Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 11, no. 1 Sept. 28, 2000

Offense Conduct

Drug Quantity

More circuits examine effect of Apprendi decision on

sentencing. The Fifth Circuit remanded some of the sentences in a drug conspiracy case in light of Apprendi v.

New Jersey, 120 S. Ct. 2348 (2000). The court noted that it

has “continually endorsed” handling drug quantity as “a

sentencing enhancement entrusted to the judge’s determination rather than an element of the offense which

must be determined by the jury.” However, the court did

not reconcile its precedent with Apprendi’s holding that

the jury must find drug amounts that increase a sentence

above the maximum otherwise authorized by the jury

verdict, “because the government ‘conced[es] that the

Apprendi decision applies to 21 U.S.C. § 841.’”

The district court had followed the usual procedure of

determining drug amounts based on a preponderance of

the evidence; neither the indictment nor the jury verdict

specified amounts for any defendant. Most defendants

were sentenced below the statutory maximum for their

basic offense of conviction, given their criminal history.

However, one defendant’s two life sentences, based on

the court’s quantity findings, were remanded because

they exceeded the thirty-year maximum for his basic

offenses of conviction. The appellate court also remanded several supervised release terms that exceeded

the maximum terms allowed for the base offenses.

The court rejected one defendant’s claim that

Apprendi should be read broadly to preclude giving him

“a higher sentence within [the statutory] range based on

the application of a Sentencing Guidelines enhancement.” Although Apprendi did not resolve that issue,

“[g]iven that the more limited reading of Apprendi is a

more plausible reading of the case, and given the profound effect a broader rule would have on existing Supreme Court and Fifth Circuit precedent, we believe the

limited reading of Apprendi is the more desirable one.”

U.S. v. Meshack, No. 99-50669 (5th Cir. Aug. 28, 2000)

(Garza, J.). See also U.S. v. Smith, 223 F.3d 554, — (7th Cir.

2000) (for defendants who were convicted of operating

continuing criminal enterprise under 21 U.S.C. § 848(a),

which carries sentence of thirty years to life, Apprendi did

not require submitting facts to jury that, under § 848(b),

would require mandatory life sentence).

The Ninth Circuit did specifically rule on Apprendi’s

effect on its prior precedent. Finding that Apprendi requires “that a fact that increases the prescribed statutory

maximum penalty to which a criminal defendant is exposed . . . be submitted to a jury and proven beyond a

reasonable doubt,” the court held “that the amount of

drugs for which a defendant is sentenced under 21 U.S.C.

§ 841(b)(1) is such a fact, and that our existing precedent

to the contrary is overruled to the extent that it is inconsistent with Apprendi.”

Defendant was convicted of conspiracy to possess

with intent to distribute marijuana. The jury verdict did

not specify any quantity of marijuana, so “the only sentence under § 841 justifiable under the facts as found by

the jury would be a sentence . . . of not more than five

years applicable to possession of less than 50 marijuana

plants. See 21 U.S.C. § 841(b)(1)(D). The trial court’s finding that Nordby possessed 1000 or more plants under

§ 841(b)(1)(A)(vii) increased Nordby’s sentence to ‘not [ ]

less than 10 years or more than life’ and a possible fine.

Thus, the judge’s finding, made under a preponderance

standard, increased the statutory maximum penalty for

Nordby’s crime from five years to life.”

“We conclude that the district court erred by sentencing Nordby under 21 U.S.C. §§ 841 and 846 for manufacturing, possessing with intent to distribute, and conspiring to possess with intent to distribute 1000 or more

marijuana plants without submitting the question of

marijuana quantity to the jury and without a finding that

the marijuana quantity had been proved beyond a reasonable doubt. We further conclude that the constitutional rule in Apprendi undermines our existing precedent holding that a defendant’s sentence under § 841 can

be based on a judge’s finding at sentencing of drug quantity under a preponderance-of-the-evidence standard.”

The court held that, even under plain error review, defendant was entitled to resentencing “subject to the maximum sentence supported by the facts found by the jury

beyond a reasonable doubt, consistently with Apprendi

and this opinion.”

U.S. v. Nordby, No. 99-10191 (9th Cir. Sept. 11, 2000)

(Canby, J.). Cf. In re Joshua, No. 00-14328 (11th Cir. Aug. 30,

2000) (per curiam) (denying application to file second or

successive § 2255 motion based on Apprendi because

“the Supreme Court has not declared Apprendi to be

retroactive to cases on collateral review”).

The Sixth Circuit applied Apprendi in a case where

defendant pled guilty to distribution of heroin pursuant

to a plea agreement. The agreement stated that defendant understood her maximum term of imprisonment

was twenty years for distribution, but that if the district

court found that death resulted from the distribution,

21 U.S.C. § 841(b)(1)(A)–(C), she would be sentenced to
2 Guideline Sentencing Update, vol. 11, no. 1, September 28, 2000 • a publication of the Federal Judicial Center

a term of 20 years to life. The district court found, by a

preponderance of the evidence, that defendant’s distribution of heroin did cause a death, and sentenced her to

292 months in prison. Defendant appealed, claiming that

Jones v. U.S., 119 S. Ct. 1215 (1999), dictates that the factual

determination as to whether death resulted should have

been determined beyond a reasonable doubt.

The appellate court “agree[d] that Jones and the subsequent Supreme Court decisions elaborating on Jones

compel a finding that the death resulted beyond a reasonable doubt.” Although “Congress was fairly clear in delineating that the ‘if death results’ provision is a sentencing

provision,” the Apprendi Court “freed itself from the strictures of legislative intent” in holding that “any fact” (other

than a prior conviction) that increases the statutory maximum must be proved beyond a reasonable doubt. “Our

duty, in light of this clear dictate from the Court, is to

examine whether the sentencing factor in this case was a

factual determination, and whether that determination

increased the maximum penalty for the crime charged in

the indictment. We find that the statute at question here

today, 18 U.S.C. § 841, provides for a factual determination of whether the distribution of drugs caused death or

serious bodily injury, and that the factual determination

significantly impacts the sentence imposed by the court,

increasing the maximum penalty from 20 years to that of

life imprisonment.”

While defendant “waived her right to a jury trial of the

issue of whether her distribution of heroin caused the

death,” she “did not waive the right to have a court decide

any remaining elements of the offense beyond a reasonable doubt, as opposed to making those determinations

by a mere preponderance of the evidence. Because the

provisions at issue are factual determinations and because they increase the maximum penalty to which

Rebmann was exposed, we find that they are elements of

the offense which must be proven beyond a reasonable

doubt.” Because it was not clear from the record that the

district court would have reached the same conclusion

under the stricter standard, the court remanded “for a

determination of whether [the] death was caused by the

distribution of heroin beyond a reasonable doubt.”

U.S. v. Rebmann, No. 98-6386 (6th Cir. Aug. 28, 2000)

(Merritt, J.).

See Outline at II.A.3.a and c

Departures

Mitigating Circumstances

Replacing earlier decisions, Seventh and Ninth Circuits

hold that departures based on sentencing disparities

were properly denied and discuss limited circumstances in which disparity might warrant departure. In

the Seventh Circuit, three defendants were convicted on

three counts related to a bank robbery. One defendant

pled guilty to all charges under a plea agreement and

cooperated with the government. He received a departure for extraordinary family circumstances and also for

substantial assistance under § 5K1.1 (but not 18 U.S.C.

§ 3553(e)). Although subject to a prison term of 117–131

months, which included a mandatory sixty-month sentence, he was sentenced to twelve months of home confinement. The government did not appeal the departure.

The other two defendants went to trial and received

sentences of 138 and 195 months in prison. They unsuccessfully moved for downward departures under the rationale of U.S. v. Meza, 127 F.3d 545, 549–50 (7th Cir. 1996),

which had stated that, although a disparity between codefendants’ sentences that results from the proper application of the Guidelines can never be a basis for departure, an “unjustified disparity” may warrant departure.

The defendants claimed that the large difference between

their sentences and their codefendant’s was such an “unjustified disparity” because the district court wrongly

departed below the sixty-month minimum sentence

without a government motion under § 3553(e). The appellate court originally agreed, finding that the departure

below the minimum was in fact an improper application

of the Guidelines and remanding for consideration of

“whether the unjustified disparity . . . should serve as a

basis for a downward departure” in light of Meza. See U.S.

v. McMutuary, 176 F.3d 959, 967–70 (7th Cir.), reh’g granted

and opinion vacated, 200 F.3d 499 (7th Cir. 1999).

On rehearing, the appellate court determined “that the

interpretation of the term ‘unjustified disparity,’ provided

as dicta in Meza, which would require the sentencing

court to consider all unjustified sentencing disparities

between co-defendants as a basis to depart from the

applicable Guidelines range, focuses too narrowly on

comparison of sentences of participants in one offense,

rather than on comparison of sentences of all persons

convicted of the same offense, nationwide.” After looking

at the relevant Guidelines and statutes, and considering

the problems—including increased disparity—that could

result from departures based on disparities among codefendants, the court reached a different conclusion:

In light of the promulgation of Guidelines with the

intent to create uniformity of sentencing nationwide for

all similarly situated defendants, we believe that the Sentencing Commission implicitly considered the potential

for disparity of sentences, whether justified or unjustified,

between co-defendants in its creation of an applicable

sentencing range. As such, we conclude that disparities

between the sentences of co-defendants ordinarily

should not be considered as a factor in the decision to

depart from the Guidelines. Because district courts must

only consider factors that have not been considered by the

Sentencing Commission, see 28 U.S.C. § 3553(b), our

holding that the naked existence of an unjustified disparity between the sentences of co-conspirators should not
Guideline Sentencing Update, vol. 11, no. 1, September 28, 2000 • a publication of the Federal Judicial Center 3

be considered as a basis for departure from the applicable

sentencing range of the Guidelines does not conflict with

the proscription in Koon that the appellate courts not

create new classes of impermissible grounds for departure. As such, we believe that the sentencing court should

consider only an “unjustified disparity” in the sentencing

of co-defendants when the sentence imposed on the appellant co-defendant is “unjustified” in length in comparison to the sentences imposed on all other individuals

appropriately sentenced under the Guidelines for similar

criminal conduct.

The court added that it did not hold “that unjustified

disparities may never be considered as bases for departure. In certain circumstances, such as when an unjustified disparity is created by the abuse of prosecutorial

discretion, . . . the sentencing court may consider the disparity as a factor in the determination whether to depart

from the sentence of a co-defendant. In addition, a sentencing court abuses its discretion by deciding to depart

from the applicable sentencing range for the sentence of

any defendant, whenever such departure creates an unjustified disparity between the sentence of that defendant and the sentences of all other similarly situated

individuals nationwide.” On the record before it, the court

affirmed the denial of departures because “even though

there was an unjustified sentence disparity relative to

their co-defendant . . . , there was no unjustified or unwarranted disparity in these appellants’ sentences, as

those terms are used in Koon or in § 3553(a)(6).”

U.S. v. McMutuary, 217 F.3d 477, 488–90 (7th Cir. 2000).

Cf. U.S. v. Martin, 221 F.3d 52, 57–58 (1st Cir. 2000) (remanded: “perceived disparity between the defendant’s

[sentencing range] and the national median sentence for

persons convicted of federal drug-trafficking offenses” is

improper ground for departure). But see U.S. v. Wright,

211 F.3d 233, 238–39 (5th Cir. 2000) (remanding district

court’s conclusion that it could not consider downward

departure “based on discrepancies in sentences among

co-defendants”—after Koon, such a departure should not

be considered categorically prohibited); U.S. v. Daas, 198

F.3d 1167, 1180–81 (9th Cir. 1999) (remanded: same—

“[d]ownward departure to equalize sentencing disparity

is a proper ground for departure under the appropriate

circumstances”).

In the Ninth Circuit case, defendant pled guilty to

illegally reentering the United States after being deported, 8 U.S.C. § 1326(a), and admitted to a prior aggravated felony, which subjected him to a longer sentence

under §1326(b). He argued that he should receive a downward departure based on an alleged disparity between his

sentence—70–87 months—and lower sentences similarly situated defendants had received in other California

districts at that time. Defendants in the Southern District,

for example, were eligible to participate in a “fast-track”

plea-bargaining program whereby defendants—including some who would normally qualify for a § 1326(b)

increase—were allowed to plead guilty under § 1326(a)

for a maximum sentence of two years; defendants who

faced sentencing under § 1326(b) were offered plea bargains that limited sentences to five years. The district

court concluded that this was not a valid basis for departure as long as defendant was properly sentenced under

the guidelines that applied to him.

The appellate court originally reversed, holding that

“sentencing disparities among federal districts based on

U.S. Attorneys’ plea-bargaining practices can be a ground

for departure in the appropriate case.” Such a ground is

not forbidden by the Sentencing Commission and is not

otherwise mentioned in the Guidelines, so a district court

should consider whether the factor takes a case out of the

“heartland” of the applicable guideline. The court concluded that, “given the alleged sentencing disparity, the

single most influential factor in an alien’s sentencing for a

violation of § 1326 is the location of his arrest. . . . The

‘heartland’ of Guideline § 2L1.2 certainly does not take

account of that variable.” The court also concluded that

the effects of the different plea-bargaining polices ran

counter to the statutory goal of “avoiding unwarranted

sentencing disparities among defendants with similar

records who have been found guilty of similar criminal

conduct.” 28 U.S.C. § 991(b)(1)(B). The court remanded

for reconsideration, but noted that its decision was “necessarily limited to the unique circumstances” of this case.

U.S. v. Banuelos-Rodriguez, 173 F.3d 741, 743–47 (9th Cir.),

vacated for reh’g en banc, 195 F.3d 454 (9th Cir. 1999).

On rehearing en banc, the court affirmed the district

court’s refusal to depart. While acknowledging that “it was

more likely that an illegal alien who was eligible for the

enhancement provided by § 1326(b) would be sentenced

under § 1326(b) if the alien was apprehended in the Central District” than in districts with the “fast-track” program, the court reasoned that “[n]othing about the . . .

‘fast-track’ program lessens the severity of Defendant’s

conduct or makes his criminal or personal history more

sympathetic. The fact that, had Defendant been apprehended in the Southern District, he might not have been

punished to the fullest extent of the law, does not make his

otherwise lawful sentence less justified. Thus, the existence of differing prosecutorial policies regarding § 1326

violators is not a ‘mitigating circumstance.’”

The court then noted that the Guidelines define the

“heartland” as “a set of typical cases embodying the conduct that each guideline describes. When a court finds an

atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs

from the norm, the court may consider whether a departure is warranted.” (Emphasis added by court.) In the case

at hand, “Defendant and his conduct fall squarely within

the heartland of his offense of conviction.”
Guideline Sentencing Update, vol. 11, no. 1, Sept. 28, 2000

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Furthermore, “the Guidelines have sought to achieve

uniformity in sentencing only by attempting to equalize

the sentences of those who have engaged in similar criminal conduct, have similar criminal backgrounds, and

have been convicted of the same offense. . . . Here, Defendant agreed to plead guilty to violating § 1326(a) and to

admit facts making him eligible for the enhancement

provided by § 1326(b)(2). An alien who merely pleads

guilty to a simple violation of § 1326(a) and an alien who

pleads guilty to violating §1326(a) and also admits facts

demonstrating eligibility for the enhancement under

§ 1326(b)(2) are not pleading ‘guilty to essentially the

same crime.’ . . . Granting a downward departure on the

ground that Defendant received a longer sentence than

other defendants who have been convicted of committing a different crime would be inappropriate.”

The court also concluded that the Sentencing Commission “considered the effects that the exercise of

prosecutorial discretion has on the uniformity of sentences. The Guidelines allow sentencing courts to take

certain limited actions in narrow circumstances to address a prosecutor’s inappropriate exercise of discretion.

In all other circumstances, the Guidelines do not give

courts the authority to interfere with a prosecutor’s exercise of discretion in charging and plea bargaining by

departing from an applicable Guideline range.” In addition, “the legislative history of the Guidelines also supports our conclusion that sentencing disparities arising

from the charging and plea bargaining decisions of different United States Attorneys is not a proper ground for

departing from an otherwise applicable Guideline

range.” As defendant has not alleged, and no evidence

shows, that there was any abuse of prosecutorial discretion, departure was not warranted.

U.S. v. Banuelos-Rodriguez, 215 F.3d 969, 973–78 (9th

Cir. 2000) (en banc). Accord U.S. v. Bonnet-Grullon, 212

F.3d 692, 705–10 (2d Cir. 2000) (affirming district court’s

ruling that it did not have authority to consider downward

departure for § 1326 defendants who claimed that similarly situated defendants in some California districts receive significantly lower sentences; such departures are

“categorically excluded by the terms of §§ 2L1.2 and

5K2.0, by the structure and theory of the Guidelines as a

whole, and by the policy statements stating that the

courts’ sentencing decisions are not to intrude on discretionary prosecutorial charging decisions except as the

Guidelines provide”); U.S. v. Armenta-Castro, No. 99-4155

(10th Cir. Sept. 12, 2000) (Murphy, J.) (agreeing with Second and Ninth Circuits in similar case where it affirmed

denial of departure for § 1326 defendant, concluding that

“the governing provisions of the United States Code and

the Sentencing Guidelines categorically proscribe the

consideration of sentencing disparities flowing from the

exercise of prosecutorial discretion in charging and plea

bargaining practices.”).

See Outline at VI.E