United States v. Gurley

• Decision Date: 17 May 2012
• Docket Number: Criminal Action No. 10–10310–WGY.
• Citation: 860 F.Supp.2d 95
• Parties: UNITED STATES of America, Plaintiff, v. Rodney GURLEY, Defendant.
• Court: U.S. District Court — District of Massachusetts

860 F.Supp.2d 95

UNITED STATES of America, Plaintiff,

v.Rodney GURLEY, Defendant.

Criminal Action No. 10–10310–WGY.

United States District Court, D. Massachusetts.

May 17, 2012.

Christopher J. Pohl, United States Attorney's Office, Boston, MA, for Plaintiff.

Benjamin D. Entine, Lynn, MA, for Defendant.

SENTENCING MEMORANDUM

YOUNG, District Judge.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury....

U.S. Const. art. III, § 2, cl. 3

... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; ...

U.S. Const. amend. V 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.

United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Stevens, J.)

The unique circumstances of the present case pose this question: “When the parties agree to submit to the jury a factual question central to the defendant's culpability and the defendant secures a partial acquittal, may a judge then subject the defendant to a second round of (judicial) fact finding?” In light of the constitutional bedrock limned above, the answer would seem obvious. It is not.

I. BackgroundA. The Necessity for This Memorandum

This memorandum is untimely. This First Circuit rightly has criticized district court memoranda filed after the taking of an appeal as “run[ning] a risk of creating an unwelcome appearance of partisanship. [The district court's] writing understandably may be viewed by the appealing party as a quasi-brief, filed as a way of defending the sentence against the appeal.” United States v. Martin, 520 F.3d 87, 97 (1st Cir.2008).

I apologize.

Candidly, I had not anticipated the particular circumstances presented here during the preceding six years and consider them highly unusual if not anomalous. As a result, this Court's ruling applied to the narrowest subset of cases. For these reasons, I did not expect this appeal, and while in retrospect I ought have drafted and issued this memorandum before imposing sentence, to do so would have left the defendant languishing in more restrictive pre-sentence detention rather than turning him over to the Bureau of Prisons with its wider array of rehabilitative programs and services, and I thus determined that a prompt sentencing was in the best interests of justice.

Now the government has appealed, as is its undoubted right. If its pre-sentence memorandum, see Gov't's Supplemental Sentencing Mem., ECF No. 75, is any indication, it seeks to use this case to mount a full scale assault on this Court's post-Booker approach to sentencing. This raises the stakes considerably. It is appropriate, therefore, for this Court to demonstrate that its sentence in the present case prescinds from a long and heretofore unchallenged approach to fashioning fair and individualized sentences, that a great deal of thought and research went into this sentence before its imposition, and that it is the peculiar circumstances of this particular case that distinguish it from the mine run of mandatory minimum sentences.

B. Post–Booker Sentencing

Fully to comprehend the narrow question presented here, one first must understand how this Court generally addresses sentencing issues post-Booker. It is an understatement to say that Booker worked a sea change in the law of federal sentencing. Douglas A. Berman & Paul J. Hofen, A Look at Booker at Five, Commentary, 22 Fed. Sent'g Rep. 77 (2009); Nancy Gertner, What Yogi Berra Teaches About Post–Booker Sentencing, 115 Yale L.J. Pocket Part 137 (2006); John C. Richter, Déjà Vu All Over Again: How Post–Booker Sentencing Threatens Equal Justice Under the Law, 20 Fed. Sent'g Rep. 340 (2008); Patrick Schepens, Solomon's Choice: Severing the Mandatory Requirement of the Federal Sentencing Guidelines to Save a System Congress Never Intended, 26 Miss. C.L.Rev. 375 (2006–2007); Jeffery T. Ulmer & Michael T. Light, The Stability of Case Processing and Sentencing Post–Booker, 14 J. Gender Race & Just. 143 (2010); see also, Admin. Office of the U.S. Courts, Report on the Impact of the Booker Case on the Workload of the Federal Judiciary (2006); Steven G. Kalar, Jane McClellan & Jon M. Sands, A Booker Advisory: Into the Breyer Patch, 29 The Champion 8 (Mar.2005). Like my colleagues, I struggled to harmonize the latitude I was afforded by Remedial Booker, see543 U.S. at 244–65, 125 S.Ct. 738, with the overarching constitutional requirements of Constitutional Booker,seeid. at 221–44, 125 S.Ct. 738.¹

The approach I ultimately adopted is explained fully in United States v. Kandirakis, 441 F.Supp.2d 282 (D.Mass.2006):

A. The Court's Initial Standing Procedure: “Blakelyizing” the Guidelines

At the initial criminal case management scheduling conference, the Court inquires of the government what, if any, enhancements it will seek should the defendant be convicted. The Court then informs all parties that the government must prove such enhancements to the jury at the trial beyond a reasonable doubt pursuant to the Federal Rules of Evidence. If, after deliberation, the jury finds the defendant guilty of the charged crime, it is also (on the same verdict form) asked whether the government has proven the Guidelines enhancement facts. The jury is instructed to use the same reasonable doubt standard as to these facts. As a corollary, when taking a plea, the Court carefully reminds the defendant that he has a right to a jury trial on any disputed enhancement and that it is the policy of the Court still to confer the Guidelines' discount for a plea should the government fail to meet its burden of proof as to that enhancement. In either event, the Court initially considered itself bound by the jury's findings. The defendant may, of course, waive the proffered jury trial as to any enhancement, in which case a jury-waived trial as to the enhancement will follow the main jury trial or the plea.

The burden of proof at such trial similarly was beyond a reasonable doubt upon a record of evidence admissible under the Federal Rules of Evidence.

There's nothing original about any of this. It was (and remains) the logical response to Blakely [ v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ].

...

Then came Remedial Booker.

...

B. The Court's Present Standing Procedure (Revised to Accommodate Remedial Booker )

...

In light of [the] controlling decisions, this Court revised its standard procedure in one critical respect: It is presently the responsibility of the judge to find the facts upon which any Guidelines enhancement rests. I do so. All other aspects of the Court's procedure, however, have remained the same. The jury is now relegated to an advisory capacity. Its presence and involvement, of course, still focuses the evidentiary presentation and secures the fair, impartial, and fresh opinion of twelve ordinary Americans. Its advice is of inestimable—but presently not controlling—value.

Id. at 318–20 (citations and footnotes omitted).

For more than six years, I have followed this approach to sentencing in every criminal case. In every plea colloquy, I have explored whether the defendant actually admits to the facts undergirding each sentencing enhancement, and in every trial the government has stepped up and sought to prove to the jury each sentencing enhancement by actual evidence beyond a reasonable doubt. In those few cases where a defendant has balked at exposing the jury to evidence of a specific enhancement, e.g., loss calculations or organizer-leader role in the offense, I have readily offered a jury-waived trial with the protections of proof beyond a reasonable doubt upon actual evidence. See, e.g., United States v. Thomas, Criminal Action No. 11–10172 (D.Mass.2012); United States v. Gonsalves, Criminal Action No. 10–10398 (D.Mass.2011).

Without exception, the system has worked smoothly, fairly, and well—until now.² Most recently, see the report of this Court in Carrasquillo v. United States, 818 F.Supp.2d 385, 390 n. 3 (D.Mass.2011). ³

Indeed, it has been a source of pride that Justices Scalia and Thomas have expressly endorsed this approach. See Rita v. United States, 551 U.S. 338, 378 n. 5, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (Scalia, J., joined by Thomas, J., concurring in part, concurring in the judgment) (“At least one conscientious District Judge has decided to shoulder the burden of ascertaining what the maximum reasonable sentence is in each case based only on the verdict and appellate precedent, correctly concluding that this is the only way to eliminate Sixth Amendment problems after Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) ....”) (citing United States v. Griffin, 494 F.Supp.2d 1, 12–14 (D.Mass.2007) (Young, J.)).⁴

Moreover, I have been gratified that the Supreme Court has now confirmed that imposing on the government a “proof beyond a reasonable doubt” standard as to the sentencing enhancements fits comfortably within the discretion of a district judge “to select a specific sentence within a defined range.” Rita, 551 U.S. at 352–53, 127 S.Ct. 2456 (citations and quotation omitted).

Not the least of the benefits of relying on jury scrutiny of actual evidence is that the enhanced fact finding that results removes much of the tensions which led this Court to declare the mandatory guidelines unconstitutional as applied even before Blakely, 542 U.S. 296, 124 S.Ct. 2531.Compare United States v. Green, 389 F.Supp.2d 29 (D.Mass.2005) (railing against the oxymoronic mandatory guidelines), rev'd sub nom. In re United States, 426 F.3d 1 (1st Cir.2005), with United States v. West, 552 F.Supp.2d 74 (D.Mass.2008) (detailing the benefits of advisory guidelines).

On the most practical level, I have learned that guideline sentencing enhancementseasily can be...