U.S. v. Rivera-Calderon, CRIM.03-294(DRD).

• Decision Date: 11 January 2005
• Docket Number: No. CRIM.03-294(DRD).,CRIM.03-294(DRD).
• Citation: 354 F.Supp.2d 86
• Parties: UNITED STATES of America, Plaintiff v. Jose A. RIVERA-CALDERON, Defendant
• Court: U.S. District Court — District of Puerto Rico

354 F.Supp.2d 86

UNITED STATES of America, Plaintiff v. Jose A. RIVERA-CALDERON, Defendant

No. CRIM.03-294(DRD).

United States District Court, D. Puerto Rico.

January 11, 2005.

Ernesto G. Lopez-Soltero, AUSA, for Plaintiff.

Thomas R. Lincoln, San Juan, PR, for Defendant.

OPINION AND ORDER

DOMINGUEZ, District Judge.

Pending before the Court is defendant's, Jose A. RiveraCalderon, Motion for Court to Declare the Sentencing Reform Act's Mandatory Provisions, 18 U.S.C. § 3553(b) Unconstitutional and for Further Remedy as a Result Thereof (Docket No. 168). Defendant requests the Court to declare the effect of Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) over certain mandatory provisions of the Sentencing Reform Act. Defendant sustains that the Supreme Court's decision declaring the Washington's guidelines unconstitutional applies to the federal Sentencing Guidelines and to the Sentencing Reform Act in anything that would be incompatible with said decision. Defendant further alleges that if certain dispositions, related to the enhancement of the sentence, are in fact unconstitutional, then the Court should determine if said provisions of the federal Sentencing Guidelines are in fact severable allowing some of the dispositions of the Guidelines to survive. Further, defendant sustains that the courts should not be allowed to submit to the jury a special verdict as to any upward adjustments sought by the government since the statute provides for only the judge to increase a sentence within the statutory minimum and maximum provisions of the Act. The United States duly opposed. (Docket No. 173). On September 29, 2004, the matter was referred to Magistrate Judge Camille L. Velez-Rive for a Report and Recommendation, hereinafter "R & R" (Docket No. 196).

On November 4, 2004, the Magistrate Judge issued an R & R (Docket No. 218). However, defendant did not comply with a timely opposition.¹ Pursuant to Fed.R.Civ.P 72(b), "[a]bsent [timely] objection [...], the district court ha[s] a right to assume that [the parties] agreed to the magistrate's recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, "[f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that "[objection] to a magistrate's report preserves only those objections that are specified"); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988)(failure to file a timely objection shall constitute a waiver of the right to de novo, review by the district court and to appeal the district court's order); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised"). See generally United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).

Since defendant did not file a timely objection to the Magistrate's determination, the Court need only satisfy itself that there is no plain error on the face of the record in order to accept the unopposed R & R. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir.1996)(en banc)(extending the deferential "plain error" standard of review to the unobjected to legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982)(en banc)(appeal from district court's acceptance of unobjected findings of magistrate judge reviewed for "plain error"); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001)("Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous")(adopting the Advisory Committee note regarding Fed.R.Civ.P. 72(b)); ; Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990)( "when no objections are filed, the district court need only review the record for plain error").

Notwithstanding all of the above, the Court reviews on the merits the Report and Recommendation since the matter involves constitutional dimensions.

I. The Inquiries

The defendant moves the Court to consider several questions based on constitutional issues to the federal sentencing guidelines mandatory aspects, including whether its provisions could be severed post Blakely.² The principal challenges raised by the defendant revolve around the impact of the Supreme Court's decision in Blakely v. Washington to the federal Sentencing Guidelines and if so whether the mandatory aspects of the Guidelines affected by the decision are severable from the remainder of the Guidelines and the Sentencing Reform Act of 1984.³

The Magistrate Judge determined that a ruling as to defendant's contentions is necessary before defendant's trial is held enabling the jury to consider and determine, beyond reasonable doubt, matters which, pursuant to the federal Sentencing Guidelines, are reserved for the sentencing court under the preponderance of the evidence standard. However, the Magistrate Judge concluded that Blakely did not directly address the issues of constitutionality, application and construction of the federal sentencing guidelines. As to the severability aspect, in case of a determination that certain mandatory aspects of the Guidelines are, in fact, unconstitutional, the Magistrate Judge determined that "[a]court shall adhere to the elementary principle that the same statute may be in part constitutional and in part unconstitutional, and if the parts are wholly independent from each other, that which is constitutional may stand while that which is unconstitutional will be rejected." Magistrate Judge's Report and Recommendation (Docket No. 218, p. 8). Finally, the Magistrate concluded that whether the Sentencing Guidelines may be found constitutional or not, the appropriate remedy must be prospective and that since the First Circuit has yet to decide, she was in no position to make a determination as to the constitutionality of the Sentencing Guidelines. See generally United States v. Savarese, 385 F.3d 15 (1st Cir.2004). Hence, the R & R recommended that those sentencing enhancement factors be submitted to the jury, pursuant to the strict application expressed in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Accordingly, the government is to be authorized to present evidence as to those aspects of the enhancement to the jury since they potentially will also be expected to present said evidence to the court for sentencing purposes. Magistrate's Report and Recommendation at p. 10.

II. Legal Landscape

A. Blakely v. Washington

The core of defendant's inquiries depends on the application of the Supreme Court's holding expressed in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 applied to the federal Sentencing Guidelines. Therefore, the search for the answers as to defendant's questions must start with a review of the Supreme Court's decision in Blakely where the Court determined that the Washington Sentencing Guidelines that permitted an enhancement of the defendant's sentence beyond the statutory maximum, based on judicial determined facts rather than by facts determined by a jury, violated defendant's Sixth Amendment right to trial by jury.

In Blakely v. Washington, supra, the defendant was charged with first degree kidnaping pursuant to the Wash. Rev.Code Ann. § 9A.40.020(1). Notwithstanding, defendant plead guilty, admitting the elements, to a reduced charge of second degree kidnaping involving domestic violence and use of a firearm. In sentencing, pursuant to the plea agreement, the State recommended a sentence within the standard range of 49 to 53 months.⁴ The judge, however, entered a specific finding of deliberate cruelty and sentenced the defendant to 90 months, thus, rejecting the State's recommendation. The defendant appealed, the State Court of Appeals affirmed the state court and the State Supreme Court then denied discretionary review. The case then reached the United States' Supreme Court.

The Supreme Court then applied the rule established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and concluded that defendant's sentence was in direct violation of his Sixth Amendment rights. The Court reiterated 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 to a jury, and proved beyond a reasonable doubt." Id. at 490. The Court further clarified 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, 124 S.Ct. at 2537 citing Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Emphasis in the original. The Court further clarified that "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." Blakely v. Washington, 124 S.Ct. at 2537. Emphasis in the original. Hence, the Court concluded that whenever a judge imposes a sentence that a "jury's verdict alone does not allow ...the judge exceeds his proper authority." Id. In other words, "every defendant [who has not accepted his...