U.S. v. Kandirakis, Criminal Action No. 04-10372-WGY.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtYoung
Citation441 F.Supp.2d 282
PartiesUNITED STATES of America, v. George KANDIRAKIS, Defendant.
Docket NumberCriminal Action No. 04-10372-WGY.
Decision Date01 August 2006
441 F.Supp.2d 282
George KANDIRAKIS, Defendant.
Criminal Action No. 04-10372-WGY.
United States District Court, D. Massachusetts.
August 1, 2006.

Richard C. Bardi, Law Office of Richard C. Bardi, Rosemary C. Scapicchio, Law Office of Rosemary C. Scapicchio, James E. McCall, Boston, MA, Theodore A. Barone, Barone Law Offices, Terry Flukes, Robert J. Kelly Law Offices, Quincy, MA, for Defendants.

Nancy Rue, United States Attorney's Office, Boston, MA, for United States of America.


YOUNG, District Judge.

"What is overlooked in post-Booker discussions is the fact that, for seventeen years, federal courts had been sentencing offenders unconstitutionally."1

For seventeen years federal courts had been sentencing offenders unconstitutionally. Think about that. The human cost is incalculable—thousands of Americans languish in prison under sentences that today are unconstitutional. The institutional

Page 283

costs are equally enormous—for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core values of an independent judiciary because they have been brought up in a sentencing system that strips the words "burden of proof", "evidence", and "facts" of genuine meaning2; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history.3

Today, elements in the legislature, a monolithic executive, and courts below the Supreme Court all seem to be acting in concert to devise a sentencing system as close to unconstitutionality as possible.4 This Court has charted a different course—one that gives real meaning to the language of all the controlling decisions of the Supreme Court, yet scrupulously adheres to the rulings of that inferior court which controls the work of this one. It is a procedure that ensures significant protections for all litigants without added burden, wasted time, or cost to our system of justice.

This Sentencing Memorandum maps the legal landscape and explains the Court's procedures within it—all in the context of a well-tried case which required this Court to work through the implications of its own practices.

I. The Prosecution—Opening Moves

On December 15, 2004, a federal grand jury indicted Jess Siciliano ("Siciliano"), Michael Arco ("Arco"), and George Kandirakis ("Kandirakis") for conspiracy and possession, with intent to distribute, oxycodone—known commonly by one of its trade names, OxyContin. The government charged that Siciliano was an OxyContin supplier and that Arco and Kandirakis

Page 284

were OxyContin retailers who got their illicit supplies from Siciliano. The government conceded that Kandirakis was the least involved of the three. Siciliano and Arco quickly copped pleas. The plea deals, proffered to the Court pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C)5, would result in a 46-month sentence for Siciliano and a 57-month sentence for Arco.6

The Court held an extensive plea colloquy with Siciliano and Arco, explaining the procedural protections it affords defendants who go to trial. See infra Part IV. From this colloquy, the Court concluded that both Siciliano and Arco had bargained down, for sentencing purposes, the quantity of OxyContin properly attributable to them, the government trading away provable facts in return for the certainty that comes from a plea.7 The First Circuit explicitly embraces such "fact bargaining", even when relevant data is hidden from the Court. See United States v. Yeje-Cabrera, 430 F.3d 1, 23-30 (1st Cir.2005). While this is the ugly truth on which many plea-bargained sentences rest, so sweeping is our plea bargaining culture today, that it is a staple of criminal practice in this circuit and district.8 Those who deny it9

Page 285

are sophists, engaging in what one of my colleagues calls "a massive exercise in hypocrisy". Berthoff, 140 F.Supp.2d at 64.

Fearing the vindictive moral quagmire that the government creates when it posits a more favorable, alternative factual universe for those who will plead guilty, but then proves the actual facts against those who go to trial, this Court entertained Siciliano's and Arco's proffered pleas, but declined to accept or reject them until Kandirakis had been tried and, if necessary, sentenced.10

This done, the government and Kandirakis, gearing up for trial, "set [their] faces to the stormy sea [and] bid the land farewell."11 A necessary part of that preparation, for both the Court and counsel, involved significant legal analysis.

II. A "Muddled"12 Legal Landscape: The Two Faces of Booker

Eighteen months ago the Supreme Court issued its decision in United States v. Booker. 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The case had promised to be the culmination of a reinvigoration in the criminal defendant's Sixth Amendment right to trial by jury, which the Court had begun several years before in Apprendi v. New Jersey. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).13 In Apprendi, the Court held that, "[o]ther than the fact of a prior conviction14, any

Page 286

that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348.15

The consequences of Apprendi for the Federal Sentencing Guidelines were immediately apparent. See id. at 550-51, 120 S.Ct. 2348 (O'Connor, J., dissenting). Though the facts of Apprendi involved legislatively enacted statutes, the constitutional rule of that case seemed equally to apply to all judge-based, determinate sentencing schemes. This Court so held on June 18, 2004, in United States v. Green, 346 F.Supp.2d 259 (D.Mass.2004), which ruled the Guidelines unconstitutional. Green's reasoning was confirmed days later in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which invalidated the State of Washington's nearly identical sentencing apparatus. Though the Supreme Court officially reserved the question, id. at 305 n. 9, 124 S.Ct. 2531, after Blakely it was quite obvious to many other observers that the Guidelines were unconstitutional. As soon as "the [Supreme] Court could get before it a case properly presenting the constitutionality of the mandatory [federal] Guidelines", they likewise were invalidated. Booker, 543 U.S. at 313, 125 S.Ct. 738 (Scalia, J., dissenting in part).

Booker could have been the simple, logical extension of the Supreme Court's Apprendi jurisprudence. Instead, the Court produced a fractured, 124-page decision with two majority opinions and four dissents. What remained after the verbal cannonades was this:

One majority opinion ("Constitutional Booker") which ruled that the Guidelines violated the Sixth Amendment. This opinion was written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg.

Another majority opinion ("Remedial Booker") which ruled that the way to rectify the constitutional infirmity was to make the Guidelines advisory rather than mandatory. This opinion was written by Justice Breyer and joined by Chief Justice Rehnquist and Justices O'Connor, Kennedy, and Ginsburg.

How logically to implement these two majority opinions has been a question with which the lower federal courts have been grappling ever since.

A. Constitutional Booker

The constitutional decision in Booker is quite succinct. A review of the Court's Sixth Amendment jurisprudence—especially its Blakely decision—yielded but one conclusion: "[T]here is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in that case." Booker, 543 U.S. at 233, 125 S.Ct. 738. As quoted above, the rule set forth in Apprendi is that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted

Page 287

to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. As further explicated in Blakely, "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." 542 U.S. at 303-04, 124 S.Ct. 2531.

The mandatory nature of the Guidelines was crucial. "If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. ... Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act of 1984] the provisions that make the Guidelines binding on district judges .... " Booker, 543 U.S. at 233, 125 S.Ct. 738. Therefore, after rejecting stare decisis and separation of powers arguments, the Court "reaffirmed [its] holding in Apprendi" and declared the Guidelines unconstitutional. Id. at 239-43, 244, 125 S.Ct. 738.

B. Remedial Booker

The second majority seized on the mandatory nature of the Guidelines in remedying their unconstitutionality. Booker, 543 U.S. at 244-71, 125 S.Ct. 738. Consequently, rather than grafting the Sixth Amendment's jury right onto the Guidelines (the solution preferred by the Justices of Constitutional Booker, minus Justice Ginsburg) or discarding the Guidelines altogether (a solution no Justice supported), Remedial Booker papered over the Guidelines' Sixth Amendment infirmity by "sever[ing] and excis[ing]" two sections of Title 18 that made the Guidelines mandatory for sentencing16 and appellate17

Page 288

courts. Id. at 245, 249, 125 S.Ct. 738. Doing so made the Guidelines "effectively advisory". Id. at 245, 125 S.Ct....

To continue reading

Request your trial
33 cases
  • Commonwealth v. Stokes
    • United States
    • Superior Court of Pennsylvania
    • 1 Dicembre 2011
    ...States v. Ibanga, 454 F.Supp.2d 532 (E.D. Virginia 2006), reversed, 271 Fed.Appx. 298 (4th Cir.2008); United States v. Kandirakis, 441 F.Supp.2d 282 (D.Mass.2006); United States v. Coleman, 370 F.Supp.2d 661 (S.D.Ohio 2005); United States v. Pimental, 367 F.Supp.2d 143 (D.Mass.2005); United......
  • United States v. Ramirez, CRIMINAL ACTION NO. 10-10008-WGY
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 24 Maggio 2016
    ...(this Court sentenced the defendant to the high end of the applicable Guidelines range); see alsoUnited States v. Kandirakis, 441 F.Supp.2d 282, 335–336 (D.Mass.2006) (sentence within the Guidelines range).19 Although judges may depart downward more substantially when sentencing career offe......
  • U.S. v. Grier, 05-1698.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 5 Febbraio 2007
    ...provisions of the Bill of Rights. It has never been efficient; but it has always been free."); United States v. Kandirakis, 441 F.Supp.2d 282, 302 (D.Mass.2006) (Young, J.) ("That our laws routinely require a defendant's sentence to be based upon what a judge believes an offender `really' d......
  • U.S. v. Ali, 05-2098.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 27 Novembre 2007
    ...the reasonable-doubt result. United States v. Gray, 362 F.Supp.2d 714, 720, 723 (S.D.W.Va.2005); see also United States v. Kandirakis, 441 F.Supp.2d 282, 322 (D.Mass. 2006) (submitting enhancement facts to an advisory jury at sentencing); id. at 328-29 (citing other cases where district cou......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT