U.S. v. Kortgaard

• Decision Date: 21 September 2005
• Docket Number: No. 03-10421.,03-10421.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Laron Kevin KORTGAARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.3d 602

UNITED STATES of America, Plaintiff-Appellee, v. Laron Kevin KORTGAARD, Defendant-Appellant.

No. 03-10421.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 3, 2004.

Submission Withdrawn January 11, 2005.

Resubmitted August 30, 2005.

Filed September 21, 2005.

David F. Klein, Esq., Honolulu, HI, for the defendant-appellant.

Michael K. Kawahara, Assistant United States Attorney, Honolulu, HI, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii; Alan C. Kay, District Judge, Presiding. D.C. No. CR-02-00099-ACK.

Before: BRUNETTI, GRABER, and BYBEE, Circuit Judges.

BRUNETTI, Circuit Judge.

Laron Kevin Kortgaard appeals his conviction and sentence for manufacturing marijuana. We have jurisdiction under 28 U.S.C. § 1291. We affirmed Kortgaard's conviction in an unpublished Memorandum and deferred submission of the sentencing issues. United States v. Kortgaard, 119 Fed.Appx. 148 (9th Cir.2005). We now hold that upward departures under § 4A1.3 of the United States Sentencing Guidelines involve factual findings beyond the fact of a prior conviction. Because Kortgaard's sentence was increased under § 4A1.3 and exceeds the maximum authorized sentence based solely on the jury's verdict under the then-mandatory Sentencing Guidelines, we vacate the sentence and remand for resentencing in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Factual and Procedural History

Kortgaard was originally charged with manufacturing marijuana based on his cultivation of 50 or more plants and possession with intent to distribute the same amount. A jury acquitted Kortgaard of possession with intent to distribute but convicted him of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Based on the jury verdict and Kortgaard's criminal history, the Guidelines required the district court to sentence Kortgaard to not less than 21 months but not more than 27 months in prison.

Rather than sentence Kortgaard within this "base" sentencing range, the district court departed upward to a range of 37 to 46 months and ultimately sentenced Kortgaard to 46 months in prison.¹ The upward departure was based on the judge's finding that the applicable guideline range inadequately represented the seriousness of Kortgaard's criminal history and his likelihood of recidivism. U.S. Sentencing Guidelines Manual § 4A1.3 (Nov.2001) (amended 2003) (hereinafter U.S.S.G.).² In making this finding, the district court considered Kortgaard's two drug convictions and eight convictions for various other offenses, which occurred in the United States many years ago, and Kortgaard's six foreign drug convictions and seven foreign convictions for property offenses, which occurred in Canada.

As the district court noted, U.S.S.G. § 4A1.2(e) and (h) preclude consideration of these old domestic convictions and foreign convictions in determining the applicable criminal history category and the "base" sentencing range. Nevertheless, the district court could and did consider those convictions in making an upward departure. Section 4A1.3 expressly permits consideration of "prior sentence(s) not used in computing the criminal history category (e.g., sentences for foreign and tribal offenses)," as well as other uncounted factors, including even criminal conduct not resulting in a conviction.

On appeal, Kortgaard maintains that the district court's findings and the resulting upward departure are erroneous on the merits and, alternatively, violate the Sixth Amendment. At the time of briefing, the Supreme Court had decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), but had only granted certiorari in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). By the time of oral argument, however, the parties had the additional benefit of the Court's decision in Blakely and its grant of certiorari in Booker. Kortgaard subsequently filed a motion for supplemental briefing in light of Booker, which the Government opposed. In an unpublished order filed August 30, 2005, we denied the motion. The Court's guidance in Booker and the parties' briefing and oral arguments are sufficiently illuminating to permit resolution of this appeal without supplemental briefing.

Discussion

In United States v. Bad Marriage, 392 F.3d 1103, 1108 (9th Cir.2004), decided only weeks before Booker, we reserved decision on the issue of "whether, or how, Blakely affects upward departures under § 4A1.3." We now confront that issue in light of Booker and hold that upward departure decisions under § 4A1.3 are factual in nature; therefore, such decisions are not within Apprendi's exception for the fact of a prior conviction and are subject to the restrictions of Booker.

A.

The Court clearly stated in Booker: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." 125 S.Ct. at 756 (Stevens, J., opinion of the Court). As we have interpreted Booker, "the Sixth Amendment precludes a judge from enhancing a sentence based on extra-verdict findings (other than the fact of a prior conviction) in a mandatory sentencing regime." United States v. Ameline, 409 F.3d 1073, 1077 (9th Cir.2005) (en banc) (citing Booker, 125 S.Ct. at 748-49).

Kortgaard was sentenced under a mandatory sentencing regime. Although the Court ultimately declared the Sentencing Guidelines to be "advisory" going forward, Booker, 125 S.Ct. at 757 (Breyer, J., opinion of the Court), for purposes of the Sixth Amendment analysis under Booker we consider the state of affairs at the time the defendant was sentenced. See id. at 751, 769 (with respect to defendant Booker, finding that a Sixth Amendment violation occurred under the mandatory Guidelines regime, and remanding for resentencing under an advisory regime); Ameline, 409 F.3d at 1078 (finding constitutional error in an enhancement "under the then-mandatory guidelines"). At the time Kortgaard was sentenced in 2003, pre-Blakely and pre-Booker, the Guidelines were "mandatory and binding on all judges" and therefore had "the force and effect of laws." Booker, 125 S.Ct. at 750 (Stevens, J., opinion of the Court). Moreover, there is no indication in the record that the district court here treated the Guidelines as anything other than mandatory and binding. Cf. Ameline, 409 F.3d at 1077 (stating that no Sixth Amendment violation occurs under Booker where a "particularly prescient sentencing judge, pre-Booker, had ... made clear that he was treating the Guidelines as advisory rather than binding").

It is inconsequential to our Sixth Amendment analysis that upward departures under § 4A1.3 are discretionary, insofar as "the court may consider imposing a sentence departing from the otherwise applicable guideline range" if certain prerequisite findings are made. U.S.S.G. § 4A1.3 (emphasis added). As noted above, at the time Kortgaard was sentenced, sentencing in accordance with the Guidelines was mandatory and the district court here treated the Guidelines accordingly. In such cases, "the judge is bound to impose a sentence within the Guidelines range" supported by the jury's verdict, the upper limit of which represents the "maximum authorized" sentence. Booker, 125 S.Ct. at 750, 756 (Stevens, J., opinion of the Court). Although the judge has discretion to consider a departure under § 4A1.3, the judge does not have unfettered discretion to impose a departure; additional factual findings are prerequisite. See U.S.S.G. § 4A1.3. In the absence of such findings, the applicable Guideline range remains mandatory and the judge has no authority to impose, nor is the defendant eligible to receive, a greater sentence. "The judge acquires that authority only upon finding some additional fact." Blakely, 124 S.Ct. at 2538, quoted in Booker, 125 S.Ct. at 751 (Stevens, J., opinion of the Court). "Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence." Blakely, 124 S.Ct. at 2538 n. 8. In other words, additional factual findings under § 4A1.3 are "necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict." Booker, 125 S.Ct. at 756 (Stevens, J., opinion of the Court). Therefore, to satisfy the Sixth Amendment, the additional facts (other than the fact of a prior conviction) "must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Id.

Under the mandatory Guidelines regime in effect at the time Kortgaard was sentenced, the "maximum authorized" sentence, or "the Guideline range supported by the jury verdict alone," was 21 to 27 months in prison. Booker, 125 S.Ct. at 751, 756 (Stevens, J., opinion of the Court); see, e.g., id. at 751 (calculating Booker's maximum authorized sentence as 210 to 262 months under the Guidelines). Kortgaard's actual sentence, however, was 46 months, or 19 months longer than the maximum Guidelines term supported by the jury verdict alone. Consequently, if Kortgaard's sentence was based on facts, other than the fact of a prior conviction, not admitted by Kortgaard or found by a jury beyond a reasonable doubt, then the sentence violates his Sixth Amendment right to a jury trial. See id. at 756.

B.

Kortgaard contends that the district court's decision to depart upward under § 4A1.3 without submitting the issue to a jury violates the Sixth Amendment because § 4A1.3 requires extra-verdict factual findings beyond the facts of Kortgaard's prior convictions and sentences. The Government essentially contends that Kortgaard's sentence is within Apprendi's exception for the fact of a prior conviction because the sentencing judge's...