Nichols v. McCormick
| Decision Date | 08 October 1991 |
| Docket Number | No. 90-35416,90-35416 |
| Citation | 946 F.2d 695 |
| Parties | Dan NICHOLS, Petitioner-Appellant, v. Jack McCORMICK, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wendy Holton, Helena, Mont., for petitioner-appellant.
Elizabeth S. Baker, Asst. Atty. Gen., Helena, Mont., for respondent-appellee.
Before BROWNING, WRIGHT and FARRIS, Circuit Judges.
The panel has voted to deny appellant's petition for rehearing and to reject the suggestion for rehearing en banc.
The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.
NORRIS, Circuit Judge, dissents from the failure of the court to rehear the case en banc.
Dan Nichols was indicted of kidnapping under a Montana statute that subjected him to a maximum penalty of ten years of imprisonment. See Mont.Code Ann. § 45-5-302(2) (). The kidnapping statute, MCA § 45-5-302, does not provide for any enhancement of this statutory maximum of ten years. Nichols was also indicted of assault under a Montana statute that subjected him to a maximum penalty of six months of imprisonment. See Mont.Code Ann. § 45-5-201. At trial, a jury found him guilty of both offenses beyond any reasonable doubt.
At sentencing, the judge sentenced defendant to the ten-year maximum under the kidnapping statute and to the six-month maximum under the assault statute. See State v. Nichols, 222 Mont. 71, 720 P.2d 1157, 1158 (1986). The sentencing judge then invoked a separate statute, Mont.Code Ann. § 46-18-221, which reads, in relevant part, as follows:
Additional sentences for offenses committed with a dangerous weapon. (1) A person who has been found guilty of any offense and who, while engaged in the commission of that offense, knowingly displayed, brandished, or otherwise used a firearm ... shall, in addition to the punishment provided for the commission of such offense, be sentenced to a term of imprisonment in the state prison of not less than 2 years or more than 10 years, except as provided in 46-18-222.
MCA § 46-18-221(1) (emphasis added).
Finding that Nichols had knowingly used a weapon while engaged in the felony of kidnapping, the sentencing judge imposed a sentence ten years longer than the maximum sentence authorized by the statutes proscribing the offenses for which Nichols was convicted.
A panel of our court now upholds MCA § 46-18-221 against a constitutional attack and affirms Nichols' sentence. See Nichols v. McCormick, 929 F.2d 507 (9th Cir.1991). Appellant Nichols argues that the Montana statute is constitutionally invalid because it allows a sentencing judge to enhance the maximum sentence authorized by the kidnapping and assault statutes upon finding that a convicted defendant knowingly used a firearm in the commission of the underlying offense. Such a statutory scheme, Nichols argues, deprives him of his right to a jury trial for facts which expose him to greater penalties than the penalties authorized by the statute of conviction.
In rejecting Nichols' challenge, the panel first invokes LaMere v. Risley, 827 F.2d 622 (9th Cir.1987), for the proposition that the Montana statute at issue is a sentencing statute which does not create a substantive offense. Nichols, 929 F.2d at 509. The panel then relies on McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), to dispose of Nichols' constitutional claim. The Nichols panel reads McMillan as holding that "the Sixth Amendment does not require jury sentencing when a statute makes a weapon possession a sentencing factor rather than an element of a crime." Nichols, 929 F.2d at 509. The Nichols panel also thinks that McMillan left states "free to define possession of a weapon as a sentencing factor" even when such sentencing factfinding operates to increase a sentence beyond the maximum permitted by the underlying offense. Id. at 511.
I dissent from our court's refusal to hear Nichols en banc because the Nichols panel's reading of McMillan and its view that McMillan requires that the Montana statute be upheld are simply wrong. McMillan does not stand for the simplistic and overly formalistic proposition that, once a fact has been classified as a traditional sentencing factor, due process will always be satisfied if that fact is proved by a mere preponderance at sentencing. On the contrary, McMillan, when properly read in light of other Supreme Court case law, clearly indicates that a finding of fact resulting in a sentence in excess of the sentence authorized by the statute of conviction triggers the full panoply of due process protections--including the right to a jury trial and the protections of the reasonable doubt standard. In contrast, Nichols issues government, both state and federal, a broad license to evade fundamental constitutional safeguards by shifting the forum of adjudicating charges of criminal misconduct from jury trials to sentencing hearings.
The Nichols panel misreads McMillan. McMillan held that a Pennsylvania sentencing statute that imposed a mandatory minimum sentence for certain convicted defendants who visibly possessed a firearm in the commission of the felony does not violate due process. McMillan did not hold that gun possession is always a permissible sentencing factor that may be proved by a mere preponderance. Such a holding would have conflicted with the interpretation of the Due Process Clause embodied in the Supreme Court's decisions in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). McMillan neither overruled nor limited these cases, but rather took great pains to distinguish them. In so doing, the Court emphasized that the Pennsylvania sentencing statute "neither alters the statutory maximum for the crime committed nor creates a separate offense calling for a separate penalty." McMillan, 477 U.S. at 87, 106 S.Ct. at 2417. Indeed, the Supreme Court very recently emphasized once again that McMillan relied on these two factors in upholding the Pennsylvania statute. Schad v. Arizona, --- U.S. ----, 111 S.Ct. 2491, 2504 n. 9, 115 L.Ed.2d 555 (1991). Our panel rushes to uphold the Montana statute without pausing even for a moment to mention or cite, let alone discuss, Specht, Winship, Mullaney and the critical portions of the McMillan opinion discussing these cases. 1
A careful reading of McMillan, in light of these Supreme Court precedents, shows clearly that McMillan does not stand for the proposition that due process is satisfied when a statute authorizes a sentencing judge to impose a sentence in excess of the statutory maximum allowed by the offense of conviction upon finding that the defendant "knowingly used a firearm" in the commission of that offense. It is the authority to exceed the statutory maximum for the underlying offense that differentiates the Montana statute at issue in Nichols from the Pennsylvania statute at issue in McMillan. McMillan, when properly read in light of Specht, Winship and Mullaney, dictates the conclusion in Nichols that the Montana statute is unconstitutional because it deprives the defendant of the right to a jury trial for each element of a crime.
There is an additional reason why McMillan does not control the result in this case and why the Montana gun statute is invalid. It is undisputed that "[t]he safeguards of due process are not rendered unavailable simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty." Mullaney, 421 U.S. at 698, 95 S.Ct. at 1889; see also Burns v. United States, --- U.S. ----, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991); id. 111 S.Ct. at 2188, 2191 (Souter, J., dissenting). Under the Supreme Court's liberty interest jurisprudence, see, e.g., Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), and Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), Nichols had a liberty interest in a sentence at or below the statutory maximum set by the statute of conviction because, absent a finding of gun use, the Montana sentencing judge had no authority to impose a sentence longer than the statutory maximum. By contrast, the convicted defendant in McMillan had no liberty interest in a sentence below the statutory minimum set by a finding of gun possession, because a sentencing judge had unfettered discretion to impose a sentence above that statutory minimum, even absent a finding of gun possession. Because a liberty interest is at stake in Nichols, the due process calculus is dramatically different. When, as in this case, sentencing factfinding permits a judge to impose ten years of additional incarceration (and indeed requires a judge to impose two years of additional incarceration), we must determine what process is due before a defendant is deprived of his liberty. The panel fails to conduct any such inquiry.
Because the panel opinion misreads McMillan in a way that opens the door for shifting much of criminal adjudication to the sentencing phase and thus evading the constitutional protections afforded...
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