Wednesday, January 24, 2007

Cunningham: support for Ninth Circuit rehearings on the ACCA and reasonable doubt

The Supreme Court opinion in Cunningham once again demonstrates that the Nation’s highest court is far ahead of the Circuits in protecting Fifth and Sixth Amendment rights. Justice Ginsburg provides some important support for our continuing struggle to persuade the courts that, under the Doctrine of Constitutional Avoidance, the silence in the Armed Career Criminal Act and federal sentencing statutes on the standard of proof should be filled by interpreting those statutes to require proof coextensive with the constitutional standard of proof beyond a reasonable doubt. Cunningham provides a big boost in two areas of current and future Ninth Circuit rehearings en banc.

In Cunningham, the Court addressed the California state sentencing system, which permits a sentence at the high end of a guideline based upon certain findings. The state supreme court construed the Supreme Court’s post-Apprendi case law to permit a high-end sentence upon proof of facts to a judge by a preponderance of the evidence. Justice Ginsburg provided the clear law: "[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence." And the traditional 5-4 majority for the post-Apprendi Sixth Amendment jurisprudence is now a 6-3 majority, with Chief Justice Roberts adding his vote.

The first area Cunningham will affect is the pending rehearing en banc in Grisel (blogged here), in which the Court will need to construe the pleading and proof requirements of the Armed Career Criminal Act. We have been arguing that, under the Supreme Court opinions in Haley and Shepard, the Doctrine of Constitutional Avoidance must be applied to any application or extension of Almendarez-Torres, the case finding that an immigration statutory enhancement did not need to be pleaded in the indictment. Cunningham provides a sharp focus on why the characteristics and sequence of ACCA prior convictions are facts that may well be constitutionally required to be pleaded in the indictment and proven beyond a reasonable doubt (as Fourth Circuit Chief Judge Wilkins found in dissent here) but at least raise a serious enough constitutional questions to require the same result through statutory construction.

In footnote 14, Justice Ginsburg puts a stake through the heart of the argument that facts concerning the offender should be treated differently from facts regarding the offense: "Apprendi itself, however, leaves no room for the bifurcated approach..." This footnote means that ACCA facts, such as the characteristics of the prior offenses and their sequence, should easily fall into the category of facts that must be proven in conformance with the Sixth Amendment. In the Grisel opening brief, as well as in the amicus support, the defendant presents the case for at least serious constitutional doubt on these questions, which implicates the Doctrine of Constitutional Avoidance. While still recognizing the limited exception for the fact of a prior conviction, Cunningham emphatically makes the point that these types of offender-oriented facts are entitled to the same Sixth Amendment protections as facts regarding the offense.

The second area involves a need for rehearing en banc rather than a petition that has already been granted. In three cases in the past two weeks, the Ninth Circuit, without any consideration of the Doctrine of Constitutional Avoidance, has claimed that precedent requires mere preponderance in support of guidelines enhancements, even as to acquitted conduct. In Lyons, the court amended an opinion to state without citation: "The argument that the district court should have imposed a 'beyond a reasonable doubt' standard is foreclosed by our case law." In Pike, the Court allowed a five-level guideline increase based only on proof by a preponderance, citing to a pre-Booker case (Riley) in which the defendant agreed that the preponderance standard applied. Most recently in Mercado, the court allowed enhancement of the guidelines based on acquitted conduct, with Judge Betty Fletcher dissenting based on a careful analyses of the constitutional issues.

In Mercado, neither majority nor dissent exercised the available option of avoiding the constitutional disagreement by resolving the case on statutory grounds. The majority simply relied on the Supreme Court opinion in Watts, which the Booker majority specifically found did not address the relevant constitutional issues, and the other Circuits' adherence to use of acquitted conduct to increase sentences. The latter point is especially unpersuasive: in the Sixth Amendment arena, not a single Circuit anticipated Apprendi or Blakely. Judge Fletcher fleshes out the historical bases for the Supreme Court's Sixth Amendment jurisprudence, which she finds unreconcilable with sentencing based on acquitted conduct.

These three cases should be reheard en banc, separately or together, to do what thus far the Ninth Circuit has not done: analyze the reasonable doubt requirement in the context of both the Supreme Court’s post-Apprendi jurisprudence and in light of the Doctrine of Constitutional Avoidance. From the time Booker came down, the residual Fifth Amendment reasonable doubt question has needed an answer, especially given the lack of statutory instruction on the burden of proof (briefed and blogged as summarized here).

Justice Ginsburg’s Cunningham opinion provides key support for the reasonable doubt standard. The phrase "sentence-elevating factfinding" is a great synonym for what routinely occurs in federal court regarding guideline facts "neither inherent in the jury’s verdict nor embraced by the defendant’s plea." Judge Ginsburg traces the history of the Court’s recent Sixth Amendment jurisprudence to the Jones case, which invoked the Doctrine of Constitutional Avoidance to construe the carjacking statute to require Fifth and Sixth Amendment rights regarding aggravating factors that increased the statutory maximum. The emphasis on Jones and constitutional avoidance is very helpful because most of the Jones analysis focuses on the Fifth Amendment and Winship, whereas Booker is strictly a Sixth Amendment case. The Fifth Amendment right to deprivation of liberty only based on facts proved beyond a reasonable doubt requires a different, and stricter level of compliance, as we know from the contrasting cases on retroactivity: "yes" on reasonable doubt (Ivan V. and Hankerson); "no" on judge rather than jury where the reasonable doubt right is intact (Summerlin).

While addressing the Sixth Amendment, Cunningham clearly expresses the constitutional norm that increased punishment should be predicated on facts proven beyond a reasonable doubt. This last point will likely be developed as the Court addresses the presumption of reasonableness in Rita. As set out in Guidelines Appeals: The Presumption of Reasonableness and Reasonable Doubt, 18 Fed. Sent. Rptr. 170 (Feb. 2006), the presumption of reasonableness itself is a powerful argument for the reasonable doubt standard as a matter of Fifth Amendment law, especially in light of the Supreme Court's law on presumptions in criminal cases. And even without a presumption, if a sentence would be unreasonable, even though within a statutory maximum, without the higher guideline range as a starting point, doesn’t that exactly match a "sentence-elevating factfinding"? Third Circuit Judge Sloviter, in a dissenting opinion, has already found a Fifth Amendment violation based on draconian results from findings by a mere preponderance (as blogged here).

The Grisel en banc argument is set for March 22, 2007. We are hoping petitions for rehearing en banc will be filed in each of the three reasonable doubt cases. Meanwhile, both at the trial level and on appeal, we need to carefully preserve our clients’ rights in ACCA cases and in all sentencings based on controverted facts that increase the guideline range, under both the Constitution and under the relevant statutes as construed using the Doctrine of Constitutional Avoidance.

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


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