U.S. v. Mueffelman

Decision Date26 July 2004
Docket NumberCRIM. No. 03-CR-10310-NG.,CRIM. No. 01-CR-10387-NG.,CRIM. No. 02-CR-10201-NG.,CRIM. No. 04-CR-10048-NG.
Citation327 F.Supp.2d 79
PartiesUNITED STATES of America, v. Steven D. MUEFFELMAN, Defendant. United States of America, v. Issa M. Jaber, Defendant. United States of America, v. Michael S. Notkin, Defendant. United States of America, v. Carmelo Rodriguez, Defendant.
CourtU.S. District Court — District of Massachusetts

GERTNER, District Judge.

The defendants in the above cases, like literally thousands across the country, challenge the sentence the government seeks under Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, ___ L.Ed.2d ___ (June 24, 2004). They argue that any sentencing enhancement authorized by the United States Sentencing Guidelines (hereinafter "Federal Sentencing Guidelines," "Sentencing Guidelines," or "Guidelines") violates the Sixth Amendment insofar as it permits a judge to find facts that are "essential" to punishment, rather than a jury.

Since June 24, 2004, courts across the country have had to wrestle with the implications of Blakely on sentencing under the Federal Sentencing Guidelines. The decision has effected nothing less than a sea change.

The issue is particularly significant for defendants (1) who have pled guilty or were convicted before Blakely, but whose sentencing will occur afterward,1 and (2) for whom the government seeks sentencing enhancements or upward departures based on factors that were not admitted to or found by a jury.

Thirty cases in my docket fit into this category.2 Four were on the cusp of sentencing when the Blakely decision was rendered. I have consolidated those four cases for the purpose of addressing Blakely issues,3 invited extensive briefing, and held a lengthy oral argument. After I resolve the general Blakely issues in the cases before me, I will hold sentencing hearings in each individual case.

This decision addresses the following: 1) Whether it is appropriate to defer consideration of Blakely issues pending further appellate guidance; 2) whether Blakely applies to the Federal Sentencing Guidelines; and, 3) whether the Federal Sentencing Guidelines are severable if portions of the Guidelines are unconstitutional under Blakely. To be sure, answering these questions does not resolve all of the issues implied by the decision — those issues can be addressed in the sentencing of particular defendants where they arise.4

As I describe below, I conclude (1) that it is entirely appropriate for a lower trial court to consider Blakely issues and add her voice to the dialogue about the decision's implications; (2) that Blakely unquestionably applies to the Federal Sentencing Guidelines; and (3) that the Guidelines are rendered unconstitutional in their entirety by that application.

While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act ("SRA"), Pub.L. No. 98-473, 98 Stat. 1837 (1987), or of the Guidelines. To literally engraft a system of jury trials involving fact-finding enhancements onto the Sentencing Guideline is to create a completely different regime than that comprehensive sentencing system envisioned by the legislation's drafters or the drafters of the Guidelines. If such a system is required to give full effect to the Constitution's jury trial guarantee then the entire sentencing system has to be recast. The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis.

As a backdrop to the latter discussion, I will describe the Guidelines' genesis out of the failure to pass a federal criminal code, how such a federal code would have increased the power of the jury as Blakely requires, how the Apprendi-Blakely line of cases evolved, the facts of the four cases before me, and then I will turn to the resolution of the specific issues described above.


Substantive federal criminal law has always been like a patchwork quilt, consisting, for the most part, of broadly defined offenses with wide punishment ranges. The jury's role has been to answer general questions — whether the government has proved the elements of the broadly defined offense beyond a reasonable doubt, for example — in a setting with the full panoply of constitutional safeguards. If the defendant was found guilty, judges had a very different role than that of jurors, at least until the 1980s. They enjoyed wide discretion to sentence within the broad punishment ranges, based on a host of issues, including rehabilitation, almost like a doctor or social worker exercising clinical judgment.5 In order to maximize the information available to the judge, and to minimize constraints on her discretion, sentencing procedures were far less formal than trial procedures.6

Since efforts to reform this system (which surely had its flaws) by creating a criminal code with discrete, graded offenses failed, reformers instead attempted to rationalize the sentencing process. But, significantly, they did so within the very same framework — the same general offense categories, the same broad punishment ranges, the same minimal procedural protections contemplating the very same decision-maker.7 Their goal was absolutely clear: To create a system of guidelines to structure judicial discretion in making the kinds of decisions judges had been making within those wide punishment ranges. The result was the Sentencing Reform Act and the Sentencing Guidelines.

The problem was that as the Guidelines evolved, through both the decisions of the courts and the United States Sentencing Commission ("Sentencing Commission"), as well as through subsequent legislation, "guidance" turned to mandatory rules, mechanistically applied — if the judge finds "x" fact (quantity, the amount of the fraud, for example), "y" sentence is essentially compelled. More and more issues of consequence to the punishment of an offender were being pushed into the sentencing realm, with few safeguards. And to the degree that the judge's role was transformed to "just" finding the facts, now with Commission-ordained consequences, what the judge was doing began to look precisely like what the jury was doing, only with fewer safeguards, less formality, and far less legitimacy.8 With respect to this area — fact-finding with determinate consequences — the judge had no specialized role, added no unique expertise to the process. The only difference — and it was a troubling one — was that judicial decision-making took place in what has been described graphically as the "second string fact-finding process."9

The Supreme Court rejected all efforts to address the problem by enhancing the procedural standards available at sentencing — e.g. applying the standard evidentiary rules and/or raising the burden of proof, making the sentencing hearing more like a jury-waived trial.10 To a degree, all of that seemed to change with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and especially with Blakely. Whereas prior to Blakely,"facts ... essential to the punishment" were found by the judge at sentencing (in that "second string fact-finding process") Blakely directed that such facts had to be found by a jury, with all the safeguards of the Constitution, or admitted by the defendant in a plea agreement or plea colloquy.11

But make no mistake about it: That shift had seismic consequences for the Federal Sentencing Guidelines, not to mention the cases of the four defendants at bar.12


All the defendants here argue that Blakely applies to the Federal Sentencing Guidelines, and further, that the offending portions of the Guidelines, those that require sentencing enhancements based on facts which were not comprised in the indictment, plea, or conviction, can be severed from the rest of the Guidelines. The resulting sentences would be at the base offense level, substantially lower than the sentence the government argues the Guidelines would have required.

A. Issa Jaber

Issa Jaber ("Jaber") pled guilty to Counts 1 through 8 of a superceding indictment charging him with conspiracy to posses or distribute pseudoephedrine, knowing that it would be used to manufacture a controlled substance (in violation of 21 U.S.C. § 846), possession of pseudoephedrine with the same understanding (in violation of 21 U.S.C. § 841(c)(2)), and conspiracy to commit money laundering (in violation of 18 U.S.C. § 1956(h)).

The government and the defendant agreed that a base offense level of 30 reflected the amount of pseudoephedrine Jaber possessed, together with a base offense level of 29 for the money laundering. They also agreed that the...

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14 cases
  • U.S. v. Johnson, CR.A. 6:04-00042.
    • United States
    • U.S. District Court — Southern District of West Virginia
    • August 13, 2004
    ...U.S. v. O'Daniel, 2004 WL 1767112 (N.D.Okla. Aug.6, 2004); U.S. v. Gibson, No, 1:04-cr-12 (D.Vt. July 30, 2004); U.S. v. Mueffleman, 327 F.Supp.2d 79 (D.Mass.2004); U.S. v. Zompa, 326 F.Supp.2d 176 (D.Me.2004); U.S. v. Carter, 2004 U.S. Dist. LEXIS 14433 (C.D.Ill. July 23, 2004); U.S. v. Pa......
  • U.S. v. Shields
    • United States
    • U.S. District Court — District of Massachusetts
    • November 7, 2007
    ...(Wolf, J.), and to a Sixth Amendment challenge involving the federal sentencing guidelines, United States v. Mueffelman, 327 F.Supp.2d 79, 95 n. 37 (D.Mass. 2004) (Gertner, J.). ...
  • United States v. Orthofix, Inc.
    • United States
    • U.S. District Court — District of Massachusetts
    • July 26, 2013
    ...enjoyed wide discretion in determining the appropriate sentence to apply to particular individuals. See United States v. Mueffelman, 327 F.Supp.2d 79, 82–83 (D.Mass.2004) (Gertner, J.) (noting that judges once “enjoyed wide discretion to sentence within the broad punishment ranges, based on......
  • State v. Brown
    • United States
    • Arizona Supreme Court
    • June 22, 2005
    ...(suggesting four possible meanings of the term "facts admitted," including statements made in plea colloquy); United States v. Mueffelman, 327 F.Supp.2d 79, 84 (D.Mass.2004) (stating that Blakely requires that facts must be found by a jury "or admitted by the defendant in a plea agreement o......
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2 books & journal articles
  • Steven L. Chanenson, the Next Era of Sentencing Reform
    • United States
    • Emory University School of Law Emory Law Journal No. 54-1, 2005
    • Invalid date
    ...an unguided, discretionary, determinate approach). Some courts have employed the proper terminology. E.g., United States v. Mueffleman, 327 F. Supp. 2d 79, 96 (D. Mass. 2004) (Gertner, J.) (observing that "there is a problem with reinstituting an indeterminate system, when there is no longe......
  • Inter-judge sentencing disparity after Booker: a first look.
    • United States
    • Stanford Law Review Vol. 63 No. 1, December 2010
    • December 1, 2010
    ...542, 543 (Michael Tonry ed., 1998). (21.) STITH & CABRANES, supra note 18, at 9 & 197 n.3. (22.) United States v. Mueffelman, 327 F. Supp. 2d 79, 83 (D. Mass. 2004) (Gertner, J.); see also Douglas A. Berman, Conceptualizing Booker, 38 ARIZ. ST. L.J. 387, 389 (23.) See James M. Ander......

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