Booker: Reasonable doubt for supervised release

San Diego AFPD Steve Hubachek has a creative and, ultimately, convincing argument that Apprendi requires a reasonable doubt finding for supervised violations. Here is the summary of his argument from his appellate brief (available by e-mailing Hubachek or Steve Kalar).

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The Supreme Court's decision in Booker contains two primary holdings: first, that the Apprendi line of cases applies to the Sentencing Reform Act ("SRA"), and second, that the remedy for the constitutional defects in the process by which sentences are imposed can be cured by severing two provisions from the SRA, 18 U.S.C. § 3553(b)(1), which made the Sentencing Guidelines mandatory, and 18 U.S.C. § 3742(e), which set forth standards of review on appeals from sentencing decisions under the mandatory regime. In the latter holding, the so-called remedial majority rejected the notion that the constitutional defects in the SRA could be cured by recasting the Guideline system as one in which defendants enjoyed the rights guaranteed by the Apprendi line of cases -- i.e., presentation to the grand jury, proof beyond a reasonable doubt and jury trial -- as contrary to Congressional intent. The remedial majority was not required to strike down the SRA, however, because it contained an alternative sentencing regime set forth in 18 U.S.C. § 3553(a). The remedial majority held that sentencing pursuant to that Congressionally created scheme was both consistent with Congressional intent and the proscription of judicial legislation.

Neither of the two cases addressed in the Booker opinion involved issues concerning the imposition or revocation of supervised release. Even so, Booker is dispositive of Mr. Huerta's appeal, and requires that his sentence be reversed. That is so for two reasons. First, the Apprendi line of cases is equally applicable to the supervised release regime because imprisonment for a supervised release violation necessarily requires a finding of a fact not considered by the trial jury: the alleged violation. Second, the remedial majority's holding that super-imposition of Apprendi protections over the SRA is not consistent with Congressional intent is even more compelling in the context of supervised release where the statutory scheme explicitly eschews Apprendi protections such as presentation to a grand jury, proof beyond a reasonable doubt, and right to a jury trial . See 18 U.S.C. § 3583(e)(3) ("the court" makes findings "by a preponderance of the evidence"); Fed. R. Crim. P. 32.1(b)(1) (right to a preliminary hearing, not presentation to a grand jury), (b)(2) (revocation hearing before "the court").

Under the remedial majority's reasoning, section 3583(e)(3) and Rule 32.1(b) must be stricken. And, unlike the situation posed by the alternative processes created by sections 3553(a) and (b), there is no alternative legislation in place to permit revocation hearings to go forward. Because United States v. Jackson, 390 U.S. 570 (1968), prohibits this Court from implementing a new system of its own, section 3583(e)(3) cannot be constitutionally implemented, and must be struck down.

Neither Booker's broad statement that supervised release is constitutional nor the specific issues raised in Mr. Huerta Pimentel's Opening Brief preclude this Court from considering the issues raised in the instant brief. Supervised release revocation was not at issue in Booker, and therefore any dicta on that issue is not binding. See Webster v. Fall, 266 U.S. 507, 512 (1925). Nor is there any prejudice to the government in raising these issues now, because they are purely issues of law. See United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1248 n.4 (9th Cir. 2003).

AFPD Steve Hubachek, San Diego Community Defender