United States District Court, S.D. New York
July 21, 2004.
UNITED STATES OF AMERICA,
ERIK MARRERO, Defendant.
The opinion of the court was delivered by: JED RAKOFF, District Judge
Still more about the Sentencing Guidelines.
Defendant Eric Marrero is a chronic drug addict and petty
thief, who was previously convicted in New York state court of
criminal possession of a loaded firearm (a felony). On March 11,
2004 he pleaded guilty to the one count indictment in this case,
charging him with being a felon in possession of another firearm,
to wit, a .32 caliber revolver. See plea transcript, 3/11/04.
The Court set a sentencing date of June 28, 2004, and a
Presentence Investigation Report was then prepared by the
Probation Office, which calculated the sentencing range under the
federal Sentencing Guidelines as 24 to 30 months imprisonment.
This calculation reflected, inter alia, an upward adjustment
for the obliteration of the firearm's serial number, an
allegation that Marrero had not admitted at his plea. See id.
Without the adjustment for the obliteration, the prescribed
sentencing range would have been 21 to 27 months. See
sentencing transcript, 7/19/04.
Shortly prior to Marrero's sentencing date, the Supreme Court
announced its decision in Blakely v. Washington,
124 S.Ct. 2531, 2004 U.S. LEXIS 4573 (June 24, 2004), in which the Court
held that the Sixth Amendment prohibited sentencing a defendant
above the legally prescribed maximum sentence based on a fact
that was neither admitted by the defendant nor found by a jury.
Id. In order to evaluate the applicability of Blakely to the
instant case, counsel for both parties then requested, and
received, an adjournment of sentence. After receiving further
submissions, the Court, on July 19, 2004, sentenced Marrero to 21
months in prison, see sentencing transcript, 7/19/04, and, in
the course of so doing, joined the growing number of courts that
have held the federal Sentencing Guidelines unconstitutional in
some or all respects. See, e.g., United States v. Booker,
03-4225, 2004 U.S. App. LEXIS 14223 (7th Cir. July 9, 2004);
United States v. Einstman, 04 Cr. 97, 2004 U.S. Dist. LEXIS
13166 (S.D.N.Y. July 14, 2004); United States v. Croxford,
02-CR-00302, 2004 U.S. Dist. LEXIS 12825 (D. Utah July 12, 2004);
but see United States v. Pineiro, 03-30437, 2004 U.S. App.
LEXIS 14259 (5th Cir. July 12, 2004) (guidelines constitutional).
This Opinion will briefly elaborate the reasons for that
First, although the Second Circuit, rather than ruling on
whether the Sentencing Guidelines are unconstitutional, has
sought expedited guidance from the Supreme Court, United States
v. Penaranda, 03-1055, 03-1062, 2004 U.S. App. LEXIS 14268 (2d
Cir. July 12, 2004), this Court, when confronted with the
sentencing in this case, did not believe it had the luxury of
waiting further for such guidance. Neither party to the instant
case had sought further adjournment of the sentence beyond July
19, 2004; and, even if they had, there are both constitutional
and practical limits on how long a district court may defer a
criminal sentence, especially where, as here, the defendant is
detained. See generally United States v. Bryce,
287 F.3d 249, 256 (2d Cir. 2002). Accordingly, the Court felt compelled to
proceed to sentence and, in so doing, reach the underlying legal
issue of the constitutionality of the Sentencing Guidelines.
Second, while the Government chose not to make any written
submission on the issue of the Guidelines' constitutionality, it
orally articulated at the July 19 sentence hearing its preferred
view that the Sentencing Guidelines remain constitutional because
they have previously withstood constitutional challenge and
because the Court in Blakely expressly stated that "[t]he
Federal Guidelines are not before us, and we express no opinion
on them." Blakely, 2004 U.S. LEXIS 4573, at *17 fn. 9. As
Deputy Attorney General Comey put it in his general directive to
federal prosecutors on July 2, 2004, "[t]he government's legal
argument . . . is that the lower federal courts are not free to
invalidate the Guidelines given the prior Supreme Court decisions
upholding their constitutionality, and that, on the merits, the
Guidelines are distinguishable from the system invalidated in
Blakely." Memorandum to All Federal Prosecutors, from James
Comey, Deputy Attorney General, regarding Departmental Positions
and Policies in Light of Blakely v. Washington (July 2, 2004).
But the fact that the Supreme Court has previously upheld the
constitutionality of the Sentencing Guidelines in cases
addressing challenges different from those presented by Blakely
in no way disempowers a district court from ruling upon their
constitutionality in a case raising a Blakely-based, Sixth
Amendment challenge. As Judge Cassell noted in Croxford,
supra, "While the Supreme Court has rejected other
constitutional challenges to the Federal Sentencing Guidelines,
it has never considered how the Sixth Amendment's right to a jury
trial applies to the Guidelines." United States v. Croxford,
2004 U.S. Dist. LEXIS 12825, at *4. See also United States v.
Booker, 2004 U.S. App. LEXIS, at *13.
As for the claim that the Guidelines are distinguishable from
the Washington State system invalidated in Blakely, the
Government itself, as amicus in Blakely, questioned "whether
those differences are constitutionally significant." Blakely,
2004 U.S. LEXIS 4573, at *17 n. 9.
More importantly, virtually every court that has compared the
two systems has concluded that the federal Guidelines are, if
anything, "more vulnerable to constitutional attack than the
Washington guidelines the [Supreme] Court invalidated [in
Blakely]." United States v. Croxford, 2004 U.S. Dist. 12825,
at *4; accord, e.g., United States v. Einstman, 2004 U.S.
Dist. LEXIS 13166, at *13; United States v. Shamblin, 03-00217,
2004 U.S. Dist. LEXIS 12288, at *24 (S.D.W.Va. June 30, 2004).
In seeking expedited guidance from the Supreme Court, the
Second Circuit mentioned only one principal respect in which the
federal Sentencing Guidelines differ from the Washington State
provisions found unconstitutional in Blakely, to wit, that the
latter involve statutory enhancements whereas the former are more
akin to administrative regulations. United States v. Penaranda,
2004 U.S. App. LEXIS 14268, at *17. But it is hard to see how
this makes a difference of constitutional significance, since, as
the Second Circuit also noted, the Sentencing Guidelines have
"`the force and effect of laws.'" Id. at *17.(quoting with
approval Justice Scalia's dissent in Mistretta v. United
States, 488 U.S. 361, 413 (1989)). And while the Sentencing
Guidelines have been technically viewed as emanating from the
Judicial Branch rather than from Congress, Mistretta, 488 U.S.
at 385-397,*fn1 this is irrelevant from the standpoint of
Blakely, which focuses on the manner in which the Constitution
confides to the jury certain prerogatives that no other body,
whether legislative, executive, or judicial in origin, can
override. Blakely, 2004 U.S. Dist. LEXIS 4573, at *18, *30-31.
It follows that, in this Court's view, the teachings of
Blakely apply in full force to the Sentencing Guidelines and
render unconstitutional any sentencing enhancement prescribed by
the Guidelines that is not (a) found by a jury beyond a
reasonable doubt, (b) admitted or stipulated by the defendant, as
in his plea allocution or in an agreement with the Government, or
(c) is otherwise binding upon the defendant as a matter of law,
as in the case of his prior criminal convictions. Apprendi v.
United States, 530 U.S. 466, 476 (2000). In this case, this
means that the Guidelines enhancement based on an obliteration of
the revolver's serial number, to which the defendant neither
admitted nor stipulated, cannot constitutionally be imposed.
Third, the Court does agree, however, with the Government's
"fallback" position to which defendant's counsel ultimately
agreed as well, see sentencing transcript, 7/19/04 that if
such sentencing enhancements are unconstitutional, the entire
Sentencing Guidelines must be set aside, since the offending
sections cannot meaningfully be severed from the whole. The
Guidelines, on their face, represent an intricate set of weights
and measures, of upward enhancements and downward adjustments,
that were intended to balance, however imperfectly, a host of
competing sentencing considerations. To accept the "downward"
aspects and ignore the "upward" aspects would be to frustrate the
will of Congress. See United States v. Einstman, 2004 U.S.
Dist. LEXIS 13166, at * 20-*22. Accordingly, the entire
Sentencing Guidelines must be set aside as unconstitutional.
Fourth, this means that, for now at least, the Court must
revert to the previous regime, by which the Court was called upon
to exercise broad but informed discretion to arrive at a sentence
no less than any statutory minimum (there is none in this case)
and no greater than any statutory maximum (which is here 10
years). "Informed" discretion, however, means taking account of
all relevant information and the Guidelines certainly are that,
representing, as they do, the Commission's attempt to arrive at a
fair sentencing balance of relevant factors. While many district
judges have chafed at the rigidity of the Guidelines that, in too
many cases, have caused judges to impose sentences that they
regard as artificial, unjust, or worse, it is likely that these
same judges would welcome the benefits to be derived from
consulting a set of non-binding guidelines that may help a court
to weigh relevant factors without commanding a particular result.
Thus, in this very case, the Court, as reflected in the
sentencing transcript, 7/19/04, took important account of the
factors and reasoning that would have resulted, if the Guidelines
applied, to a sentence of 24 months in this case. Ultimately, the
Court imposed a slightly more lenient sentence 21 months
chiefly because the Court gave greater weight than the Guidelines
would have permitted to the sympathetic, even pitiable features
of the defendant's background, such as his repeated but
unsuccessful attempts to rid himself of his recurrent heroin
addiction and his refusal, even in the throes of such addiction,
to become a drug dealer or to engage in theft except in moments
The Court is of the belief that, if the Sentencing Commission
were allowed to continue, not as a promulgator of laws, but as a
source of helpful guidance in the form of detailed but
non-binding Guidelines, the overwhelming majority of federal
judges would take meaningful account of such guidelines, and the
sentences then meted out, while being more flexible and more
attuned to the individual circumstances of each case, would as a
whole conform to the Commission's policy choices, avoid
unconscionable disparities, and, overall, be as just as any
system designed by mere mortals is likely to be.