Okai: doctrine of constitutional avoidance requires that federal sentencing statutes be construed to require proof beyond a reasonable doubt
Professor Berman gave us a heads up on a great decision from Judge Bataillon in the District of Nebraska holding that the doctrine of constitutional avoidance, as well as the reasonableness requirement of Booker, requires that contested aggravating facts at sentencing be resolved beyond a reasonable doubt. Mr. Okai pleaded guilty straight up to using counterfeit securities. The indictment did not charge relevant conduct beyond a single incident. The government (and the presentence report) used other conduct to increase the amount of loss. The defendant contested any loss beyond his admissions during and after the plea.
Judge Bataillon’s decision in Okai (2005 WL 2042301) provides a great outline of how to approach standard-of-proof issues after Booker. First, the court reviewed the importance of guidelines under the "reasonableness" review provided by the Booker remedial opinion. Second, the court noted the importance of agreements and stipulations in setting any guideline increases beyond enhancers that are charged in the indictment. Third, the court looked to the constitutional objections that survive Booker. This is the critical part of the analysis.
In footnotes 2 and 4, Judge Bataillon explains how the Booker opinion ruled only on the Sixth Amendment right to jury trial, not the Fifth Amendment’s requirement of proof beyond a reasonable doubt. The court then elaborated on the "surpassing importance" of the reasonable doubt standard’s protections and, based on the societal interest in great certainty, the critical distinction between who makes a determination resulting in greater punishment (judge or jury) and the standard by which that decision is made. In footnote 5, the court notes that post-Booker case law simply does not involve the Fifth Amendment issue. Relying on Schriro, Hankerson, and Ivan V., the court finds the reasonable doubt standard requires greater protection than the right to jury trial alone.
The court then recognizes the simple reality of everyday life in federal court: "Whether characterized as ‘elements’ or not, certain facts, such as drug quantity, scope of the operation, amount of loss, or injury are as important to the sentence as the general elements of a crime set out in the criminal code." Such facts are so important that the heightened certainty of the reasonable doubt standard should apply. But rather than making a constitutional ruling, the court, citing Clark v. Martinez, stated: "The principal of constitutional avoidance mandates that the federal sentencing statutes should be construed to avoid the difficult constitutional question of whether the imposition of a harsher sentence – whether characterized as a Guidelines sentence, a departure, or a deviance – violates due process when the greater punishment is based on facts found under a standard lower than proof beyond a reasonable doubt."
The court then coupled its statutory construction with a reasonableness analysis: "[W]hatever the constitutional limitation on the advisory sentencing scheme, the court finds that it is not ‘reasonable’ to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt." Given the government’s failure "to present any evidence with respect to the controverted facts," the court imposed sentence at the guideline range based only on the loss to which the defendant agreed.
This is a great opinion that provides judicial approval to the analysis defenders have been asserting from the time Booker came down. Congrats to AFPD Carlos Monzon and the Omaha FPD office. The evolution of the reasonable doubt issue has been chronicled in the following blogs (see especially the letter brief linked to Booker: reasonable doubt update):
Judge Bataillon’s decision in Okai (2005 WL 2042301) provides a great outline of how to approach standard-of-proof issues after Booker. First, the court reviewed the importance of guidelines under the "reasonableness" review provided by the Booker remedial opinion. Second, the court noted the importance of agreements and stipulations in setting any guideline increases beyond enhancers that are charged in the indictment. Third, the court looked to the constitutional objections that survive Booker. This is the critical part of the analysis.
In footnotes 2 and 4, Judge Bataillon explains how the Booker opinion ruled only on the Sixth Amendment right to jury trial, not the Fifth Amendment’s requirement of proof beyond a reasonable doubt. The court then elaborated on the "surpassing importance" of the reasonable doubt standard’s protections and, based on the societal interest in great certainty, the critical distinction between who makes a determination resulting in greater punishment (judge or jury) and the standard by which that decision is made. In footnote 5, the court notes that post-Booker case law simply does not involve the Fifth Amendment issue. Relying on Schriro, Hankerson, and Ivan V., the court finds the reasonable doubt standard requires greater protection than the right to jury trial alone.
The court then recognizes the simple reality of everyday life in federal court: "Whether characterized as ‘elements’ or not, certain facts, such as drug quantity, scope of the operation, amount of loss, or injury are as important to the sentence as the general elements of a crime set out in the criminal code." Such facts are so important that the heightened certainty of the reasonable doubt standard should apply. But rather than making a constitutional ruling, the court, citing Clark v. Martinez, stated: "The principal of constitutional avoidance mandates that the federal sentencing statutes should be construed to avoid the difficult constitutional question of whether the imposition of a harsher sentence – whether characterized as a Guidelines sentence, a departure, or a deviance – violates due process when the greater punishment is based on facts found under a standard lower than proof beyond a reasonable doubt."
The court then coupled its statutory construction with a reasonableness analysis: "[W]hatever the constitutional limitation on the advisory sentencing scheme, the court finds that it is not ‘reasonable’ to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt." Given the government’s failure "to present any evidence with respect to the controverted facts," the court imposed sentence at the guideline range based only on the loss to which the defendant agreed.
This is a great opinion that provides judicial approval to the analysis defenders have been asserting from the time Booker came down. Congrats to AFPD Carlos Monzon and the Omaha FPD office. The evolution of the reasonable doubt issue has been chronicled in the following blogs (see especially the letter brief linked to Booker: reasonable doubt update):
- Booker: reasonable doubt survives
- Booker: reasonable doubt update
- Huerta-Rodriguez: reasonable doubt required
- Judge Gertner on reasonable doubt
- Dupas: reasonable doubt redux
The Ninth Circuit just last week noted in Stewart: "Because we remand to the district court for resentencing, we do not reach Stewart's arguments...that the district court erred in enhancing his sentence based on facts the jury did not find beyond a reasonable doubt." The reasonable doubt issue is alive and well; we need to keep pushing this righteous issue on behalf of clients who are facing aggravated sentences based on controverted facts proved by a standard lower than proof beyond a reasonable doubt.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 8/29/2005 05:10:00 PM
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