The opinion of the court was delivered by: COLLEEN McMAHON, District Judge
MEMORANDUM DECISION AND ORDER
Defendant stands before the Court convicted of one count of
conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371.
In brief, defendant and another individual, Leonard Weiss,
entered into an agreement to defraud Einstman's employer. Weiss
was a supplier to the employer; Einstman, who was in charge of
purchasing, approved dummy or inflated invoices for Weiss'
products. The two men split the resulting overcharges. The total
amount of the fraud perpetrated against Einstman's employer was
$240,000. Einstman personally received one-half of that amount.
There was no plea agreement; the Government prepared a Pimentel
letter, and Probation concurred with its proposed USSG
calculations. At a total offense level of 17 and a Criminal
History category of I, Probation recommended a sentence of
incarceration at the low end of the Guidelines range of 24-30
months. The Guidelines calculation began from a base offense
level of six, which is the base offense level assigned to all
convictions for fraud pursuant to USSG § 2B1.1(a), and enhanced
that base offense level by the following factors: 12 levels
because the loss (as calculated by the Government and Probation)
was $240,000, and two levels because the defendant abused a position of trust, pursuant to § 3B1.3. The offense level was
reduced by three levels due to defendant's timely acceptance of
responsibility, pursuant to § 3E1.1(a) and (b). The defendant had
no prior convictions, although the conspiracy of which he stands
convicted spanned a period of four years, which means the
defendant has been immersed in criminal activity for over 10% of
his 38 year life.
The amount of the loss was admitted by the defendant in his
plea allocution (Tr. 28-29) and defendant does not contest it.
The abuse of trust enhancement was not specifically admitted by
the defendant at his plea allocution, and defendant contests its
applicability. Per 18 U.S.C. § 3663, the Court is required to
order restitution in this case.
Einstman argues that the United States Sentencing Guidelines
must be found to be unconstitutional following the United States
Supreme Court's decision in Blakely v. Washington, No 02-1632,
2004 WL 1402697 (June 24, 2004). Blakely requires that any fact
that increases a sentence beyond the "relevant statutory maximum"
(defined by a five-member majority of the Supreme Court as the
maximum sentence a judge may impose without making any additional
findings of fact) must be proved to a jury beyond a reasonable
doubt, unless the defendant waives his Sixth Amendment rights in
this regard. Einstman also argues that any order of restitution
is also subject to Blakely. The Government demurs as to both
This Court has already sentenced several defendants
post-Blakely, and I am on record as concluding that the USSG
are unconstitutional, adopting the reasoning set forth by The
Hon. Paul Cassell in United States v. Croxford, 2004 WL 1462111
(D. Utah, June 29, 2004). See transcripts in United States v.
Roamy Fils-Aime, 03 Cr. 1145 (July 14, 2004); United States v.
John Mikelenich, 03 Cr. 950 (July 8, 2004). On the day before
Einstman's sentencing, however, I received a brief from the Government, fulsomely setting forth its position on the
Blakely issue. That position is that (1) the USSG are in fact
constitutional; (2) even if they are not, this Court and other
lower federal courts are required to continue to apply them until
the United States Supreme Court which had previously considered
the USSG to be constitutional, see United States v.
Mistretta, 488 U.S. 361 (1989) reverses field and expressly
declares them unconstitutional; and (3) in the event I cannot
concur with either point one or point two, then the Guidelines
must be deemed unconstitutional in their entirety, because those
aspects of the Guidelines that are constitutional cannot be
severed from those aspect that are unconstitutional.
I write to comment on the Government's arguments
Point (1) The Constitutionality of the USSG.
As to point one, I continue to believe along, apparently,
with several member of the United States Supreme Court, as well
as a number of my brothers and sisters in various district courts
that the necessary implication of Blakely is that the USSG as
they currently exist must be unconstitutional. I applaud the
Government's effort to salvage the Guidelines by noting that the
Commission-promulgated Federal Guidelines operate differently
from Washington State's legislatively-enacted guidelines, but I
find it too clever by half. In fact, there is very little
difference between the two systems, and what difference there is
does not bode well for the constitutionality of the USSG.
In Blakely, the Washington State Criminal Code set two
different statutory maximum sentences for the crime of which
defendant stood convicted ten years for a Class B felony and 53
months for the specific Class B felony to which Blakely pled:
second degree kidnapping involving domestic violence and use of a firearm.*fn1 The latter
"maximum" is actually described by the Washington State
Legislature as a "presumptive sentencing range," and the statute
authorized the sentencing judge to impose a longer sentence if he
found "substantial and compelling reasons justifying an
exceptional sentence," based on any relevant factors not taken
into account in setting the presumptive range. Some but not all
of these factors are listed in the statute. The judge in
Blakely, after holding a hearing, found that the defendant had
committed the crime with deliberate cruelty and imposed an
extraordinary sentence of 90 months. Obviously, 90 months is less
than 10 years. However, after Blakely it is clear that 53
months is the "relevant statutory maximum" for the defendant's
crime, and not merely a "presumptive" sentence. Indeed, that is
the essential change that Blakely worked in the law; the
Supreme Court majority ruled that the ". . . relevant `statutory
maximum' is not the maximum sentence a judge may impose after
finding additional facts, but the maximum he may impose without
any additional findings." In Blakely's case the domestic violence
and use of a gun were statutory elements that determined the
presumptive range, but the deliberate cruelty was the product of
an additional judicial fact-finding.
Under federal law, Congress has set statutory maxima, not for
classes of crimes, but for the crimes themselves. Thus,
conspiracy to commit mail fraud carries a statutory maximum
sentence of 5 years' imprisonment and 3 years' supervised
release, plus a fine capped at $250,000 or twice the amount of
gain to the defendant or loss to the victim, and restitution to
the victim (about which more later). Congress then delegated to a body it created, the United
States Sentencing Commission, the authority to identify those
factors that a judge must take into account in setting a
sentence, to weigh how relevant each such factor should be in a
sentencing decision, and to assign point values to those factors.
Under this scheme, a sentencing judge's conclusion that a
particular factor exists results in a certain number of points
(or levels), which in turn places the defendant on the vertical
axis of a sentencing grid. The horizontal axis evaluates the
defendant's recidivism. The intersection point on the grid
identifies what has become known as the "guideline" sentence. The
guideline sentence is the defendant's "presumptive" sentence
under the federal sentencing scheme.
Under both the federal and state sentencing schemes,
"presumptive" means just that the sentence is not automatic;
the presumption can be overcome. Unlike a Washington State judge,
a federal judge can depart either up or down from the presumptive
sentence, although we are not supposed to do that with any great
frequency, lest we incur the wrath of Congress by refusing to
allow the USSG to "fetter the discretion of sentencing judges."
Mistretta, supra., 488 U.S. at 396. Departure, in other
words, is supposed to be an extraordinary, not an ordinary,
event. That would appear to correspond to Washington State's
mandate that judges mete out an "extraordinary" sentence (one
that is higher than the presumptive sentence) only when they can
articulate "substantial and compelling reasons" for so doing.
Washington State judges, however, are free to consider any number
of factors in making such a finding, including factors that are
not listed in the authorizing statute. Federal judges, by
contrast, are forbidden to consider a long list of factors that
historically factored into sentencing decisions when they
determine the propriety of an upward or downward departure, and
may depart from the guideline range only when some factor or
combination of factors takes the defendant's situation "outside
the heartland" of the guidelines. The Government's principal rationale for why the federal system
differs from Washington State's that the two systems operate
differently is not persuasive. In fact, it flies in the face of
the obvious, since the similarities between the USSG and
Washington's Criminal Code are striking. Both systems have two
levels of "maximum" sentence (the top of the guideline or
presumptive range and the absolute, inviolable ceiling beyond
which no sentence can ever stray); both calculate the
guideline/presumptive range by taking into account factors that
everyone would agree enhance the seriousness of the underlying
crime; both allow judges to enhance the sentence above the
guideline-presumptive maximum (but never above the absolute,
inviolable ceiling) based on facts that are neither admitted by
the defendant nor proved beyond a reasonable doubt.
There is one critical difference between the sentencing
systems, and in thinking about the constitutionality of the
federal guidelines it is important to articulate exactly what
that difference is. To compare apples and apples, I will contrast
Blakely's situation with that of a hypothetical federal defendant
who has pled guilty to interstate kidnapping of his beaten and
traumatized ex-wife, a crime in which he brandished a gun.
As noted above, Blakely's presumptive 49-53 month sentence
under Washington State's system was derived by taking into
account both the underlying offense (kidnapping) and several
factors that defined his crime as particularly heinous (domestic
violence and using a firearm). In other words, Blakely's pled to
a kidnapping with a particular level of severity. That, without
more, subjected him to a 49-53 month "presumptive" sentence.
Under the statute, that sentence could be increased, in the
discretion of the sentencing judge, up to (but not above) ten
years (the real statutory maximum), based on any factor or
combination of factors that in the judge's opinion made the case
for a greater sentence "substantial and compelling." Absent that,
the judge was bound to sentence within the "presumptive" range. It was increasing Blakely's
sentence through application of a factor that the ...