U.S. v. Booker, Freddie / U.S. v. Fanfan, Ducan (01/12/2005)

Questions presented: (1) Whether the 6th Amendment is violated by the imposition of an enhanced sentence under the U.S. Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant. (2) If the answer to the first question is "yes," the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.

BY EMILY PARKER, MEDILL NEWS SERVICE

On Feb. 26, 2003, Freddie Booker initiated a routine drug deal. He arrived at a house and sold a customer crack cocaine.

Around the time the drug deal was taking place, police were called to the house to respond to a criminal trespass complaint. When the police arrived, the customer to whom Booker sold the crack cocaine attempted to swallow it. Booker was found outside the house and arrested. Police officers also found his duffle bag, which contained around $400, drug paraphernalia and 92.5 grams of crack cocaine. In a written statement given to police, Booker admitted to selling an additional 566 grams of crack cocaine.

A jury in federal court in the Western District of Wisconsin found Booker guilty of possessing and distributing more than 50 grams of cocaine base. The offense carries a minimum sentence of 10 years in prison, with a maximum sentence of life in prison.

At sentencing, the additional 566 grams of crack cocaine that Booker admitted selling was included with the 92.5 grams the jury found him guilty of possessing and distributing. This resulted in Booker being sentenced for a total of 658.5 grams of crack cocaine.

Federal courts use a system of sentencing guidelines to determine sentences. This is done to give people who commit similar crimes similar sentences. The facts of a crime are entered along with the person's past criminal history to calculate a sentencing range. A judge then determines an appropriate sentence within a pre-determined range.

Under the sentencing guidelines, Booker's offense level for the 658.5 grams of crack cocaine was four levels higher than he would have received for the crime of possessing and distributing 92.5 grams.

Two additional levels were also added for obstruction of justice. This was added because the court found that Booker committed perjury during his trial when he denied elements of the crime, contradicting the written statement he had given to police when he was arrested.

Booker's criminal record was also taken into account under the sentencing guidelines. Booker had 23 prior convictions, placing him in the criminal history category VI.

The court calculated a sentencing range of 360 months to life imprisonment. Booker was sentenced to 360 months, or 30 years in prison. He would have faced a maximum of slightly less than 22 years in prison if he would have been sentenced for 92.5 grams of crack cocaine and no obstruction of justice charge.

On June 24, 2004, the U.S. Supreme Court issued an opinion in Blakely v. Washington, which put into question the constitutionality of the federal sentencing guidelines.

Ralph Blakely pleaded guilty to kidnapping his wife with a deadly weapon and to domestic violence assault of his son. But before he was sentenced, the judge added an extra three years in prison to the nearly four-and-a-half years the sentencing guidelines dictated after learning Blakely used deliberate cruelty and violence in the crime.

In Blakely v. Washington, the Supreme Court, split 5-4, said that Blakely's sentence violated his 6th Amendment right to a trial by jury because the factors that enhanced his sentence were not found beyond a reasonable doubt by a jury.

The state of Washington uses a similar set of sentencing guidelines as the federal courts use. When the Blakely decision was issued, many of the approximately 1,200 sentences that take place in federal courts each week were put into question.

Four days after the Supreme Court released its Blakely opinion, Duncan Fanfan appeared for sentencing in a federal court in Maine.

One year earlier, Fanfan was charged with possessing and conspiring to distribute 500 or more grams of cocaine. Fanfan had been set up by Donovan Thomas after Thomas was arrested for delivering cocaine to an informant. Thomas, in cooperating with authorities, identified Fanfan as his cocaine supplier.

Thomas arranged to purchase cocaine from Fanfan at a Burger King restaurant. When Fanfan arrived, he was arrested and narcotics agents found 1.25 kilograms of cocaine and 281.6 grams of cocaine base in his vehicle.

A jury found Fanfan guilty and confirmed that the amount of cocaine was 500 or more grams.

With the Blakely decision fresh in the court's mind, it was found that Fanfan could only be sentenced for what the jury found him guilty.

Therefore, Fanfan was only sentenced for his conviction of a conspiracy that involved at least 500 grams of cocaine powder. In using this amount instead of the kilograms of cocaine powder and 281.6 grams of cocaine base the court had evidence connecting to Fanfan, and in not adding additional levels for Fanfan's involvement as an organizer or leader in criminal activity, Fanfan received a sentencing range of five or six years in prison instead of the fifteen or sixteen years in prison that he would have faced if the court enhanced his sentence.

Fanfan was sentenced to six-and-a-half years in prison, the highest sentence he could have received under the non-enhanced sentencing range.

The court cited Blakely in its reasoning for sentencing. "It is unconstitutional for [the court] to apply the federal guideline enhancements in the sentence of [Fanfan]. To do so would unconstitutionally impinge upon [Fanfan's] Sixth Amendment right to a jury trial as explained by Blakely."

Prosecutors argued that the court was wrong to apply Blakely to the federal sentencing guidelines. They argued that the court committed errors by taking out parts of the guidelines it believed applied to Blakely, and then using the remaining parts to sentence Fanfan. "The Guidelines cannot constitutionally be applied piecemeal as the court did at [Fanfan's] sentencing."

Both the Booker and Fanfan cases ask whether or not enhanced sentences violated the 6th Amendment when the information used to enhance the sentence has not been admitted by the defendant or found by a jury.

Booker appealed to the 7th Circuit Court of Appeals eight days after the Blakely decision was released. He argued that he should be sentenced for only 92.5 grams of crack cocaine and to be sentenced without the two-level enhancement for obstruction of justice. Prosecutors argued that Blakely did not apply to the federal sentencing guidelines.

Fifteen days after the Blakely decision, the 7th Circuit issued a divided 2-1 opinion which affirmed Booker's conviction, reversed his sentence and remanded for further proceedings.

Writing for the majority, Judge Richard Posner wrote that the dissenting [Supreme Court] justices did not make a large enough distinction between the Washington sentencing guidelines and the federal sentencing guidelines.

"We think that the guidelines, though only in cases such as the present one in which they limit defendants' right to a jury and to the reasonable-doubt standard, and thus the right of defendant Booker to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely," Posner wrote.

This decision was expedited to give district judges guidance in the wake of the Blakely decision, which resulted in a large number of re-sentencing requests. Posner wrote in his opinion that "if our decision is wrong, may the Supreme Court speedily reverse it."

Judge Frank Easterbrook dissented. He wrote that the power to make decisions such as this one belongs to the Supreme Court. "A court of appeals cannot replace the Guidelines with something else; the list of non-exclusive options at the end of the majority's opinion is our home-brewed formula, and other courts are bound to favor different recipes as 900 district and circuit judges fumble for solutions."

Easterbrook also wrote that even though Blakely was a blow to the federal sentencing guidelines, these guidelines can still remain. "Just as opera stars often go on singing after being shot, stabbed, or poisoned, so judicial opinions often survive what could be fatal blows."

"Perhaps the [Supreme] Court eventually will hold that some or all of the additional determinations that affect sentences under the federal Sentencing Guidelines also are the province of jurors," Easterbrook wrote. "But Blakely does not take that step, nor does its intellectual framework support it. To read more into Blakely is to attribute to that opinion something beyond its holding."

On Aug. 2, 2004, less than six weeks after the U.S. Supreme Court issued its opinion in Blakely v. Washington, the Court accepted review in these two cases to address the full consequence of its decision in Blakely. The Court consolidated the cases for review, scheduled oral argument for the first Monday in October and permitted two full hours, rather than the customary one hour, of oral argument.

Fanfan appealed to the 1st Circuit Court of Appeals, but his case was chosen by the Supreme Court before the judgment was reviewed. The Supreme Court determined that this case showed "imperative public importance" and therefore the case could be heard by the Supreme Court before the judgment was reviewed. This case was chosen to act as a companion case to Booker in order to grant a timely resolution of the sentencing issues.

The Washington Legal Foundation (WLF) was among legions of parties reacting to the Blakely opinion. The WLF asked the Supreme Court to apply the Blakely decision in these cases. In an amicus filing, it argued that several courts have already reached the conclusion that Blakely applies to the federal sentencing guidelines. "But it is clear that invalidation of the Guidelines by [the Supreme] Court—whether in whole or in part—will not create chaos in the federal criminal justice system, as the government has previously suggested."

During oral arguments before the Court, Acting Solicitor General Paul Clement argued on behalf of the government. "If this Court takes a different view, and treats the outer bounds of the Guidelines ranges as if they were statutory maximums, then the majority of those criminal sentencings become constitutionally dubious, and this Court must confront difficult remedial issues," Clement said.

T. Christopher Kelly argued on behalf of Booker. He said a jury should determine the facts for sentencing if these facts could increase a person's sentence. "The guidelines will apply in every criminal sentencing. Whether a fact finder needs to be a judge or a jury depends upon whether the fact to be found increases the judge's sentencing authority."

Kelly also said that in some cases, there may need to be two trials. One to determine a person's guilt or innocence and then another to determine what factors are taken into account during sentencing. "We'll let the jury find guilt, guilty [or] not guilty, and then find sentencing facts if the guilty verdict is returned."

Rosemary Scapiccio argued on behalf of Fanfan. She said the federal sentencing guidelines do not need to be thrown out entirely because they do not operate in the same way as the Washington state guidelines.

Scapiccio also said that "if the sentence is going to increase, based on a fact that the law makes essential to punishment, that [fact] must be pled and proved to a jury beyond a reasonable doubt."

On Jan. 12, 2005, a divided Court held the federal sentencing guidelines unconstitutional, at least to the extent that they require judges to apply them. Justice Stephen Breyer wrote the part of the opinion that concluded that the federal statute [18 U.S.C. A. "3553(b)(1)], which makes the guidelines mandatory, is incompatible with the Court's view that the 6th Amendment's right to a jury trial allows a judge to impose a maximum sentence that is based solely on facts reflected in the jury verdict or admitted by the defendant.

That 6th Amendment view was articulated in the part of the opinion, authored by Justice John Paul Stevens, that held that the 6th Amendment's right to a jury trial applied to the federal sentencing quidelines.

Four dissents were recorded; one by Justice Stevens to the lead opinion by Justice Breyer; another by Justice Breyer to the opinion by Justice Stevens; and separate dissents by Justices Antonin Scalia and Clarence Thomas.