the government establishes, by a preponderance of the evidence, that the firearm served some purpose with respect to the offense." Chen, 127 F.3d at 291 (quoting United States v. Spurgeon, 117 F.3d 641, 643-44 (2d Cir. 1997)); see also Smith v. United States, 508 U.S. 223, 238, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (holding that for purposes of § 924(c)(1), "the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence"). The weapon "at least must facilitate, or have the potential of facilitating, the drug trafficking offense." Smith, 508 U.S. at 238, 113 S.Ct. 2050 (internal quotation marks and alterations omitted). Id. (emphasis supplied). In this case the firearms had the potential of facilitating Cordero's operation by affording him security against rival dealers; for instance, persons intent on robbing him of his money and/or drugs, which were stored in the same apartment. While the defendant can claim that he purchased the two firearms as a means of protecting his family, he must also recognize that the need to protect the family was greatly exacerbated by his storage of crack cocaine in the residence and his operation of his drug business from that location. The defendant's suggestion that the gun was not used for the protection of his drug business does not exist in a vacuum and cannot alter this conclusion. The Supreme Court has instructed that "[t]he fact that a gun is treated momentarily as an item of commerce does not render it inert or deprive it of destructive capacity. Rather, as experience demonstrates, it can be converted instantaneously from currency to cannon." Smith v. United States, 508 U.S. 223, 240, 113 S.Ct. 2050 (1993); see also United States v. Hallum, 103 F.3d 87, 89 (10th Cir.1996) ("[A] firearm's

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-8proximity and potential to facilitate the offense is enough to prevent application of U.S.S.G. § 5C1.2(2).")(citing United States v. Burke, 91 F.3d 1052 (8th Cir.1996)); cf. United States v. Pellegrini, 929 F.2d 55, 56 (2d Cir.1991)(per curiam) (holding that, for purposes of U.S.S.G. § 2D1.1(b)(1), a weapon found at a place where drugs were stored was sufficient to be considered "possessed during the commission of the offense"); United States v. Schaper, 903 F.2d 891, 896 (2d Cir.1990) (concluding that, under § 2D1.1(b)(1), when the defendant stored narcotics in his house and used the house to arrange narcotics deals, "[t]he presence of a weapon on [the defendant's] premises cannot be said to be unrelated to the ongoing narcotics trade"). There is also a long line of judicial authority recognizing the reality that drugs and guns go hand-in-hand. See, e.g., United States v. Crespo, 834 F.2d 267, 271 (2d Cir.1987)("We often have taken judicial notice that, to substantial dealers in narcotics, firearms are as much tools of the trade as are the commonly recognized articles of narcotics paraphernalia."); United States v. Wiener, 534 F.2d 15, 18 (2d Cir. 1976)("Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment."). IV. Acceptance of Responsibility. The United States still recommends that the defendant receive a three level reduction in his offense level for acceptance of responsibility. The withdrawal of the role stipulation and the claim for safety valve do not alter this conclusion. The defendant admitted his culpability to the arresting officers within minutes of his arrest, and he has never deviated from this admission. The confusion about a role enhancement that was generated during the prior proceedings is not a

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-9function of the defendant refusing to accept responsibility but rather is more aptly attributed to a good faith mistake on the part of defense counsel about the terms of the plea agreement. V. The Court Does Need To Convene An Evidentiary Hearing. Given the state of the record, the United States does not see the need for an evidentiary hearing on any issue. VI. Downward Departure for Family Ties & Extraordinary Post-Arrest Rehabilitation. The defendant seeks a downward departure based on his post-arrest rehabilitation. At the March 19, 2004 sentencing hearing, the defendant's fiancé and his employer addressed the Court about his family ties and his post-arrest rehabilitation. The United States takes no position as to the merits of these arguments. Rather, the Court is left to exercise its sound discretion. VII. The Impact of Blakely On This Case. In addition to discussing the agreements outlined above, the Government submits this sentencing memorandum to address three principal issues arising from the Supreme Court's decision in Blakely v. Washington, 2004 WL 1402697 (June 24, 2004).6 FIRST, consistent with principles of stare decisis and Blakely's disavowal of any intent to rule on the validity of the United States Sentencing Guidelines, the Court should conclude that

Consideration o f the impact of Blakely to the case at bar is a relatively academic exercise, however, since the role ad justment stipulatio n is no longer an issue b efore the Co urt. Instead, the o nly possible outstanding Blakely issue that the Government can identify is whether the defendant's stipulation to relevant conduct of 50 to 150 grams of cocaine base (level 32) was made knowingly because, at the time of his guilty plea, it was axiomatic that relevant conduct had to be proven by a prepo nderance of the evidence before a sentencing judge, whereas one interpretation of Blakely holds that relevant cond uct that raises a defendant's base offense level ab ove the drug quantity charged in the indictment must be proven beyond a reasonab le doubt to a jury. Thus the Government submits that the Court should inquire of the defendant whether he wishes to withdraw his stipulation on re levant conduct. Again, based o n conversations with defense counsel, and given that the Government seized between 50 and 150 grams of cocaine base from Mr. Cordero, it is expected that the defendant will not seek to withdraw his stipulation.

6

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-10Blakely does not affect this Court's authority to determine further sentence-enhancing facts by a preponderance of the evidence consistent with the Guidelines. See Part I, infra. SECOND, if the Court concludes that: (1) Blakely applies to the Guidelines, (2) the defendant did not knowingly stipulate to relevant conduct of 50 to 150 grams of cocaine base (PSR @ ¶ 30), and (3) Blakely would require on the facts of this case a further jury determination of relevant conduct, the Court should apply statutory severability analysis to conclude that the Guidelines should not be applied at all to this case. Instead, the Court should revert to preGuidelines indeterminate sentencing, with due consideration of what sentence would otherwise be prescribed under the Guidelines. See Part II, infra. THIRD, in addition to stating the sentence it imposes and how its sentence is affected (if at all) by Blakely, the Court should state alternative sentences that it would impose in the event that Blakely is interpreted differently by a higher court. This precautionary step may vastly simplify any appellate review and eliminate the necessity for further remand proceedings. The record should make clear what sentence the Court would impose (1) under the Guidelines without regard to Blakely; (2) under the Guidelines if Blakely applies to sentence-enhancing facts; and (3) under pre-Guidelines indeterminate sentencing principles, with due regard to what the pre-Blakely Guidelines sentence would otherwise be. I. Blakely Does Not Limit the Court's Authority to Apply Upward Adjustments under the Sentencing Guidelines a. This Court Is Bound by Supreme Court and Circuit Court Precedent Upholding the Guidelines.

In Blakely v. Washington, 2004 WL 1402697 (June 24, 2004), the Supreme Court applied the rule of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), to invalidate a sentencing

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-11enhancement, imposed pursuant to state law, that increased the sentence beyond the range authorized by Washington state's statutory sentencing guidelines regime. The Court explained that, because the facts supporting the enhancement were "neither admitted by [the defendant] nor found by a jury," the sentence violated the Sixth Amendment right to trial by jury. 2004 WL 1402697, at *4. Blakely did not invalidate the United States Sentencing Guidelines, nor did it hold that its rule applies to the Guidelines. See 2004 WL 142697, at *6 n.9 ("[t]he Federal Guidelines are not before us, and we express no opinion on them"); see also Apprendi, 530 U.S. at 497 n.21 (same). Indeed, in Apprendi itself, the Supreme Court expressed no view on the Guidelines beyond "what this Court has already held." Id. (citing Edwards v. United States, 523 U.S. 511, 515 (1998)). What the Supreme Court has "already held" about the Guidelines therefore continues to provide the governing principle ­ and Supreme Court rulings have consistently upheld the Guidelines against constitutional attack and underscored their unique status within our constitutional scheme. See, e.g., Mistretta v. United States, 488 U.S. 361 (1989). Indeed, the Supreme Court has found that so long as a sentence does not exceed the statutory maximums established by Congress for the offense of conviction, a Guidelines sentence can (in fact, sometimes must) be based on judge-found conduct not proved to a jury, see Edwards v. United States, 523 U.S. 511, 514-15 (1998); conduct not charged in the indictment, see Witte v. United States, 515 U.S. 389, 399-401 (1995); and conduct of which a defendant is acquitted but is established at sentencing by a preponderance of the evidence. See United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam). Moreover, the Court has explicitly held that lower courts

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-12are bound not only by the Guidelines, but by their policy statements and commentary as well. See Stinson v. United States, 508 U.S. 36, 42 (1993). Furthermore, the Second Circuit has ruled that ordinary upward adjustments and departures under the federal Sentencing Guidelines may be made by the sentencing court based on a preponderance of the evidence, provided that these adjustments do not result in a sentence that exceeds that maximum penalty prescribed by Congress. See United States v. Thorn, 317 F.3d 107, 124 (2d Cir.), cert. denied, 538 U.S. 1064 (2003); United States v. Norris, 281 F.3d 357, 359 (2d Cir.), cert. denied, 536 U.S. 949 (2002). This court is required to follow these

binding precedents. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) ("it is [the Supreme Court's] prerogative alone to overrule one of its precedents"); Agostini v. Felton, 521 U.S. 203, 237 (1997) (courts of appeals must leave to "this Court the prerogative of overruling its own decisions," even if such a decision "appears to rest on reasons rejected in some other line of decisions") (quotations and citations omitted). Thus, "`[i]f a precedent of th[e] Supreme Court has direct application in a case ... the Court of Appeals should follow the case which directly controls, leaving to th[e] [Supreme] Court the prerogative of overruling its own decisions.'" United States v. Quinones, 313 F.3d 49, 68 (2d Cir. 2002) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, (1989)). Accordingly, this Court should decline to conclude that the Blakely decision applies to disable a federal sentencing judge from imposing sentence on the basis of sentence-enhancing facts that have been determined by the judge by a preponderance of evidence at sentencing.

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-13b. The Supreme Court Has Consistently Upheld the Constitutionality of Guidelines Sentences Based on Judge-Found Facts.

The Sentencing Reform Act of 1984 significantly altered the way in which district courts sentence persons convicted of federal crimes. Before the Act, Congress defined broad sentencing ranges, and then left it to individual judges to set sentences within those ranges on a case-by-case basis. See Mistretta, 488 U.S. at 364 (pre-Guidelines, "Congress delegated almost unfettered discretion to the sentencing judge to determine what the sentence should be within the customarily wide range"). With the Act, Congress delegated the authority to channel that judicial discretion to the Sentencing Commission, an "independent commission in the judicial branch of the United States." 28 U.S.C. 991(a); see Mistretta, 488 U.S. at 385. Congress charged the Commission with devising a system of sentencing ranges for categories of offenses and defendants according to various specified and unspecified factors. See 28 U.S.C. 994(a)-(e).7 In response, the Commission chose to create a system requiring a court to consider a defendant's "real" offense (i.e., his actual conduct), even if that conduct is not part of the charged offense of conviction. See Guidelines Manual Ch. 1, Pt. A, intro. comment. 4(a) (2002) (now included as an editorial note following Guidelines § 1A1.1). The Commission also specified that such guidelines determinations were to be made within the statutory maximums established by Congress in the United States Code. See Guidelines § 5G1.1; see also Witte, 515 U.S. at 401-02 (noting that Guidelines channel the discretion of sentencing courts to take into account related

See also 28 U.S.C. 991(b)(1)(B) (Commission directed to establish sentencing policies that "provide certainty and fairness in meeting the purposes of sentencing" and that "avoid[] 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").

7

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-14uncharged misconduct in imposing sentence up to the statutory maximums, in a manner comparable to pre-Guidelines practice). In Mistretta, 488 U.S. at 412, the Supreme Court upheld the constitutionality of both the federal Guidelines and the Sentencing Commission. In the face of nondelegation and separation of powers challenges, it held that "Congress neither delegated excessive legislative power [to the Commission] nor upset the constitutionally mandated balance of powers among the coordinate Branches" by placing the Commission within the judicial branch. Id. at 384-85, 412; see also id. at 412 (Constitution does not prohibit Congress "from calling upon the accumulated wisdom and experience of the Judicial Branch in creating policy on a matter uniquely within the ken of judges").8 With the overall constitutionality of the Guidelines established, the Court was then called upon to evaluate various of the Guidelines' real world applications. Repeatedly, it upheld Guidelines sentences based on judge-found facts neither submitted to nor considered by a jury. Indeed, in Watts, 519 U.S. at 153-54, the Court upheld an enhancement, under Guidelines § 2D1.1(b)(1), for possession of a gun in connection with a drug offense, even though the jury had acquitted the defendant of the firearms charge under 18 U.S.C. 924(c). The Court noted that Guidelines § 1B1.3 -­ the "relevant conduct" rule -­ "directs sentencing courts to consider all other related conduct, whether or not it resulted in a conviction." 519 U.S. at 153-54; see also U.S.S.G. § 1B1.3, comment., backg'd ("conduct that is not formally charged or is not an element

The courts of appeals have widely held that the Guidelines also compo rt with due process. Se e, e.g., United States v. Govan, 152 F.3d 10 88, 1094 (9 th Cir. 19 98); United States v. Piper, 35 F.3d 611 , 620 (1 st Cir. 1994); United States v. Spencer, 25 F .3d 1 105 , 111 2 (D .C. Cir. 199 4); United States v. Kerr, 13 F.3d 203, 207 (7 th Cir. 1993); United States v. Guajardo, 950 F.2d 20 3, 206 (5 th Cir. 19 91); United States v. Delibac, 925 F.2d 610, 614-15 (2d Cir. 1991).

8

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-15of the offense of conviction may enter into the determination of the applicable guideline sentencing range"). Applying that principle, the Court held that the sentencing court could consider the defendant's acquitted conduct (the firearms use) in determining his Guidelines sentencing range (for drug trafficking), so long as the acquitted conduct was proved by a preponderance of the evidence. 519 U.S. at 156-57; see id. at 154 ("sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction"). Other cases, too, have upheld Guidelines sentences based on related criminal conduct proved to a judge at sentencing, and not underlying a jury's verdict of guilt. See Witte, 515 U.S. at 399-400 (judge may impose higher Guidelines sentence on defendant convicted of possessing marijuana based on judge's finding that offender also engaged in uncharged cocaine conspiracy); Edwards, 523 U.S. at 514-15 (even if jury convicted defendant of cocaine-only conspiracy, judge may impose higher Guidelines sentence based on finding that defendant's conduct included crack-related activities); United States v. Dunnigan, 507 U.S. 87, 95-96 (1993) (court may impose Guidelines enhancement for perjury at trial when sentencing defendant for offense of conviction). In so ruling, the Supreme Court clearly viewed the Guidelines enhancements not as "statutory maximums" (requiring proof to a jury beyond a reasonable doubt), but as rules channeling the discretion of judges within the congressionally set maximums in the U.S. Code. Indeed, the Court explicitly said as much in Edwards, which it notably cited with approval in Apprendi: Of course, petitioners' statutory and constitutional claims [that the court must base its Guidelines sentence exclusively on the cocaine-only facts found by the jury] would make

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-16a difference if it were possible to argue, say, that the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only conspiracy. That is because a maximum sentence set by statute trumps a higher sentence set forth in the Guidelines. Edwards, 523 U.S. at 515; Apprendi, 530 U.S. at 497 n.21; see also Witte, 515 U.S. at 399-400 (although Guidelines enhancement for uncharged conduct resulted in higher Guidelines range than otherwise would have applied, range "still falls within the scope of the legislatively authorized penalty" and is thus constitutionally permissible); Mistretta, 488 U.S. at 396 (Guidelines "do not . . . establish[] minimum and maximum penalties" for crimes). The Supreme Court has thus analyzed the Guidelines as channeling judicial discretion within congressionally set statutory maximums, not as creating lower statutory maximums for the offenses defined by Congress. To upset that understanding now -- and either invalidate the Guidelines altogether, or hold that each of the myriad upward adjustments, enhancements, and departures in the Guidelines must be proved to a jury beyond a reasonable doubt -- would wreak havoc on the federal criminal justice system. In 2002 (the most recent year for which statistics are available), 64,366 federal defendants were sentenced under the Guidelines. See 2002 Source Book of Federal Sentencing Statistics (www.ussc.gov). At this moment, thousands of cases (at every stage of the proceedings, from indictment, plea negotiation, trial, sentencing and appeal) could be unsettled by such a ruling. This Court should not place the system in such jeopardy and turn back the clock on years of sentencing reform -- especially where, as discussed below, this outcome is not mandated by Blakely.

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-17c. The Commission-promulgated Federal Guidelines Operate Differently From Washington State's Legislatively Enacted Guidelines.

The Blakely decision involved two Washington state statutes, one broad and one specific, that set forth various maximum penalties for criminal offenses. The first prescribes maximum sentences depending on whether a crime is a Class A felony (life maximum), Class B (ten years), or Class C (five years). See Wash. Rev. Code § 9A.20.021(1). The second statute categorizes individual crimes by "seriousness level" which, along with an offender's criminal history score, yields a "presumptive sentencing range," which is set forth in the state code in the form of a sentencing grid. See Wash. Rev. Code § 9.94A.310(1) (Table 1) (now revised and codified at Wash. Rev. Code § 9.94A.510). The statute authorizes a court to impose a sentence above the presumptive range if it finds "substantial and compelling reasons justifying an exceptional sentence." Blakely, 2004 WL 1402697, at *2. The statute includes an illustrative, nonexhaustive list of possible aggravating factors justifying an exceptional sentence. Id. Blakely pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm, a Class B felony. The sentencing court did not sentence him to the presumptive range set by the statutory guidelines (49-53 months) for his crime, but imposed an "exceptional sentence" of 90 months based upon its finding that Blakely had acted with "deliberate cruelty" in committing the offense. See 2004 WL 1402697, at * 3-4. Applying the rule of Apprendi -- that "other 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," 530 U.S. at 490 -- and relying on Apprendi and Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court held that "the `statutory maximum' for Apprendi purposes is the maximum

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-18sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 2004 WL 1402697, at * 4. Because "deliberate cruelty" was neither proved to a jury nor admitted by Blakely in his plea, the Court ruled that the enhanced sentence was unconstitutional. Id. at * 4, 6. As in Apprendi and Ring, the legislative scheme in Blakely created two distinct statutory maximums. It broadly classified and provided broad maximum ranges for offenses as A, B, or C felonies, and it also provided crime-by-crime guidelines ranges, from which a judge could depart upward based on his or her own findings of aggravating factors. See 2004 WL 1402697, at * 2. That is not how the federal system operates. Congress has only created one set of statutory maximums for federal crimes, and those maximums are codified in the United States Code. The Guidelines operate within those maximums, see Guidelines § 5G1.1, and they set forth a host of factors (the current Manual runs nearly 500 pages) that courts are to consider, both in aggravation and mitigation, to individualize a particular sentence. These factors correspond to those that judges have always taken into account -­ such as the manner in which a crime was committed, the nature of the victim, the defendant's role in the offense, whether he obstructed justice at trial, and whether he accepted responsibility for his actions -- in fashioning sentences. See Watts, 519 U.S. at 152.9 As discussed above and as the Supreme Court has indicated, the federal Guidelines were never intended to operate on the same footing as the statutory maximums. Indeed, that very assumption sits at the heart of the Guidelines: "they do not bind or regulate the primary conduct
9

Indeed, in formulating the Guidelines, the Commission canvassed prior sentencing practice and attempted to identify and to assign weights to all the factors that judges traditionally used in determining appropriate sentences. See United States Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statem ents 16-17 (198 7).

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-19of the public or . . . establish[] minimum and maximum penalties for every crime. They do no more than fetter the discretion of sentencing judges to do what they have done for generations -­ impose sentences within the broad limits established by Congress." Mistretta, 488 U.S. at 396. Further, as Mistretta made clear, the Guidelines and the Sentencing Commission that promulgates them are constitutionally unique. The Commission is not a legislature. It is an "independent commission in the judicial branch of the United States." 28 U.S.C. 991(a). In formulating the federal Guidelines, "the Commission enjoys significant discretion." Mistretta, 488 U.S. at 657. The Guidelines are not statutes but sentencing rules -- binding on sentencing courts by statute, see Mistretta, 488 U.S. at 367; Stinson, 508 U.S. at 42 (citing 18 U.S.C. § 3553(b)) -- but nevertheless the unique product of a special delegation of authority. Mistretta recognized that the substance of Congress' delegation to the Commission was essentially nonlegislative in character. Like Congress' delegation of rulemaking authority to the judicial branch to prescribe rules of procedure and evidence, see, e.g., 28 U.S.C. 2072, the delegation to the Commission to make sentencing rules "simply leaves with the Judiciary what long has belonged to it." 488 U.S. at 396. Or, put another way: Prior to the [Sentencing Reform] Act, the Judicial Branch, as an aggregate, decided precisely the questions assigned to the Commission: what sentence is appropriate to what criminal conduct under what circumstances. It was the everyday business of judges . . . to evaluate and weigh the various aims of sentencing and to apply those aims to the individual cases that came before them. The Sentencing Commission does no more than this, albeit basically through the methodology of sentencing guidelines, rather than entirely individualized sentencing determinations. 488 U.S. at 395; id. at 391 ("Commission's functions . . . are clearly attendant to a central element of the historically acknowledged mission of the Judicial Branch"); see also United States v. Kinter, 235 F.3d 192, 201 (4th Cir. 2000) ("the Commission's act of establishing sentencing

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-20ranges in the Guidelines is categorically different from the legislative act of setting a maximum penalty in a substantive criminal statute"). Blakely, of course, did not rest on the fact that the Washington guidelines scheme was legislatively enacted. Nor, however, did it say that the source of the "statutory maximum" (whether congressional statute or commission guideline) for Apprendi purposes is immaterial. Imposing Apprendi's requirements only when the legislature has made a defendant's exposure to increased punishment contingent on findings of fact that the legislature itself specifies vindicates Apprendi's animating constitutional values. The Sixth Amendment right to trial by jury, and the due process right to insist on rigorous proof to establish guilt of an offense, are fully protected when there must be a jury finding beyond a reasonable doubt on the facts that establish the legislatively prescribed maximum punishment to which a defendant is exposed. Democraticallyenacted statutes provide one of the most basic contracts between a citizen and his or her government. Far more than the intricate, extensive, and many-layered determinations in the Guidelines manual, the U.S. Code tells the people of the United States what is and is not expected of them, and warns them of the ultimate consequences should they refuse to follow the rules. As Justice Scalia said in Apprendi: I think it not unfair to tell a prospective felon that if he commits his contemplated crime he is exposing himself to a jail sentence of 30 years ­- and that if, upon conviction, he gets anything less than that he may thank the mercy of a tenderhearted judge. . . Will there be disparities? Of course. But the criminal will never get more punishment than he bargained for when he did the crime, and his guilt of the crime (and hence the length of the sentence to which he is exposed) will be determined beyond a reasonable doubt by the unanimous vote of 12 of his fellow citizens. 530 U.S. at 498 (Scalia, J., concurring) (emphasis in original); see also Harris v. United States, 536 U.S. 545, 562 (2002) ("[s]ince sentencing ranges came into use, defendants have not been

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-21able to predict from the face of the indictment precisely what their sentence will be; the charged facts have simply made them aware of the `heaviest punishment' they face if convicted. Judges, in turn, have always considered uncharged `aggravating circumstances' that, while increasing the defendant's punishment, have not swelled the penalty above what the law has provided for the acts charged.") (plurality opinion) (citations, internal quotation marks omitted). In sum, the Supreme Court decisions before Blakely uniformly upheld the Guidelines system as written: a tightly integrated system of sentencing rules for judges to apply based on their findings of fact. Blakely explicitly declined to express a view on the federal Sentencing Guidelines, and the federal Sentencing Guidelines operate in a manner that is distinguishable from the Washington State guidelines. Unless and until the Supreme Court decides that Blakely invalidates the federal Sentencing Guidelines, this Court accordingly should continue to adhere to the law as it stands. II. If the Court Holds That Blakely Precludes Application of the Guidelines Based on Judge-made Factual Findings in a Given Case, Then the Sentencing Court Should Impose Sentence Within the Statutory Maximum and Minimum, with Due Regard to the Sentences Prescribed by the Guidelines for Similar Offenses and Offenders a. Guidelines Enhancements And The Procedures For Applying Them Are Not Severable From The Guidelines As A Whole

If this Court disagrees with the Government's argument and holds that Blakely applies to the Guidelines, then the Court must decide how sentencing is to be conducted. The Guidelines contain many "enhancement" provisions -- i.e., provisions that provide for a higher offense level or that authorize an upward departure from a defendant's Guidelines sentencing range based on particular factual findings. If Blakely applies to the Guidelines, and absent a waiver by the defendant, those enhancement provisions generally could be applied in a given case only if,

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-22contrary to the current system of judge-made findings, the necessary facts have been charged and found by a jury beyond a reasonable doubt.10 By contrast, provisions that reduce a defendant's sentencing range or authorize a downward departure could still be applied, as intended, by a court at sentencing based on findings by a preponderance of the evidence. See Harris v. United States, 536 U.S. 545 (2002); see also Blakely, 2004 WL 1402697, at * 5 (rule does not apply to cases involving "sentencing scheme[s] that imposed a statutory minimum if a judge found a particular fact"); McMillan v. Pennsylvania, 477 U.S. 79 (1986). A requirement that enhancing -- but not reducing -- facts have to be submitted to the jury and proven beyond a reasonable doubt would distort the operation of the sentencing system in a wholesale manner that was neither contemplated nor intended by Congress or the Sentencing Commission. Accordingly, rather than attempting to apply the Guidelines with a "Blakely overlay" of jury factfinding, a court should simply conclude that the parts of the Guidelines system that are unconstitutional (the finding of sentence-enhancing facts by a sentencing judge using a preponderance-of-evidence standard of proof) are inseverable from the Guidelines as a whole. The result is that, in any case in which Blakely precludes judicial factfinding under the Guidelines, statutory severability analysis instructs that the Guidelines as a whole would be invalidated as a binding set of rules governing sentences that must be imposed. When a court finds some parts of a statutory scheme unconstitutional, the court must inquire into the severability of the remaining provisions. The court of course "should refrain from invalidating more of the statute than necessary." Alaska Airlines, Inc. v. Brock, 480 U.S.
10

Of co urse, the jury finding requirements do not ap ply to sentence-enhancing facts that stem from or are related to a defendant's prior conviction history. See Blakely, 2004 WL 1402697 at *2 (quoting Apprendi); United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (noting that "we read Apprendi as leaving to the judge, consistent with due process, the task of finding not only the mere fact of previous convictions but other related issues as well").

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-23678, 684 (1987). Accordingly, "[w]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of th[e] court to so declare, and to maintain the act in so far as it is valid." Alaska Airlines, 480 U.S. at 684. But where the remaining provisions are not severable, they too are rendered invalid by the holding of unconstitutionality. The question whether the unconstitutional provisions are severable turns on an assessment of whether Congress would have enacted the provisions that remain constitutional absent the others. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999) ("The inquiry into whether a statute is severable is essentially an inquiry into legislative intent."). As the Supreme Court has stated the rule, "[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independent of that which is not, the invalid part may be dropped if what is left is fully operative as law." Buckley v. Valeo, 424 U.S. 1, 108 (1976) (quoting Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 234 (1932)); INS v. Chadha, 462 U.S. 919, 932, 934 (1983) (same; noting that what remains after severance of unconstitutional legislative veto is "`fully operative' and workable administrative machinery" and therefore is severable). Under those principles, the "relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress" after the unconstitutional provisions have been severed. Alaska Airlines, 480 U.S. at 685. If the statute will not function in a manner Congress intended, then the entire statute must be eliminated, and the basic policy choices in designing a new, constitutional scheme left up to Congress. The court has no

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-24authority to "rewrite [the] statute and give it an effect altogether different" from what Congress enacted. Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330, 362 (1935). When Congress enacted the Sentencing Reform Act, there is no doubt that the system Congress had in mind was one based on determinations by courts, not juries, of facts necessary for sentencing. And there is no doubt that the Commission structured the Guidelines for use in such a system. Eliminating the parts of the Guidelines scheme that would be unconstitutional if Blakely applies to the Guidelines would leave a remainder that is not severable -- i.e., that could not operate in the manner that Congress intended. For that reason, in any case in which Blakelytype procedures would have to be applied to determining facts necessary for Guidelines enhancements, the Guidelines as a whole would no longer be applicable as binding authority. For example: · Application by judges. Congress intended the Guidelines to be applied by

judges at sentencing, not by juries. That is explicit in Congress's basic command to the Sentencing Commission to promulgate a set of Guidelines. 28 U.S.C. 994(a)(1) ("The Commission . . . shall promulgate and distribute to all courts . . . guidelines . . . for use of a sentencing court in determining the sentence to be imposed in a criminal case.") (emphasis added). Those Guidelines to the sentencing court shall "take . . . into account," insofar as relevant, "the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense" and "the nature and degree of the harm caused by the offense," 28 U.S.C. 994(c)(2) and (3), and the defendant's "role in the offense," 28 U.S.C. 994(d)(9). Congress accordingly specified that the "sentencing court" -- not the jury -- shall make the factual determinations on those factors.

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-25The provisions for appeal similarly establish Congress's intent that courts -- not juries -should make the factual determinations necessary to apply the Guidelines. Under 18 U.S.C. 3742(d), courts of appeals "shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and . . . shall give due deference to the district court's application of the guidelines to the facts" (emphasis added). Moreover, Congress provided for courts of appeal to determine "whether the sentence . . . was imposed in violation of law" or "was imposed as a result of an incorrect application of the sentencing guidelines," 18 U.S.C. 3742(c); those standards are obviously directed at sentencing courts, and the statute makes no provision for review of jury verdicts. Similarly, Congress provided for equal rights of appeal for the Government and the defendant, 18 U.S.C. 3742(a) and (b), although Government appeals of jury factual findings at a criminal trial are ordinarily impossible under the Double Jeopardy Clause. United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). See also Comprehensive Crime Control Act of 1983, Sen. Rep. No. 98-225, at 65 (projected guidelines "are designed to structure judicial sentencing discretion") (emphasis added); id. at 155 (noting importance of appellate review, which is "crucial to the functioning of the sentencing guidelines").11 · Preponderance of the evidence. Under the Guidelines, sentencing

determinations are made by judges by a preponderance of the evidence; the reasonable-doubt standard applicable to jury findings is entirely absent. As the Commission explained, "use of a

See also Guidelines § 1B 1.2 (pro vision clearly directed to courts (not juries) to "[d]etermine" facts relevant to application of the Guideline s); Guidelines § 1B 1.2 appl. n.2 (G uidelines manual "directs the court, once it has determined the applicable guideline . . . under § 1B 1.2(a) to determine any applicab le specific offense characteristics (under that guidelines) and any other applicable sentenc ing factors pursuant to the relevant conduc t definition in § 1B1.3.") (emphasis added); Fed. R. Crim. Pro. 32(i) (setting forth procedure for court to resolve issues under the Guidelines at sentencing).

11

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-26preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case." Guidelines § 6A1.3 comment. See also United States v. Watts, 519 U.S. 148, 155 (1997) (per curiam) (noting "the significance of the different standards of proof that govern at trial and sentencing" under the Guidelines). · Rules of Evidence. Like any sentencing determination, determinations on

Guidelines enhancements were intended to be made by the court based on evidence that may not be admissible before a jury under ordinary rules of evidence. See 18 U.S.C. 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."); Sentencing Guidelines § 6A1.3 (sentencing court in resolving disputed issues "may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy"); Fed. R. Evid. 1101(d)(3) (Federal Rules of Evidence not applicable in sentencing proceedings); United States v. Duverge Perez, 295 F.3d 249, 254 (2d Cir. 2002) (noting that the "rules of evidence do not apply to sentencing proceedings" and discussing "broad discretion" of district court discretion "as to what types of procedure are needed at a sentencing proceeding for determination of relevant disputed facts") (internal quotations omitted). To recap, a system under which Guidelines enhancements (but not reductions) had to be submitted to a jury for determination beyond a reasonable doubt would contravene the clear intent of Congress and the Sentencing Commission on each of the above points. To be sure, a

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-27sentencing system that incorporated jury findings on some factual issues with judicial findings on others could be created. But it is not "within the province of the courts to fashion a remedy," United States v. Jackson, 390 U.S. 570, 579 (1968), that would depart so dramatically from Congress's intent (and that of the Sentencing Commission) in the unified Sentencing Guidelines as promulgated. Although "[s]tatutes should be construed to avoid constitutional questions," this "interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature." United States v. Albertini, 472 U.S. 675, 680 (1985). To do so, "while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, § 1 of the Constitution." Id. As one district court has recently concluded, adding a jury overlay to application of Sentencing Guidelines would "effectively require[] the courts to redraft the sentencing statutes and implementing Guidelines." United States v. Croxford, 2004 WL 1462111 at * 10 (D. Utah June 29, 2004) (Cassell, J.). There has never been any determination by Congress, the Sentencing Commission, or any other body that the sentences that resulted from such a patchwork system would be the just and appropriate sentences that satisfied the goals of sentencing as set forth by Congress. Congress set forth a number of goals in the Sentencing Reform Act. It provided that "[t]he purposes of the United States Sentencing Commission are to . . . establish sentencing policies and practices for the Federal criminal justice system that . . . assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code", to "provide certainty and fairness in meeting the purposes of sentencing [and] avoiding unwarranted sentencing disparities" and to "reflect . . . advancement in knowledge of human behavior as it relates to the criminal justice process." 28 U.S.C. 991(b); see 18 U.S.C. 3553(b).

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-28The Sentencing Commission designed the Guidelines, including the sentencing ranges, to provide for sentences that satisfied those goals when the Guidelines were applied by judges under the existing system. Neither Congress nor the Commission has ever made any determination that the sentences that resulted from applying enhancements (but not reductions) only if they were first proven to a jury beyond a reasonable doubt would be just or appropriate sentences for the crimes at issue. They might be too low (because some enhancements simply could not as a practical matter be proven to a jury, because the beyond-a-reasonable-doubt standard is too high, or for other reasons) or they might be too high (because presumably a reviewing court could not overturn a jury verdict on the applicability of an enhancing fact with the same ease that it could overturn a judge's finding on that fact). But, either way, there is no reason to believe that applying the Guidelines in this way would result in sentences that the Commission (or Congress) believed were appropriate. See Guidelines § 1B1.11 ("The Guidelines Manual in effect on a particular date shall be applied in its entirety."). In addition, among the most important goals of the Sentencing Reform Act was "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. 3553(a)(6). Relatedly, the Guidelines themselves embody a system under which defendants are punished based in large measure on the real facts of the case, not merely the offense that the prosecutor has charged. If the Guidelines are applied with a Blakely overlay requiring submission of enhancing (but not other) facts to the jury, then those features of the system cannot be realized. It would likely be impossible, as a practical matter, to charge and prove to a jury beyond a reasonable doubt all enhancing factors in all cases. The result would be much greater disparity among defendants whose criminal conduct was in

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-29fact quite similar. Moreover, the result would be to change the Guidelines' intended creation of a system of reliance in part on the defendant's "real offense" into a system in which the court is precluded in large part (as to enhancing factors, at least) from relying on the defendant's real offense and would have to rely on the charged offense instead. In short, the scheme that would result from trying to superimpose the jury system on enhancements (but not reductions) under the Guidelines would put in place a scheme that is so different from what Congress enacted (and the Sentencing Commission thought it was promulgating) that it would in essence be judicial lawmaking, not effectuation of congressional intent. In those circumstances, the proper remedy is to permit Congress to make the policy choices necessary to put into place a constitutional sentencing system and to revert, for the present time, to a pre-Guidelines regime of indeterminate sentencing. · Complexity of submitting Guidelines enhancements to the jury. Because

the factors that go into a Guidelines sentence were intended to be applied by judges, not juries, they are not well-suited to submission to juries. The result of attempting to submit them to juries could be extraordinary complexity, followed by lengthy and extensive appellate proceedings to determine whether the jury had been correctly instructed. Typically, juries have to make a few factual determinations on the limited number of elements of an offense in order to determine whether a defendant is guilty. Those elements have usually been refined through years of judicial decisions, and the instructions given to juries have become standardized. The sudden addition of numerous Guidelines enhancements to the list of facts that juries must decide could dramatically complicate the task of instructing juries and obtaining valid verdicts. As Judge Cassell recently explained in Croxford, "the list of findings

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-30contemplated by the Guidelines is extensive and nuanced, modified and interpreted regularly in numerous court opinions, creating a task much better suited to judges than to juries." 2004 WL 1462111, at * 10. A bank robbery case, for example, could require a jury to determine factors regarding the nature of the offense [under Guidelines § 2B3.1] such as (1) the nature of the institution robbed; (2) the presence of, brandishing of, or other use of, a firearm; (3) the making of a death threat; (4) the presence of ordinary, serious, or permanent or life threatening bodily injury; (5) any abduction; (6) any physical restraint; (7) the taking of a firearm; (8) the taking of drugs; and (9) the value of property taken; and further factors [under Chapter 3B of the Guidelines] regarding the defendant's role in the offense such as (10) aggravating role; (11) mitigating role; (12) abuse of a position of trust; (13) use of a special skill; and (14) use of a minor; and further factors [under Chapter 3A of the Guidelines] regarding the victim such as (15) hate crime motivation; (16) vulnerable victim; (17) official victim; (18) terroristic motivation; and further factors concerning (19) obstruction of justice [under § 3C1.1]; and (20) acceptance of responsibility [under § 3E1.1] -- not to mention another dozen or so grounds for departing upward or downward from the general guidelines calculations. Croxford, 2004 WL 1462111, at * 17. The jury would have to be instructed correctly on each of these factors, and the jury's verdict would presumably be subject to reversal on appeal if the instructions were incorrect. See also United States v. Medas, No. 03 CR 1048 (E.D.N.Y. July 1, 2004) (Glasser, J.) (discussing practical difficulties posed by 20-page supplemental verdict sheet proposed by the Government in light of Blakely decision). · Difficult or impossible application of some Guidelines provisions. Many

provisions of great importance under the Guidelines simply could not be effectively implemented if enhancing factors had to be charged in an indictment and submitted to the jury. Obstruction of justice. The obstruction of justice enhancement, under Guidelines § 3C1.1, is frequently applied when a defendant testifies falsely at trial. Yet at the time of indictment for the offense, the Government will not know whether the defendant will testify falsely or commit other obstructive acts, and it will therefore likely be impossible to indict the

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-31defendant on the facts necessary for this enhancement or submit the issue of obstruction to the jury. Late-discovered factors. There are many other enhancing facts in individual cases that the Government learns of only at or near trial or when a presentence report is prepared. Those facts too would apparently have to be omitted from the sentencing calculation, because they could not be included in the indictment and thus could likely not be submitted to the jury. Guidelines version. Under Guidelines § 1B1.11, "[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced." That provision could not be put into effect if the Guidelines provision at issue has changed between the time of jury deliberations and the time of sentencing. The jury would have been instructed on the Guidelines version in effect at that time, not at the time of sentencing. Relevant conduct. Another very serious problem would arise under the very complex "relevant conduct" rules under Guidelines § 1B1.3. The Guidelines provide that base offense level and offense characteristics should be determined not only on the basis of the offense of conviction, but also on the basis of all of the defendant's "relevant conduct." That includes, inter alia, acts undertaken by others that are "aided, abetted, counseled, commanded, induced, procured or willfully caused by the defendant" and, in the case of conspiracy offenses, "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." Guidelines § 1B1.3(a)(1). Aside from the difficulty of instructing a jury on the dauntingly complex issues arising in applying these definitions, see Guidelines § 1B1.3 comment. (eight-page commentary on relevant conduct rules), requiring jury determinatio