Being Sentenced Without Proof Beyond a Reasonable Doubt

The American public generally assumes that those who commit federal crimes and are imprisoned have earned the consequences of their actions and deserve the punishments they receive. The public also assumes that when someone receives a lengthy federal sentence—such as a decade or more—the severity of the punishment reflects the seriousness of the crime and is therefore justified. While this may be true in some cases, it raises important questions: what if the federal criminal system does not perform in the way the public believes it does? When an American citizen is arrested on federal charges, what procedural protections remain in place? Does that person retain the right to a trial? And must the government still prove every element of the alleged federal crime beyond a reasonable doubt?

Most Americans believe in the fairness of the federal justice system, and that the federal courts apply the laws equitably using the highest standard of evidence called "proof beyond a reasonable doubt."[1] However, despite the rights guaranteed in the Sixth Amendment of the U.S. Constitution, this standard has been weakened many times through various case laws from the courts. One case in particular changed the federal justice system to an unbelievable and unprecedented amount of legal craziness—one which caused skyrocketing imprisonments and lengthier sentences within the Federal Bureau of Prisons.[2] This case is called United States v. BOOKER, 543 U.S. 220 (2005).[3]

Before understanding the unprecedented legal chaos after BOOKER, I want to explain the United States Sentencing Guidelines (USSG)[4] in regards to an American citizen's right to a jury trial. The USSG was created by the Sentencing Reform Act of 1984[5], a statute instituted by the 98th U.S. Congress abolishing federal parole. At the time, the intent of Congress was to instill a federal legal justice system that was fair and equal to the sentenced federal prisoner, no matter which federal district they were sentenced. In other words, federal judges were restrained by the USSG to the amount of sentenced time performed by the convicted federal prisoner to his criminal conduct. As such, Congress instituted a mandatory requirement to all federal judges to abide by the USSG. This mandatory requirement was the legal issue discussed in BOOKER[6], the text which I will refer.[7]

BOOKER's case illustrates the mandatory nature of the USSG authorizing his sentence to within 210-262 months. The district court did not perform this; instead, the court "found facts beyond those found by the jury." In doing so, the court sentenced him to 360 months—98 months (or 8-plus years) above the Guidelines mandated by Congress—based on facts established by one federal judge without a jury.

Paraphrasing from BOOKER 543 U.S. 228, the Court of Appeals from the Seventh Circuit held that this application of the Sentencing Guidelines conflicted with the Supreme Court's holding of the court case Apprendi v. New Jersey, 543 U.S 220, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) 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."[8] While relying on the Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the court supported that the statutory maximum sentence that may be imposed by a judge "...was solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." The Seventh Circuit Court of Appeals concluded that BOOKER's sentence violated the Sixth Amendment, and vacated the judgement of the District Court, and remanded for resentencing. The U.S. government appealed the decision, and the Supreme Court thereafter affirmed the Court of Appeals for the Seventh Circuit. Essentially, the Supreme Court agreed that the district court could not increase BOOKER's sentence without proof beyond a reasonable doubt on any element of criminal conduct. Herein lies the Constitutional problem: this decision conflicted with the mandatory USSG that was established by Congress.

When a district court follows the mandatory USSG that was passed by Congress (like the case of BOOKER), the district court would violate one of two laws. On one hand, if a district court follows the Supreme Court's ruling in APPRENDI and BLAKELY and only sentences a defendant by the jury's verdict, the district court violates the mandatory USSG. On the other hand, if the district court follows the mandatory USSG and sentences a defendant using both conduct from a jury's verdict and the facts by a judge, the district court then violates APPRENDI and BLAKELY.

In the case of BOOKER, the district court did just that, and the district court's decision was overturned. In order to (somewhat) fix this legal problem and still comply with the Supreme Court's decision, they made the USSG "advisory" instead of "mandatory" so that a district court can follow APPRENDI and BLAKELY. Congress could have stepped in and changed the mandatory nature of the USSG in such a way that it would remedy this legal issue at a federal defendant's sentencing, but they did not. As a result, the lower courts then supported that the USSG as advisory. Many accepted that the legal issue of a federal defendant's criminal sentencing by a jury based on "proof beyond a reasonable doubt" had been fixed and was being applied properly within the district courts; however, this is not what is happening in current legal cases.

Both the district courts and the appeal courts have agreed that the USSG are advisory, as based on BOOKER. As I mentioned above, Congress made the USSG mandatory in order to maintain fairness and equality across all federal district courts. The judges did not want this, and as a result federal sentencing in the courts were kept controlled from 1986 up until 2005 when BOOKER was decided. After the BOOKER decision, the federal courts could now claim that the USSG were advisory, and, as a result, the courts could sentence a federal defendant to whatever decision was issued by the sentencing judges. This is a complete opposite to what the Supreme Court opinioned. The Supreme Court deemed the USSG advisory so that the lower courts will follow both APPRENDI and BLAKELY. Now, the lower courts are choosing not to follow APPRENDI and BLAKELY, and have instead been sentencing federal defendants without the Constitutional "Proof Beyond a Reasonable Doubt" standard on each element of the federal crime. In essence, the federal justice system can convict anyone and apply any amount of prison time in sentencing that they want.

The courts are manipulating the Supreme Court's decision of BOOKER so that they can convict and sentence anyone to any amount of imprisonment time that they want to give. Since 2005, the courts have use other case law to support their legal opinions of BOOKER so as to continue performing this unconstitutional act (which I will explain in future posts). The federal law can be very complicated; because of this, federal law is at risk for being easily manipulated. This is why I want to discuss the intricacies of the federal legal system. One of the Supreme Court's duties is to interpret the United States Constitution, which they performed in their BOOKER decision; it is the lower courts that are failing to perform this same responsibility.

Footnotes

1. According to the Legal Information Institute at Cornell Law School, the standard "proof beyond a reasonable doubt" is defined as "the legal burden of proof required for a criminal conviction. In a criminal case, the prosecution must prove the defendant’s guilt beyond a reasonable doubt, meaning the evidence must leave jurors firmly convinced of the defendant’s guilt. The standard requires more certainty than any other burden of proof in law. It is much higher than the civil standard of preponderance of the evidence, which only requires that a claim be more likely true than not."
2. See Appendix A below for footnotes to the 2016 U.S. Supreme Court opinion Molina-Martinez, 194 L. Ed. 2d 444. These notes reference the United States v. Booker case.
3. Full case citation: "United States v. Booker, 543 U.S 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)." The defendant's last name is annotated in caps for easier identification in this post.
4. For more information on the current United States Sentencing Commission's Guidelines Manual, click here.
5. Sentencing Reform Act of 1984, S. 668, 98th Cong. (1983). For more information on the federal statute, click here.)
6. Select text from 18 U.S. Code § 3553(b)(1), Imposition of A Sentence. (For the complete text of 18 U.S. Code § 3553, click here).

   Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.

7. For the partial text of Justice John P. Stevens' opinion in U.S. v. BOOKER regarding the controversy of the Federal Sentencing Guidelines and the USSG, see Appendix B below.
8. This is the cite number for the Seventh Circuit Court of Appeals, United States v. Booker, 375 F.3d 508, 510 (CA7, 2004).

Appendix A

Notes, "United States v. Molina-Martinez, 578 U.S 189, 136 S. Ct. 1338, 194 L. Ed. 2d 444 (2016)." (For the complete text of case, click here.)

1. See, e.g., United States Sentencing Commission, Report on the Continuing Impact of United States v. Booker on Federal Sentencing 3 (2012) (Booker Report) (“[T]he Commission’s analysis of individual judge data showed that the identity of the judge has played an increasingly important role in the sentencing outcomes in many districts”); Bowman, Dead Law Walking: The Surprising Tenacity of the Federal Sentencing Guidelines, 51 Houston L. Rev. 1227, 1266 (2014) (“Inter-Judge Disparity Has . . . Increased Since Booker”); Scott, Inter-Judge Sentencing Disparity After Booker: A First Look, 63 Stan. L. Rev. 1, 30 (2010) (“[I]n their guideline sentencing patterns, judges have responded in starkly different ways to Booker, with some following a ‘free at last’ pattern and others a ‘business as usual’ pattern”).
2. See, e.g., Booker Report 6 (“The influence of the guidelines . . . has varied by circuit”); Bowman, supra, at 1261 (“Different Districts Have Had Very Different Post-Booker Experiences”); Yang, Have Interjudge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker, 89 N. Y. U. L. Rev. 1268, 1277, 1319–1323 (2014) (presenting “evidence of substantial interdistrict differences in sentencing outcomes”).
3. See, e.g., Booker Report 5 (“The influence of the guidelines . . . has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses”).
4. (Text of note skipped by author for brevity.)
5. See, e.g., Assessing Booker and Its Aftermath, Practice Under the Federal Sentencing Guidelines §1.02(C)(1), pp. 1–14 to 1–16 (D. Debold ed., 5th ed. 2016) (Debold) (“Since the first weeks after Booker, district courts have been engaged in a dynamic debate over the precise weight to be given the now advisory Guidelines,” and “there are reasons to expect continued evolution in sentencing norms”); id., §1.02(C)(2) (“[D]istrict courts can be expected to continue to test the boundaries of their discretion. . . . Accordingly, while it is clear that district courts now enjoy more discretion at sentencing, the proper bounds of that discretion will continue to be explored”).
6. See, e.g., Yang, 89 N. Y. U. L. Rev., at 1277 (finding that “Judges who have no prior experience sentencing under the mandatory Guidelines regime are more likely to depart from the Guidelines-recommended range than their pre-Booker counterparts, suggesting that newer judges are less anchored to the Guidelines”); id., at 1318–1319 (“The ‘anchor’ effect of the Guidelines sentence may be more prominent for pre-Booker appointees because these judges are more acculturated to and experienced with constraining their sentences to the dictates of the Guidelines. In contrast, the ‘anchor’ effect is less prominent for post-Booker appointees. These potential anchoring differences . . . may ‘increase as the years go by and the bench is filled with individuals who have no history with binding guidelines’ ”); see also, e.g., Debold §1.02(C)(1), at 1–16 (“Sentencing judges, particularly more recent appointees, are also growing increasingly skeptical of the Guidelines as they become more comfortable viewing the Guidelines as advice and look deeper into the reasoning supporting (or failing to support) the Guidelines’ recommendations”); Gertner, Supporting Advisory Guidelines, 3 Harv. L. & Pol’y Rev. 261, 270 (2009) (describing continued Guideline sentencing as the result of “the habits ingrained during twenty years of mandatory Guideline sentencing”); Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L. J. 1420, 1496–1497 (2008) (“[A]s a new generation of prosecutors and judges enters into service, the pendulum may swing back toward the local exercise of informed discretion, if Booker lasts that long. But incumbent sentencing decision makers may be reluctant to regard as unreasonable the sentences they were obliged to seek and impose for two decades under the command and the conceit of law”).

Appendix B

Quoted text from Justice John P. Stevens' opinion, "United States v. Booker, 543 U.S. 235 (2005)." (For the complete text of Stevens' opinion, click here).

...Booker's case illustrates the mandatory nature of the Guidelines. The jury convicted him of possessing at least 50 grams of crack in violation of 21 USC 841(b)(1)(A)(iii) based on evidence that he had 92.5 grams of crack in his duffle bag. Under these facts, the Guidelines specified an offense level of 32, which, given the defendant's criminal history category, authorized a sentence of 210-to-262 months. See USSG 2D1.1(c)(4). Booker's is a run-of-the-mill drug case, and does not present any factors that were inadequately considered by the Commission. The sentencing judge would therefore have been reversed had he not imposed a sentence within the level 32 Guidelines range.

Booker's actual sentence, however, was 360 months, almost 10 years longer than the Guidelines range supported by the jury verdict alone. To reach this sentence, the judge found facts beyond those found by the jury: namely, that Booker possessed 566 grams of crack in addition to the 92.5 grams in his duffle bag. The jury never heard any evidence of the additional drug quantity, and the judge found it true by a preponderance of the evidence. Thus, just as in Blakely, "the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact." 542 U.S., at 305, 159 L. Ed 2d 403, 124 S. Ct. 2531. There is no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and pg. 645 the sentences imposed pursuant to the Federal Sentencing Guidelines in these cases...