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July 14, 2004.

PAUL G. EINSTMAN, Defendant.

The opinion of the court was delivered by: COLLEEN McMAHON, District Judge


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 issues.

  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 ...

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