375 F.3d 508 (7th Cir. 2004), 03-4225, United States v. Booker

Docket Nº:03-4225.
Citation:375 F.3d 508
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Freddie J. BOOKER, Defendant-Appellant.
Case Date:July 09, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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375 F.3d 508 (7th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Freddie J. BOOKER, Defendant-Appellant.

No. 03-4225.

United States Court of Appeals, Seventh Circuit

July 9, 2004[*]

Argued July 6, 2004.

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Timothy M. O'Shea, Elizabeth Altman (Argued), Office of the United States Attorney, Madison, WI, Elizabeth Olson (Argued), Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.

T. Christopher Kelly (Argued), Kelly & Habermehl, Madison, WI, for Defendant-Appellant.

Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

A jury found the defendant guilty of possessing with intent to distribute at least 50 grams of cocaine base, for which the statute prescribes a minimum sentence of 10 years in prison and a maximum sentence of life. 21 U.S.C. § 841(b)(1)(A)(iii). At sentencing, the judge found by a preponderance of the evidence that the defendant (1) had distributed 566 grams over and above the 92.5 grams that the jury had to have found (for the defendant did not contest that it was the amount of crack in his duffel bag--he just claimed he hadn't put it there) and (2) had obstructed justice. Under the federal sentencing guidelines, the additional quantity finding increased the defendant's base offense level from 32 to 36, U.S.S.G. §§ 2D1.1(c)(2), (4). The effect, together with that of the enhancement that the guidelines prescribe for obstruction of justice, U.S.S.G. § 3C1.1, was to place the defendant in a sentencing range of 360 months to life. The judge sentenced him to the bottom of the range.

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The appeal challenges the sentence on the ground that the sentencing guidelines violate the Sixth Amendment insofar as they permit the judge to find facts (other than facts relating to a defendant's criminal history) that determine the defendant's sentencing range. There is also a challenge to the conviction, based on the judge's limiting the scope of cross-examination, but so obviously harmless was that error (if it was an error) that we will move immediately to the sentencing issue.

We have expedited our decision in an effort to provide some guidance to the district judges (and our own court's staff), who are faced with an avalanche of motions for resentencing in the light of Blakely v. Washington, ---U.S. ----, 124 S.Ct. 2531, --- L.Ed.2d ---- (2004), which has cast a long shadow over the federal sentencing guidelines. We cannot of course provide definitive guidance; only the Court and Congress can do that; our hope is that an early opinion will help speed the issue to a definitive resolution.

Blakely invalidates under the Sixth Amendment (which had of course long been held applicable to state criminal proceedings by an interpretation of the Fourteenth Amendment) a statute of the State of Washington that authorized the sentencing judge to impose a sentence above the "standard range" set forth in the statute punishing the offense if he found any aggravating factors that justified such a departure; pursuant to this grant of authority, the judge had imposed a sentence of 90 months on the defendant, which exceeded the standard range of 49 to 53 months for his offense, second-degree kidnapping.

The Supreme Court had already held 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." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Blakely it let the other shoe drop and held over pointed dissents that "the '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." Blakely v. Washington, supra, at 2536. "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,' and the judge exceeds his proper authority." Id. (citation omitted). "[W]ithout" is italicized in the original; we have italicized "relevant" to underscore the difference between the maximum sentence in the statute, and the maximum sentence--what the Supreme Court regards as the "relevant statutory maximum"--that the judge can impose without making his own findings, above and beyond what the jury found or the defendant admitted or, as here, did not contest.

The maximum sentence that the district judge could have imposed in this case (without an upward departure), had he not made any findings concerning quantity of drugs or obstruction of justice, would have been 262 months, given the defendant's base offense level of 32, U.S.S.G. § 2D1.1(c)(4) (32 is the base offense level when the defendant possessed at least 50 grams but less than 150 grams of crack), and the defendant's criminal history. U.S.S.G. §§ 4A1.1(a)-(e), .2(c)(1). True, that maximum is imposed not by the words of a federal statute, but by the sentencing guidelines. Provisions of the guidelines establish a "standard range" for possessing

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with intent to distribute at least 50 grams of cocaine base, and other provisions of the guidelines establish aggravating factors that if found by the judge jack up the range. The pattern is the same as that in the Washington statute, and it is hard to believe that the fact that the guidelines are promulgated by the U.S. Sentencing Commission rather than by a legislature can make a difference. The Commission is exercising power delegated to it by Congress, and if a legislature cannot evade what the Supreme Court deems the commands of the Constitution by a multistage sentencing scheme neither, it seems plain, can a regulatory agency. In its decision upholding the guidelines against delegation and separation of powers challenges, the Supreme Court had stated that "although Congress granted the Commission substantial discretion in formulating the guidelines, in actuality it legislated a full hierarchy of punishment--from near maximum imprisonment, to substantial imprisonment, to some imprisonment, to alternatives--and stipulated the most important offense and offender characteristics to place defendants within these categories" and that "in contrast to a court's exercising judicial power, the 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, 377, 393-94, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (citation omitted).

It would seem to follow, therefore, as the four dissenting Justices in Blakely warned, Blakely v. Washington, supra, at 2548-51 (O'Connor, J., dissenting); id. at 2561 (Breyer, J., dissenting); and several district judges have already ruled, e.g., United States v. Croxford, ---F.Supp.2d ----, ----, ----, 2004 WL 1521560, at *7, *13 (D.Utah July 7, 2004); United States v. Medas, 323 F.Supp.2d 436, ----, 2004 WL 1498183, at *1 (E.D.N.Y. July 1, 2004); United States v. Shamblin, ---F.Supp.2d ----, ----, 2004 WL 1468561, at *8 (S.D.W.Va. June 30, 2004), that Blakely dooms the guidelines insofar as they require that sentences be based on facts found by a judge. The majority in Blakely, faced with dissenting opinions that as much as said that the decision doomed the federal sentencing guidelines, might have said, no it doesn't; it did not say that.

The qualification "based on facts found by a judge" is critical. 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. The government argues that all the guidelines do is regularize the discretion that judges would exercise in picking a sentence within a statutory range. Mistretta v. United States, supra, 488 U.S. at 395, 109 S.Ct. 647. If that were indeed all, that would be fine. And indeed to a great extent the system of the guidelines, with its sentencing ranges and upward and downward departures, limits rather than extinguishes sentencing discretion. But the issue in Blakely was not sentencing discretion--it was the authority of the sentencing judge to find the facts that determine how that discretion shall be implemented and to do so on the basis of only the civil burden of proof. The vices of the guidelines are thus that they require the sentencing judge to make findings of fact (and to do so under the wrong standard of proof), e.g., 18 U.S.C. §§ 3553(a)(4), (5); U.S.S.G. §§ 1B1.1, .3(a),

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6A1.3(b); Edwards v. United States, 523 U.S. 511, 513-14, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998); United States v. Bequette, 309 F.3d 448, 450-51 (7th Cir. 2002); United States v. Jackson, 300 F.3d 740, 749 (7th Cir. 2002); United States v. Guzman, 318 F.3d 1191, 1197-98 (10th Cir. 2003); United States v. Lopez, 219 F.3d 343, 348 (4th Cir. 2000), and that the judge's findings largely determine the sentence, given the limits on upward and downward departures, 18 U.S.C. §§ 3553(b), (e), (f); U.S.S.G. § 5K2.0; Koon v. United States, 518 U.S. 81, 92, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Sherman, 53 F.3d 782, 788-89 (7th Cir. 1995); United States v. Lafayette,...

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