guarantee of the Sixth Amendment that "`[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury.'" Id. 2355. The court added
that, taken together, these rights "indisputably" entitled a
criminal defendant to "a jury determination that [he] is guilty
of every element of the crime with which he is charged, beyond a
reasonable doubt," and that the "Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which
he is charged." Id. 2355-56.
In discussing whether a fact is a part of the "elements" of a
crime or a mere "sentencing factor," the Apprendi court said
that "labels" do not afford an "acceptable answer," and that
"[d]espite what appears to us the clear `elemental' nature of the
factor here, the relevant inquiry is not one of form, but of
effect — does the required finding expose the defendant to a
greater punishment than that authorized by the jury's guilty
verdict?" Id. at 2365.
In the present case, where there has been no jury and no jury
verdict, the facts to establish the elements charged in the
indictment were contained in Norris's plea of guilty. That plea
was the functional equivalent of a guilty verdict on the charges.
A plea of guilty is more than a confession admitting that the
accused did various acts, "it is itself a conviction." Kercheval
v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed.
1009 (1927); Boykin v. Alabama, 395 U.S. 238, 241, 89 S.Ct.
1709, 1711, 23 L.Ed.2d 274 (1969).
Norris neither pleaded to nor admitted any of the facts that
the government says justify an increased punishment based on
findings to be made by a judge on alleged facts not admitted and
not proven before a jury beyond a reasonable doubt. It follows
that the defendant may not be exposed "to a greater punishment
than that authorized" by the facts stated in the plea of guilty.
To ascertain the penalty authorized by the facts to which
Norris pleaded the court must look to 21 U.S.C. § 841(b)(1)(A).
Under that section for a drug crime involving five kilograms of
cocaine the penalty is ten years to "not more" than life
That does not mean that this court is or would be authorized to
impose a sentence of up to life imprisonment. The United States
Sentencing Commission has promulgated Guideline provisions, that
is, laws, binding on a federal district court, which may not
disregard those laws. See 18 U.S.C. § 3742. Without the
"sentencing factors" adopted by the Probation Department but
adjusting the sentence for Norris's acceptance of responsibility
for the crime charged, his sentence would be 120 months.
The government argues that various circuit courts have said
that Apprendi does not apply where a judge has increased the
range of punishment based on the judge's own findings by a
preponderance of the evidence, provided the sentence imposed does
not exceed the maximum that Congress fixed by statute for the
crime, here life imprisonment. 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, 235 F.3d 858, 862 (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). See also
States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001), and United
States v. Breen, 243 F.3d 591, 599 (2d Cir. 2001).
If those decisions accurately state what the Apprendi opinion
means, then the opinion is a dead letter in most substantial
narcotics cases in the federal courts. There is no greater
sentence than life imprisonment for a defendant dealing in five
kilograms of cocaine or one kilogram of heroin.
If the court were to follow those circuit court decisions and
find by a preponderance of the evidence that the "sentencing
factors" not admitted in the plea of guilty should apply to
increase the sentence, the court would be required by the
Guidelines to impose a sentence of 188 to 235 months almost
doubling the maximum time of incarceration. In the opinion of
this court, Apprendi, fairly read, does not countenance the
violation of Apprendi's Constitutional rights.
Moreover, since the Supreme Court handed down Apprendi it has
granted certiorari in some forty cases, twenty six of them
federal drug cases in which the circuit courts approved Guideline
sentence increases based not on jury verdicts but on a judge's
findings by a preponderance of the evidence. The Supreme Court
vacated the circuit court judgments, and remanded for further
consideration in the light of Apprendi.
The Supreme Court's decisions making these remands indicated
clearly that the reasoning of the Apprendi opinion is not to be
restricted to instances where the sentence enhancement will cause
a sentence to exceed the statutory maximum. In many of the drug
cases remanded the judges imposed sentences that did not exceed
the maximum fixed in the statute.
A representative sample of the twenty-six drug cases remanded
includes cases where the quantity of drugs, the defendant's
managerial role in a conspiracy, or possession of a firearm were
"sentencing factors" found by a district judge by a preponderance
of the evidence. See, e.g., United States v. Thomas,
204 F.3d 381 (2d Cir. 2000), cert. granted, ___ U.S. ___, 121 S.Ct. 756,
148 L.Ed.2d 659 (2001); United States v. Hardin, 209 F.3d 652
(7th Cir. 2000), cert. granted, ___ U.S. ___, 121 S.Ct. 1071,
148 L.Ed.2d 948 (2001); United States v. Valensia,
222 F.3d 1173 (9th Cir. 2000), cert. granted, ___ U.S. ___, 121 S.Ct.
1222, 149 L.Ed.2d 133 (2001); United States v. Brown,
217 F.3d 247 (5th Cir. 2000), cert. granted, ___ U.S. ___, 121 S.Ct.
1072, 148 L.Ed.2d 950 (2001); United States v. Jackson,
213 F.3d 1269 (10th Cir. 2000), cert. granted, ___ U.S. ___, 121
S.Ct. 621, 148 L.Ed.2d 531 (2000); United States v. Hester,
199 F.3d 1287 (11th Cir. 2000), cert. granted, ___ U.S. ___, 121
S.Ct. 336, 148 L.Ed.2d 270 (2000); United States v. Steyskal,
221 F.3d 1345 (8th Cir. 2000), cert. granted, ___ U.S. ___, 121
S.Ct. 852, 148 L.Ed.2d 767 (2001).
In this court's opinion the circuit court decisions take out of
context the language in Apprendi that 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." Apprendi, 120 S.Ct. at 2363 (emphasis supplied).
Plainly that is not the only circumstance where an increase in
penalty must be submitted to a jury.
Apprendi was discussing a state case that had no guideline
system such as that in current federal law. New Jersey could have
adopted a similar guideline system. Instead, the state
legislature chose to enact the "hate crime" law providing for an
"extended term" of the sentence for firing a gun if the judge
found "by a preponderance of the evidence" that the defendant
had committed the underlying crime of shooting at the house
motivated by racial bias and to intimidate. The trial court found
that Apprendi was so motivated and sentenced him to twelve years
on that count, two more years than the maximum for the underlying
crime of shooting.
The enhancement in the New Jersey "hate crime" statute is
comparable to the Federal Guidelines for threatening or harassing
communications (Guideline 2A.6.1) and for threatening to assault
with a firearm. (Guideline 2A.2.2). Like a district judge
following the Guideline enhancements, the trial judge in New
Jersey could increase the sentence based on the judge's own
findings by a preponderance of the evidence.
In both the State case of Apprendi and the federal drug cases
defendant is deprived of the right to due process of law and the
right to a speedy and public trial by an impartial jury. The
deprivation is the same in the state cases as it is in the
federal cases even though the deprivation is accomplished by a
statute in the state cases and in the federal cases by
"Guidelines" which are binding law.
The fact that a separate State statute causes the eventual
sentence for an underlying crime to exceed the maximum penalty
for that crime has no bearing on the comparable deprivation of
the Constitutional rights of the defendants in both the federal
and state cases.
A defendant's Constitutional rights would not be so violated by
a sentencing guidelines system in which all facts exposing the
defendant to a particular sentence range must be included in the
indictment and found by a jury to have been proven beyond a
reasonable doubt. No doubt such a system would be inconvenient.
But compromises for the sake of convenience should not be made at
the expense of depriving Norris of his rights guaranteed by the
United States Constitution.
The court is prepared to sentence Norris on May 11, 2001 at
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