Case o' The Week: Ninth Doesn't Take the Dare, Won't Take on Harris after Booker

(Almost) everyone hates mandatory minimums; from Justice Breyer to Families Against Mandatory Minimums (see logo left, web site link below). Despite judicial disinchantment with mand-mins, the Ninth passes on a chance to take on these sentencing schemes in United States v. Dare, __ F.3d __, Slip. Op. at 13621. (9th Cir. Sept. 23, 2005), available here. Relative newcomer Judge Bea quickly shows his judicial independence with a dissent that would find Blakely and Booker changed the analysis so dramatically that Harris's rule on mandatory minimums is no longer good law.

Players: Hard-fought case by Michael Donahoe of the Montana Federal Public Defender.

Facts: Defendant Dare got a ten year mandatory-minimum in a § 924(c) case. Id. at 13622. He challenged, on Apprendi grounds, the district court’s preponderance findings that he had discharged a gun (which kicks the mand-min up to 10). Id. Dare was drunk when a shotgun shot after a pot transaction was fired; the court conceded that it could not find “discharge” under a clear and convincing standard, but was obligated to do so under the preponderance standard. Id. at 13627.

Issue(s): 1. “Dare argues that he was sentenced in violation of the Sixth Amendment constitutional protections articulated in Apprendi, then in Blakely, and most recently in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005).” Id. at 13628. 2. [After Booker, must there be higher standards of proof at sentencing – particularly when the mandatory minimum creates a dramatically higher sentence?]

Held: 1. “Dare argues that the constitutional analysis in Harris was effectively overruled by the plurality in Booker, ___ U.S. ___, 125 S. Ct. at 756. We agree that Harris is difficult to reconcile with the Supreme Court’s recent Sixth Amendment jurisprudence, but Harris has not been overruled.” Id. at 13633.

2. To date, we have applied the “disproportionate impact” test only in the case of federal guideline sentencing enhancements. . . The enhancements under the formerly mandatory federal guidelines increased the defendant’s possible maximum sentence. . . This case, by contrast, involves only a statutory mandatory minimum sentence. The judge’s findings did not expose Dare to a higher maximum statutory sentence, which, under Harrisand the now advisory guidelines, is life imprisonment based upon the allegations in the indictment. . . . Therefore, under Harris, due process concerns do not require that a higher standard of proof be satisfied.” Id. at 13634-35.

Of Note: Relative newcomer Judge Bea calls the Booker revolution for what it is, and explains why Harris is no longer good law in a compelling dissent. See id. at 13637. He starts his dissent with a clear indictment of the majority position: “Harris v. United States, 536 U.S. 545 (2002), is no longer good law in cases where a defendant receives a sentence, based on facts found by a judge other than a prior conviction, that is higher than the maximum sentence the judge could have imposed based solely on facts either admitted by the defendant or found by a jury beyond a reasonable doubt.” Id. Judge Bea then goes through a detailed analysis of why Harris did not survive Blakely and Booker, and explains why a preponderance standard no longer suffices. Bea’s prescient dissent deserves citation in the Supreme Court decision that will ultimately, explicitly, overrule Harris (one hopes).

How to Use: Defense counsel should raise all of the Dare challenges in any mandatory minimum case. Reading the opinion, one is impressed with how unimpressed even the majority is with the continued viability of Harris after Blakely and Booker. As Judge Bea observed, district court judge Gertner has already held that Harris did not survive Blakely-Booker. The Supreme Court should take this issue up someday; counsel will have wanted to preserve the challenge for later habeas attacks.

For Further Reading: Families Against Mandatory Minimums has been one of the most vocal critics of these harsh sentencing schemes. For a good general overview of mandatory minimum litigation, and for many useful links on mand-min litigation, visit the FAMM site here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org