Severability - Sentencing Law and Policy



IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. 03–156 (RWR)

)

XXX XXXXXXX, )

)

Defendant. )

________________________________ )

DEFENDANT’S SUPPLEMENTAL MEMORANDUM IN AID OF SENTENCING

Summary of Argument

The Court has invited Mr. Xxxxxxx and the Government to brief the following questions:

1) whether the provisions of the Sentencing Guidelines that might have been invalidated by Blakely v. Washington, 124 S. Ct. 2531 (2004), are severable or inseverable, and what the consequences are for either outcome; and 2) whether a jury finding as to the date the offenses of conviction occurred is necessary under the reasoning of Blakely in order to impose an enhancement under § 4A1.1 (d) of the Sentencing Guidelines, and if so, whether such a finding was made in this case.

Order, Aug. 18, 2004.

In this brief, Mr. Xxxxxxx responds as follows:

Question 1: The provisions of the Sentencing Guidelines that were invalidated by the Blakely decision are severable. The function at issue can be understood as finding sentencing elements, that is, finding that the government proved beyond a reasonable doubt the elements required for an enhanced offense level beyond the base level under the Guidelines system. The legislative history of the Sentencing Reform Act of 1984 (SRA) shows no particular intention by Congress that judges rather than juries find sentencing elements, and the determinative-sentencing Guidelines system can operate with either judge or jury finding such elements. Moreover, the legislative history does show a very deliberate effort to cabin judicial power, and Blakely’s holding that the Sixth Amendment requires juries rather than judges to find sentencing elements is entirely consistent with Congress’s purposes in enacting the SRA. As a consequence, the Court may, in fact must, pronounce the sentence the Guidelines require for Mr. Xxxxxxx based on those facts necessarily found by the jury in rendering its guilty verdict.

If, however, the judicial fact-finding procedure envisioned by the Guidelines was not severable from the determinative-sentencing substance, the substance of the Guidelines would be inoperative as a whole. The Court could then pronounce any sentence it sees fit, after considering the general principles and factors enunciated in 18 U.S.C. 3553(a).

Question 2: Under Blakely, a jury would have to have find that Mr. Xxxxxxx was under a criminal justice sentence at the time the offense of conviction occurred in order to impose an enhancement under Guidelines §4A1.1(d). In this case, the jury would have to have determined that this offense occurred after December 22, 2002. There is obviously no explicit jury finding to that effect. Nor does the jury’s guilty verdict alone necessarily represent such a finding, because the government both argued and introduced evidence suggesting that Mr. Xxxxxxx’s criminal acts began in November, 2002.

The Judicial Fact-finding Procedure Invalidated by Blakely is Severable From the Determinative –Sentencing Substance Required by the Sentencing Reform Act

1 The Severance Standard

Throwing out the determinative-sentencing baby with the judicial-fact-finding bathwater[1] would disregard the law on severability, as enunciated by the Supreme Court:

The inquiry into whether a statute is severable is essentially an inquiry into legislative intent. [….] We stated the traditional test for severability over 65 years ago: “Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as law.”

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 173, 191 (U.S.1999) (citation omitted, emphasis added). It would also fail to show due deference to Congress’s legislative decision making. "A court should refrain from invalidating more of the statute than is necessary." Regan v. Time, Inc., 468 U.S. 641, 652 (1984). See also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985) (observing that a statute should be "declared invalid to the extent it reaches too far, but otherwise left intact").

Taking the Guidelines as “advisory” only while proceeding to sentence on Guidelines-driven judicial fact-finding, as the government suggests, is tantamount to simple defiance of not just Blakely’s instruction but of Congress itself. That approach would defy Blakely by simply following the Guidelines approach and denying the defendant’s Sixth Amendment right to a jury verdict on the decisive accusations, while giving lip service to Blakely itself. And it would defy Congress in at least three ways: 1) the frustration of Congress’s decision to implement a determinative sentencing system, 2) the rejection of the value judgments made by the Sentencing Commission and approved by Congress[2] regarding specific offense conduct, and 3) the judicial adoption of an alternative Congress expressly rejected: “[t]he Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory.” Mistretta, 488 U.S. at 367.[3]

The government argues that if the Court finds that Blakely applies to the Guidelines it should simply jettison entirely the determinative-sentencing system enacted by Congress, see Government’s Memorandum in Aid of Sentencing, July 30, 2004 (hereinafter “Gov. Memo”) at 13-16, but Blakely clearly does not lead to that result. The Supreme Court expressly said “This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment.” Blakely, at 2540. Judge Posner’s cogent opinion for the 7th Circuit follows up on this point: “Nothing in Blakely suggests that Congress cannot delegate to the Sentencing Commission the authority to decree that possession with intent to distribute 658.5 grams of cocaine base shall be punished by a sentence of at least 360 months though the statutory minimum is only 10 years. All it cannot do under Blakely is take away from the defendant the right to demand that the quantity be determined by the jury rather than by the judge, and on the basis of proof beyond a reasonable doubt.” United States v. Booker, 2004 WL 1535858 (7th Cir., July 9, 2004), cert. granted 2004 WL1713654 (U.S. Aug. 2, 2004) (No 04-104).

2 Blakely Recognizes that Determinative Sentencing Under the Guidelines Has Created Sentencing Elements of Federal Crimes and That the Sixth Amendment Requires Them to be Found Beyond a Reasonable Doubt at Trial by a Jury

In Blakely v. Washington, 124 S.Ct. 2531 (2004) the Court applied “the rule … expressed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): ‘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.” Blakely, 124 S.Ct. at 2536. The Court found that the relevant “statutory maximum” was that of the maximum contained in the “standard range” of the state’s guidelines, not the higher statutory maximum available for the crime itself, looking outside the guidelines system. Id. at 2537. “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. (emphasis in original). “In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ Bishop, supra, §87, at 55, and the judge exceeds his proper authority.” Id. The Court went on to explain that its decision is based on the Sixth Amendment and reflects “the need to give intelligible content to the right of jury trial.” Id at 2538. That right is intended to “ensure [the people’s] control in the judiciary.” Id. “Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict.” Id.

Although the Court in Blakely did not have the Federal Sentencing Guidelines before it, see id. at 2538, n.9, the decision’s application to the Guidelines is fairly clear and was analyzed critically in Justice O’Connor’s dissent:

The fact that the federal Sentencing Guidelines are promulgated by an administrative agency nominally located in the Judicial Branch is irrelevant to the majority’s reasoning. The Guidelines have the force of law, see Stinson v. United States, 508 U.S. 36 (1993); and Congress has unfettered control to reject or accept any particular guideline, Mistretta, 488 U.S., at 393-394.

The structure of the Federal Guidelines likewise does not, as the Government half-heartedly suggests, provide any grounds for distinction. Brief for United States as Amicus Curiae 27-29. Washington's scheme is almost identical to the upward departure regime established by 18 U.S.C. § 3553(b) and implemented in USSG § 5K2.0. If anything, the structural differences that do exist make the Federal Guidelines more vulnerable to attack. The provision struck down here provides for an increase in the upper bound of the presumptive sentencing range if the sentencing court finds, "considering the purpose of [the Act], that there are substantial and compelling reasons justifying an exceptional sentence." Wash. Rev.Code Ann. § 9.94A.120 (2000). The Act elsewhere provides a nonexhaustive list of aggravating factors that satisfy the definition. § 9.94A.390. The Court flatly rejects respondent's argument that such soft constraints, which still allow Washington judges to exercise a substantial amount of discretion, survive Apprendi. Ante, at 2538. This suggests that the hard constraints found throughout chapters 2 and 3 of the Federal Sentencing Guidelines, which require an increase in the sentencing range upon specified factual findings, will meet the same fate. See, e.g., USSG § 2K2.1 (increases in offense level for firearms offenses based on number of firearms involved, whether possession was in connection with another offense, whether the firearm was stolen); § 2B1.1 (increase in offense level for financial crimes based on amount of money involved, number of victims, possession of weapon); § 3C1.1 (general increase in offense level for obstruction of justice).

Indeed, the "extraordinary sentence" provision struck down today is as inoffensive to the holding of Apprendi as a regime of guided discretion could possibly be. The list of facts that justify an increase in the range is nonexhaustive. The State's "real facts" doctrine precludes reliance by sentencing courts upon facts that would constitute the elements of a different or aggravated offense. See Wash. Rev.Code Ann. § 9.94A.370(2) (2000) (codifying "real facts" doctrine). If the Washington scheme does not comport with the Constitution, it is hard to imagine a guidelines scheme that would.

Blakely, 124 S.Ct. 2549-2550 (O’Connor, J., dissenting) (emphasis added).

As Justice O’Connor’s dissent points out, Blakely invalidates judicial finding of Guidelines sentencing factors because such factors are legally binding. The Justice Department has emphasized (as government does in this case) that the Guidelines are promulgated by an administrative agency, and it argues that Guidelines-determined sentences are therefore not “statutory” maximums. The quoted excerpt from Justice O’Connor’s dissent explains why, as a matter of substance, that distinction is irrelevant to Blakely’s interpretation of the interplay between the Guidelines and the Sixth Amendment. The distinction is also wrong as a matter of form; while the Guidelines are promulgated by an agency, the specific sentence ranges provide the relevant statutory maximum because they are made binding by statutory command: “the court shall impose a sentence of the kind, and within the range,” called for under the Guidelines, except where the SRA’s limited departure power applies. 18 U.S.C. §3553(b)(1) (emphasis added).

Blakely essentially recognizes that the SRA has led to sentencing elements with specific sentencing results, which, like elements of the underlying base offense, must be proved to a jury beyond a reasonable doubt in order for the Sixth Amendment to retain its Constitutional meaning. In this case, for instance, the basic elements of the offense are incorporated in the base-offense level of the crime under the Guidelines. U.S.S.G. §2C1.1(b)(2)(A). Conviction necessarily embodies a jury finding on these elements, simply because the Guidelines define the base offense level as that applying to the offenses of extortion and bribery. But the Guidelines also create additional elements that the Government seeks to invoke in this case: existence of a specific loss or benefit amount over $5000 (U.S.S.G. §2B1.1) and commission of the offense while under a criminal justice sentence. U.S.S.G. § 4A1.1(d). These findings lead, by mechanical application of the Guidelines, to specified higher sentencing ranges. Therefore, they constitute elements of sentencing parallel to elements of the underlying offense, and Blakely requires them to be found by the jury in order for the Sixth Amendment to retain its traditional function in a regime of determinative sentencing.

This case demonstrates how the substantive importance of the sentencing elements can not just equal but surpass the importance of the substantive elements of the crime itself. Under the Guidelines regime, proving beyond a reasonable doubt the elements of bribery and extortion, as the government has done, gives Mr. Xxxxxxx a base offense level of 10[4] and exposes him to a maximum sentence of 12 months. But proving the additional sentencing elements argued by the government, that the loss /benefit amount was over $120,000 and that the bribery/extortion was committed while Mr. Xxxxxxx was under a criminal justice sentence, would almost double the offense level (from 12 to 20) and move Mr. Xxxxxxx from Criminal History category I to II. This would essentially triple the available maximum sentence, from 16 to 46 months. In this case, the difference between the base offense maximum and the enhanced maximum, 30 months, is almost double the total base offense exposure standing alone, making the sentencing elements actually more consequential to the defendant than the elements of the underlying crime itself. This case shows the real-world wisdom of the Court’s Blakely ruling. The Sixth Amendment is made hollow by a regime that would take from the jury the right to decide whether the government has proved the elements of an offense punishable by about one year in prison or one punishable by almost four.[5]

3 The Judicial Determination of Sentencing Elements Struck Down by Blakely is Severable From the Determinable Sentencing Regime Enacted in the Sentencing Reform Act of 1984

Analyzing Severability under Mille Lac shows that the substance of the Guidelines survives Blakely. Congress may have assumed continued judicial fact-finding to the extent required to implement determinative sentencing, but there’s no indication that it intended that. Congress did express a clear intention to reduce judicial power, and simply abandoning determinative sentencing rather than bowing to the requirement that the jury exercise the fact-finding power would run counter to that Congressional intent. The specific remedy repeatedly offered by the Justice Department, a return to unchecked judicial sentencing power and hortatory Guidelines, is the one result most clearly rejected by Congress.

1 Congress Expressed No Intention As to Judicial Rather Than Jury Findings in Determinative Sentences

Nothing in the legislative history of Sentencing Reform suggests Congress had any intention, one way or the other, regarding whether judge or jury found the facts on which Sentencing Commission Guidelines would be implemented. It is safe to assume that Congress assumed, to the extent it collectively contemplated the issue at all, that judges would continue to find sentencing facts, but that is not the same as intending or requiring they do so.

2 But Congress Did Intend the Sentencing Reform Act to Curb Judicial Power

Blakely is fundamentally a decision about the Constitutional allocation of power between judge and jury. The Sixth Amendment’s right to jury trial was enacted as a democratic check within the judicial branch against potentially abusive judicial power, reflecting the colonists’ bitter experience with the colonial judiciary. The Supreme Court has emphasized the historical role of the jury as a check to judicial power, especially in criminal cases:

the Constitution and the Amendments in the Bill of Rights show that the Founders were not satisfied with leaving determination of guilt or innocence to judges, even though wholly independent. They further provided that no person should be held to answer in those courts for capital or other infamous crimes unless on the presentment or indictment of a grand jury drawn from the body of the people. Other safeguards designed to protect defendants against oppressive governmental practices were included. One of these was considered so important to liberty of the individual that it appears in two parts of the Constitution. Article III, s 2, commands that the 'Trial of all Crimes, except in Cases of Impeachment, shall be by Jury * * *.' And the Sixth Amendment provides that 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *.' This right of trial by jury ranks very high in our catalogue of constitutional safeguards.

U. S. ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955). See also Jones v. United States, 526 U.S. 227, 245 to 248 (1999) (discussing history of Constitutional right to jury trial). Cf. Blakely, 124 S.Ct. 2531, 2540 (2004) (“the very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury”).

By enacting clearly determinative sentencing consequences to specific acts and circumstances for given crimes, the Sentencing Guidelines beg the constitutional question of whether the judge or jury are authorized to decide that an accused did, in fact, transgress the criminal law in the ways that trigger the specified sentence. In Blakely, the Supreme Court resolved that the right to jury trial of felonies means the right to a jury verdict rather than a judicial opinion on the facts that determine whether the sentence shall be 10 to 16 months or 36 to 47 in cases like this one.

Just as the founders intended to curb judicial power via the Sixth Amendment, Congress and the President intended quite clearly to curb it via the Sentencing Reform Act. The primary goal was clearly to make sentences more uniform, rational and fair. But curbing the unfettered judicial sentencing power that had made sentences varying, random, and unfair was the subsidiary goal by which the primary one was to be accomplished. Unguided and essentially unreviewable judicial discretion in sentencing that had led to a type of small-scale tyranny decried even by some judges exercising it. The leading pre-Guidelines judicial critic of indeterminate sentencing, former Southern District of New York Judge Marvin E. Frankel, decried federal judges’ sentencing powers as “almost wholly unchecked and sweeping” and “terrifying and intolerable for a society that professes devotion to the rule of law.”[6] Moreover, the objective of reducing judicial power was one that appeared more clearly in each successive effort to pass the Guidelines legislation. “[E]ach succeeding Senate bill was, in ways small but cumulatively significant, more restrictive of judicial discretion and more overtly harsh in its sentencing directives.” Kate Stith and Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 Wake Forest L. Rev. 223, 257 (1990) (hereinafter “Stith Article”).

“[T]he legislation’s basic approach” has been described in terms that directly reflect its purpose of reducing judicial power: “institution of a system of presumptive sentencing guidelines to constrain judicial discretion.” Stith Article at 278. “The attitude in the Senate [was] that judges were ‘the problem’ and did not deserve to play a role in ‘the solution’….” Id. “Senator Kennedy shepherded sentencing reform through the Senate… because of a clear conviction that federal sentencing was at the time in ‘utter disarray’ and that judicial discretion worked to the disadvantage of those already disadvantaged by birth and social condition.” Stith Article at 287 (citation omitted).

3 Congress Did Clearly Reject the Combination of Merely Advisory Guidelines and Continued Judicial Power to Pass Random Sentences

The Justice Department urges in reaction to Blakely that judges find the entire Sentencing Reform Act of 1984 unconstitutional, reassume the unilateral power to pass random sentences, but consider the Guidelines as “advisory.” But if there is any aspect of the issue on which the legislative history is clear, it is this: the legislative history is absolutely and unequivocally irreconcilable with DOJ’s urging. When the bill was considered in the 97th Congress, “[t]he sole dissenting vote in the Senate was cast by Senator Mathias, who had unsuccessfully sought to amend the sentencing reform title of the to provide for only advisory sentencing guidelines.” Stith Article at 260 (citing 128 Cong. Rec. 26,535-41 (1982). As the Supreme Court has already warned, “[t]he Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory.” Mistretta, 488 U.S. at 367. This suggestion, which invites open defiance of the clearest relevant expression of Congressional intent, is helpful only in highlighting Justice’s inability to accept the reality of Blakely. No helpful analysis of Blakely’s impact is likely from the Justice Department until the Supreme Court resolves the currently pending Booker and FanFan cases and Justice gives up the desperate effort to avoid Blakely’s determination regarding the operation of the Sixth Amendment in a determinative sentencing regime.

4 Given the Posture of This Case, the Court Must Pronounce a Sentence Within the Range Required by the Base-Offense Level

In this case, it is simply too late for the government to obtain an enhanced sentence for Mr. Xxxxxxx. In other cases, the government can easily maximize Guidelines sentences consistent with Blakely by alleging the relevant enhancements in an indictment and proving them to the jury beyond a reasonable doubt. Indeed, it is well publicized that the government is currently doing just that in other cases. Defendants can obtain the benefit of reductions based on Guidelines factors by introducing evidence on them and seeking appropriate jury instructions.

For the limited number of cases in the procedural posture of the case at bar, however, it is simply too late. One natural implication of Blakely is that sentence-enhancing factors are functionally elements of the crime. In that case, they are subject to the 5th Amendment requirement that the elements of a felony be alleged in an indictment approved by a grand jury. As the Supreme Court said in Blakely’s precursor, “The judge's role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury.” Apprendi v. New Jersey, 530 U.S. 466, 483 n.10 (2000) (emphasis added). This indictment did not charge that the $10,000 bribe of which Mr. Xxxxxxx was convicted caused the outlandish losses the government now asserts post-trial, nor did it assert that Mr. Xxxxxxx acted while under a criminal sentence. It is easy enough to comply with Blakely by alleging enhanced-sentence elements in future cases, but it is too late to do so here, when jeopardy has long since attached.

If Judicial Fact-finding Were Not Severable From the Substance of the Guidelines, Then The Court Would Have Wide Discretion to Select Any Sentence Within the Separate Statutory Maxima Established by the Statutes Creating the Crimes, Guided by the General Principles of 18 U.S.C. § 3553(a)

The substance of Guidelines-determined sentencing is made mandatory by 18 U.S.C. §3553(b), which provides that “[t]he court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4)….” A holding that the entirety of the Guidelines scheme is unenforceable due to the inability to its substance from the procedure of judicial determination of sentencing elements, is a holding that 18 U.S.C. §3553(b) is without effect. In that case, neighboring 18 U.S.C.§ 3553(a) would govern. That subsection requires that the Court “consider” a broad list of circumstances and factors. The subsection does not indicate that the factors are exclusive, nor does it assign any particular weight to any given factor or limit the nature of the consideration to be given. In substance, a holding that the procedure of judicial determination of sentencing elements is inseverable from the substance of the Guidelines would return the Court to the pre-Guidelines era of near absolute judicial power in sentencing. The Court could sentence anywhere from probation up to the limit contained in the clause enacting the crime.

If the Court rules that the entire Guidelines system is stricken under Blakely, Mr. Xxxxxxx asks that it schedule a sentencing hearing at which the government and Mr. Xxxxxxx may raise any arguments on any grounds that either side may believe relevant.

For the Enhancement Under U.S.S.G. §4A1.1(d) to Apply, a Jury Finding is Required, and None Was Made in This Case

1 The Enhancement for Committing the Offense While Under a Criminal Justice Sentence is a Sentencing Element That Blakely Requires to be Proved to a Jury Beyond a Reasonable Doubt

The government seeks an upward departure from the base offense level on the basis that “the defendant committed the instant offense while under any criminal justice sentence[.]” U.S.S.G. § 4A1.1(d). The fact of the commission of this crime while under such criminal-justice sentence goes beyond the mere existence of a prior conviction is thus governed by Blakely’s rule that such “additional findings” require jury determination. Here, to establish that Mr. Xxxxxxx was subject to probation at the time the offenses of conviction occurred, Blakely requires a jury finding that the date of the offense of conviction was proved to a jury beyond a reasonable doubt to be within that period of time that Mr. Xxxxxxx was under a criminal-justice sentence.[7]

2 The Substantial Evidence Introduced by the Government That Offense Conduct Began as Early as the Fall of 2002 Precludes the Possibility that the Guilty Verdict Alone Embodies a Finding as to Timing, And There Was No Explicit Determination that the Offense Occurred While Mr. Xxxxxxx Was Under a Criminal Justice Sentence

The jury’s guilty verdict does not include a finding that Mr. Xxxxxxx committed the offence on or after December 22, 2002, and therefore no sentence enhancement reflecting that is possible.

The government’s theory at trial was that Mr. Xxxxxxx began the crime long before Carlos Elizondo and NuWorld surfaced as his targets for completing it. The government argued that Mr. Xxxxxxx entered into his bribery/extortion scheme long in advance, by maintaining that the asbestos at Benning Road was friable over the course of 2001 and 2002, knowing that the Department of Public Works planned the project as non-friable. See, e.g., Tr., Vol. 2 (afternoon) at 21 (government opening asserting that “over the course of about a year, Xxx Xxxxxxx consistently maintained, this asbestos is friable”). It elicited evidence that Mr. Xxxxxxx told an engineer consulting for the Department of Public works that the asbestos had to be treated as friable as early as January 2002. Tr., Vol. 3 (morning) at 51-53 (testimony of John Tabella). It elicited further testimony that Mr. Xxxxxxx again called it friable in November, 2002, id. at 81, and he even sent the engineer a summary of demolition practices that were implicated by that determination. Id. at 86. See also Gov. Ex. 11 (Xxxxxxx e-mail to Tabella, dated Nov. 26, 2002). The jury heard about Mr. Xxxxxxx’s site visit with the engineer in “[l]ate November or early December of 2002. Id. at 87.

The government also introduced documentary evidence suggesting the criminal acts began no later than November, 2002. It introduced Mr. Xxxxxxx’s e-mail exchange with Mr. P.J. Goel in which they discuss the requirements of treating the asbestos at issue as friable and the viability of alternative approaches. See Gov. Ex. 13 and 18.

The government went on in closing to hammer home its argument that Mr. Xxxxxxx’s actions in November and December 2002 were a key part of this crime, painting the picture of a man who did not merely take advantage of an opportunity to extort or solicit a bribe, but actively worked for a year in advance to set up that opportunity. See, e.g., Tr. (Vol. 5 (afternoon) at 48-49 (closing, going over Mr. Xxxxxxx’s pre-bid exchanges with Mr. P.J. Goel).

There is obviously no explicit jury determination of when the crime occurred. Given the substantial evidence the government put into the case and argued about Mr. Xxxxxxx’s conduct over the course of 2002, there is also no basis to find in the jury’s silence a necessary implication that the crime was found to have occurred before December 22, 2002.

On this record, the guilty verdict encompasses no determination as to when the crime occurred and therefore no jury determination regarding the requested enhancement.

Respectfully submitted,

A. J. KRAMER

FEDERAL PUBLIC DEFENDER

Tony W. Miles

Assistant Federal Public Defender

625 Indiana Avenue, N.W., #550

Washington, D.C. 20004

(202) 208-7500

tony_miles@

Patrick O’Donnell

HARRIS, WILTSHIRE & GRANNIS LLP

1200 Eighteenth Street, NW

Washington, D.C. 20036

(202) 730-1312

(202) 730-1301 (fax)

podonnell@

Dated: September 15, 2004

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Defendant’s Supplemental Memorandum In Aid Of Sentencing has been served upon Assistant United States Attorneys James Cooper and Stephanie Meltzer by electronic mail to james.cooper3@ and stephanie.j.meltzer@ and by first-class mail, postage prepaid, to them at the Office of the United States Attorney for the District of Columbia, 555 4th Street, N.W., Fifth Floor, Washington, DC 20530, on this 15th day of September, 2004.

Patrick O’Donnell

-----------------------

[1] Determinative sentencing itself, not judicial fact-finding as a basis for such sentencing, is clearly the purpose of the Guidelines system. The Supreme Court’s in-depth review of the Sentencing Reform Act of 1984 in Mistretta v. United States, 488 U.S. 361 (1989), makes clear that the legislation attempted to address “[f]undamental and widespread dissatisfaction with the uncertainties and the disparities” of the old indeterminate system. Id. at 366. The Court particularly cited the Senate committee report on the legislation, which explained that its purposes were to address 1) “the great variation among sentences” and 2) “uncertainty as to the time the offender would spend in prison” due to the former parole system. Id. at 366 (citation omitted). The Court summarized the core purpose of the Act in these words: “[t]hus, guidelines were meant to establish a range of determinate sentences for categories of offenses and defendants according to various specified factors, ‘among others.’” Id. at 368. The Guidelines, explained the Court, were “Congress’ considered scheme for resolving the seemingly intractable dilemma of excessive disparity in criminal sentencing.” Id. at 384.

[2] “[T]he Commission is fully accountable to Congress, which can revoke or amend any or all of the Guidelines as it sees fit either within the 180-day waiting period… or at any time.” Mistretta v. United States, 488 U.S. 361, 393-94 (1989) (citation omitted).

[3] This case, like no shortage of others, also points up the unfairness of the approach lamented in cases such as United States v. Green, 2004 WL 1381101 (D.Mass., June 18, 2004) and recently found unconstitutional in Blakely. The government succeeded here in structuring the case for trial as a relatively simple one, in which it could elicit extensive opinion testimony about terms like “full containment” and the requirements of federal asbestos regulation while limiting cross-examination and argument on those subjects on the basis that the evidence came in not for the truth of the matter asserted but from the effect on the listeners’ state of mind. Similarly, it successfully objected to defense efforts to demonstrate to the jury the actual history of Benning Road – that the demolition proceeded after Mr. Edwards’s arrest in fundamentally the same manner he had approved. Now, having won a jury conviction based on its simplified theory, the Government asks Court on this paltry record, to make a financial-benefit finding that would require it to essentially take the government witnesses’ unchallenged word on what “full containment” means, what the asbestos regulations require, and the actual costs that Keystone would have faced had they not paid Mr. Edwards $10,000. The government thus seeks to more than triple the sentence range to which Mr. Edwards is exposed with none of the protections of a jury trial.

[4] This analysis reflects Apprendi’s instruction that criminal history is not subject to jury finding under the Sixth Amendment and places Mr. Edwards in criminal history category I.

[5] Even aside from Blakely, this case would be governed by the rule that the Due Process Clause requires a heightened “clear and convincing” standard of proof when a sentence enhancement becomes “a tail which wags the dog of the substantive offense.” McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986). The Courts of Appeals for the Third and Ninth Circuits have held that where sentencing departures have an extremely disproportionate effect on sentencing, due process requires at least “clear and convincing” proof before imposing the additional deprivation of liberty. E.g., United States v. Jordan, 256 F.3d 922 (9th Cir. 2001) (holding nine-level departure that more than doubled base-level sentence must be proved by clear and convincing evidence) and United States v. Kikumura, 918 F.2d 1084, 1100-1101 (3d Cir. 1990) (holding that departure that would increase sentence “from about 30 months to 30 years” must be proved “at least by clear and convincing evidence”). See also United States v. Paster, 173 F.3d 206, 216-17 (3d Cir. 1999) (finding that nine-level departure was proved by clear and convincing evidence). The Supreme Court before Blakely noted but did not resolve the circuit split on the proposition that “in extreme circumstances, relevant conduct that would dramatically increase the sentence must be based on clear and convincing evidence.” United States v. Watts, 519 U.S. 148, 156 and n.2 (1997) (citing, inter alia United States v. Lam Kwong-Wah, 966 F.2d 682, 688 (D.C. Cir. 1992)). The D.C. Circuit has also noted the split but has yet to review a case where the sentencing impact was so extreme as to force resolution of the issue. See, e.g., United States v. Long, 328 F.3d 655, 669-671 (D.C. Cir. 2003) (finding eight-level enhancement not extreme enough to require clear and convincing standard of proof even if rule applies). Because the sentencing enhancement the government seeks here is so disproportionate to the base-level required by the offense of conviction, this case presents the issue squarely and would require the enhancement elements be proved by at least clear and convincing evidence even if Blakely did not apply.

[6] As quoted in Kate Stith and Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 Wake Forest L. Rev. 223, 229 (1990) (hereinafter “Stith Article”). The Stith Article offers a comprehensive account of the legislative history of the Sentencing Reform Act of 1984. This brief relies on it as the best account of the legislative history counsel has found.

[7] This is analogous to the required temporal finding in a drunk-driving case that the defendant drove while under the influence, not merely that he had once driven and once been under the influence. See, e.g., D.C. Code § 50-2201.05(b)(1).

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