to show that the maximum punishment Norris could be increased from 14 to
about 22 years if the court were to find by a preponderance of the &
evidence and take into account the hearsay facts recited in the Probation
In short, if the reasoning of Apprendi as to a defendant's
constitutional rights applies here, Norris will serve about eight fewer
years in prison.
The government argues that "every Circuit" that has considered the
issue has concluded that such sentencing guideline enhancements that
result in a sentence below the "statutory" maximum in the present case
life imprisonment "do not run afoul of the holding or reasoning of
It is true that various Circuit Courts have said that Apprendi does not
apply where non-jury factual findings increased the range of punishment
provided the sentence imposed does not exceed the maximum that Congress
fixed by statute for the crime. See, e.g., United States v. Scheele,
231 F.3d 492, 497, n. 2, (9th Cir. 2000); United States v. Meshack,
225 F.3d 556, 576 (5th Cir. 2000); United States v. Williams, ___ F.3d
___ (3d Cir. 2000); United States v. Nealy, 232 F.3d 825, 829, n. 3 (11th
Cir. 2000); United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000);
Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000).
In this court's opinion these decisions take an improperly narrow view
of the functions that Congress has entrusted to the Sentencing
Commission. The Commission's function is not to guide or give advice to a
Federal Court; it is to promulgate provisions, that is, laws that, unless
they are unconstitutional, the federal courts are bound by law to follow
on pain of being reversed. 18 U.S.C. § 3742. In the felicitous words
of Justice Scalia in his dissent in Mistretta v. United States,
488 U.S. 361, 427, 109 S.Ct. 647, 682 (1989), the Sentencing Reform Act
of 1984 created "a new Branch altogether, a sort of junior varsity
Congress", not controlled or supervised by any government branch or
anyone else except by new legislation passed by Congress.
Whatever may be said about the merits of Mistretta's conclusions that
in creating the Sentencing Commission the Congress neither delegated
"excessive legislative power", nor "upset the constitutionally mandated
balance of power among the coordinate Branches", id. 488 U.S. at 412, 109
S.Ct. 647, 675, the majority opinion made no mention of the effect, if
any, of the Guidelines on "private rights." Mistretta thus is no
authority for depriving Norris of the Constitutional protection of a jury
trial or for watering down his Constitutional right to require the
government to prove beyond a reasonable doubt every fact necessary to
constitute the crime with which he was charged.
One Circuit Court case has stated that there was a "colorable argument"
that the sentencing Guidelines provide the equivalent of statutory
maximums. As the court said, the Guidelines have "the force and effect of
laws" and are "legally binding enactments in a manner nearly
indistinguishable from congressionally enacted criminal statutes",
particularly because the sentencing ranges promulgated by the Commission,
including their maximums and minimum's, "are incorporated into the
federal statutes by 18 U.S.C. § 3553 (b)". United States v. Kinter,
235 F.3d 192, 200 (4th Cir. 2000).
But the Kinter court nevertheless concluded that sentencing
enhancements based on facts found by a judge do not offend Apprendi. The
court reasoned that while Congress "delegated significant legislative
power to the Commission" to promulgate Guidelines for every federal
criminal offense "the substance of that delegation is decidedly
nonlegislative in character."
The court characterized the Commission's fixing of binding
"guidelines", including maximums, as "categorically different" from the
"legislative" act of setting maximum penalties. The difference was said
to be that Guidelines "merely
guide the discretion of district courts" and are merely "a constitutional
mechanism for channeling the discretion that a sentencing court would
otherwise enjoy in the absence of the Guidelines, id. at 201,
(quoting from a concurring opinion in United States v. Mack,
229 F.3d 226, 244 (3d Cir. 2000)).
The Guidelines, despite the name bestowed upon them, do not "guide" a
district court. Rather they direct a district court. Moreover, a
distinction between a maximum set by a statute and a maximum set by a
commission, with authority to do so, and "incorporated into" the
authorizing statutes, has no significance in determining the basic
Constitutional questions that Apprendi poses.
Does an individual accused of a crime have a right to a jury trial and
a right to require the government to prove beyond a reasonable doubt
every fact necessary to constitute the crime fixed by binding law? Since
the maximum fixed by the Guidelines is binding as a matter of law, the
answer can hardly be in doubt.
The Federal Courts once had discretion to impose any sentence they
chose, up to the statutory maximum. Now after adoption of the Guidelines
the courts have lost that broad discretion. Indeed it was a central
purpose behind the legislation creating the Guidelines to curb the courts'
discretion so as to abolish the "disparities" in the sentences of
individual judges. See Mistretta, 488 U.S. at 365, 366, 109 S.Ct 651,
652. It is hardly persuasive to argue that the discretion somehow still
lives but has been transmogrified into Guidelines.
The statement that the Guidelines simply "channel" the discretion a
court previously had but no longer has seems to this court more an ignis
fatuus than a serious argument.
The court will sentence Norris at 11 A.M. on February 23, 2001.
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