Wednesday, June 07, 2006

Staten: missed issues on ex post facto and burden of proof at sentencing

Yesterday, the Third Circuit split in Grier on the burden of proof at sentencing, with a strong dissent by Judge Sloviter on the right to proof beyond a reasonable doubt for criminal conduct resulting in enhanced sentencing. As blogged here, the Grier court missed the application of the Doctrine of Constitutional Avoidance to require proof beyond a reasonable doubt as a matter of statutory and guideline construction. Professor Doug Berman noted here that the Grier court also gratuitously backed away from the Kikumura case’s requirement of clear and convincing evidence to establish facts resulting in a disproportionately greater sentence.

Today, the Ninth Circuit logs in with an important sentencing case with some good language but two glaring missed issues. In Staten, the defendant pleaded guilty to conspiracy to manufacture a small quantity of methamphetamine. The presentence report called for a 15 level increase for creation of a substantial risk of harm to human life or the environment under U.S.S.G. § 2D1.1(c)(14). At the post-Booker sentencing hearing, competing experts disagreed regarding the applicability of the enhancement. The defendant contended that the pre-Booker crime foreclosed application of harsher sentencing after Booker under the Ex Post Facto Clause, and that the enhancement had to be established by proof beyond a reasonable doubt. The trial court rejected both claims.

First, the good news: Judge Berzon found that the trial court failed to follow Guideline commentary requiring certain findings before the enhancement could be imposed. Rejecting the generic dangers associated with manufacture, the court found that "Note 20(A) requires analysis of whether, and the extent to which, the specified considerations pertain on the facts of the particular case." The court also agreed with the government's concession that the disproportionate impact required more than proof by a preponderance of the evidence: "[T]he clear and convincing standard still obtains for an enhancement with an extremely disproportionate effect, even though the enhancement now results in the calculation of an advisory rather than a mandatory Guideline sentence."

Now the bad news: major missed issues in the ex post facto and burden of proof analyses.

Instead of addressing the Ex Post Facto Clause, the retroactive application of harsher Guidelines is analyzed as a matter of notice under the Due Process Clause. As blogged here and here, the sui generis construction of the statute in Booker directly implicates legislative action, rendering due process analysis unnecessary. Justice Breyer’s Booker remedial opinion construed the Sentencing Reform Act to have a built in contingency that was triggered by the Booker merits opinion: if Guideline enhancements were found to implicate Sixth Amendment protections, then Congress intended that the mandatory parts of the statute be severed. Once the triggering Booker merits opinion issued, the ex post facto analysis became the same as with the issuance of harsher provisions in a new Guideline manual. The Dupas case, which Judge Berzon found to be controlling, addressed only the due process notice issue, not harsher legislative action prohibited by the Ex Post Facto Clause.

The second missed issue is the application of the Doctrine of Constitutional Avoidance to fill statutory silence on the burden of proof at sentencing. As blogged yesterday here and by Professor Berman here, the reasonable doubt standard should apply where a sentence is increased based on facts not admitted or necessarily proved at trial. The Ninth Circuit has been careful not to take a position on the issue in the absence of full briefing. For example, in footnote 14 of Stewart, the court stated, "Because we remand to the district court for re-sentencing, we do not reach Stewart's arguments...that the district court erred in enhancing his sentence based on facts not found by a jury beyond a reasonable doubt." Similarly, the Ameline panel opinion (400 F3d 646), affirmed en banc, reserved the burden of proof question in footnote 7: "Whether the Booker majority remedial opinion affects the standard of proof articulated in these cases [involving preponderance, clear and convincing, and reasonable doubt standards] is an issue we need not address at this time."

Rather than address the question as one of first impression, the court cited favorably dicta in Dare, a case involving a mandatory minimum, not an increase of the statutory maximum, for the preponderance standard. And Dare cites back to Howard, a case the Ameline footnote specifically noted as being of unresolved precedential effect. The Staten court’s exegesis on burden of proof completely fails to address the Fifth Amendment's reasonable doubt requirement as separate from both the Booker Sixth Amendment analysis and the pre-Booker procedural due process balancing test. As set out in Judge Sloviter’s dissent in Grier and the district court opinions of Judges Gertner and Bataillon, the reasonable doubt standard provides the most fundamental protection against wrongful increased incarceration. Because the serious constitutional issue is not addressed, the Staten court failed to take the next step required by overwhelming Supreme Court authority: the court must apply the Doctrine of Constitutional Avoidance to construe the sentencing statutes and guidelines, which are resoundingly silent on the burden of proof, to require proof beyond a reasonable doubt to enhance a sentence based on controverted facts.

The only reason a Guideline sentence enhanced by 15 levels could ever be deemed reasonable is if the predicate facts for the enhancement are true. If the judge is not convinced beyond a reasonable doubt that the facts are true, the defendant should not spend a single extra day in prison based on those facts. Under principles fundamental to the Anglo-American conception of justice, no additional punishment is permissible because even facts proved by clear and convincing evidence, but upon which a reasonable doubt remains, are insufficiently reliable to deprive a human of freedom.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.


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