Sunday, October 02, 2005

Case o' the Week: Ninth Applies Booker to Upward Priors Departure in Kortgaard

All sorts of things grow in Hawaii's beautiful Volcanos National Park (left), including marijuana. Defendant Kortgaard saw his sentence almost double after he was convicted for growing pot in this national park, based on an upward departure for his priors. Writing for the Ninth, Judge Brunetti reverses in United States v. Kortgaard, __ F.3d __, Slip. Op. 13573, (9th Cir. Sept. 21, 2005), available here. In a thoughtful opinion, Judge Brunetti refuses to allow the Almendarez-Torres exception for priors to swallow the guideline provision for upward depatures, and applies Apprendi/Booker to the departure. A case with much broader ramifications beyond its guideline narrow issues.

Players: Win for David Klein of Hawai’i, techie guru and long-term CJA heavy-hitter.

Facts: Kortgaard was convicted of a marijuana offense, and the federal district court doubled his exposure by departing upwards based on the understatement of prior convictions – then sentenced him to the high end of the adjusted range. Id. at 13577. During the appeal, Blakely and Booker were decided. On appeal, the government argued that the upward departure based on the understatement of prior convictions related to priors, and therefore fell within the Almendarez-Torres exception to Apprendi. See id. at 13583.

Issue(s): “Whether, or how, Blakely affects upward departures [for understatement of criminal history] under [USSG] § 4A1.3.” Id. at 13578.

Held: “We now confront that issue in light of Booker and hold that upward departure decisions under § 4A1.3 are factual in nature; therefore, such decisions are not within Apprendi’s exception for the fact of a prior conviction and are subject to the restrictions of Booker.” Id. “The mere fact that the sentencing judge considered prior convictions in departing upward does not bring this case within the exception for the ‘fact of a prior conviction’ that the Court carved out in Apprendi . . . .” Id. at 13581. “We also find that the ultimate § 4A1.3 determinations of the ‘seriousness’ of a defendant’s prior misconduct and a defendant’s ‘likelihood’ of recidivism are factual matters.” Id. at 13583.

Of Note: In some interesting language, author Judge Brunetti emphasizes the narrow scope of the Almendarez-Torres exception. “[T]he prior conviction exception should remain a narrow exception to Apprendi.” Id. at 13587 (quotations and citation omitted). The Ninth noticed the Supreme Court’s ambivalence to this exception: “the Court also questioned the continuing validity of Almendarez-Torres regarding the consideration of recidivism in sentencing, [and] construed it as representing at best an exceptional departure from the historic practice that we have described . . . .” Id. (quotations and citation omitted). The Ninth emphasized, “We are faced here with another request to extend or broadly construe Apprendi’s exception in order to include within it issues that have not been submitted to a jury. We once again decline to do so and continue to treat the exception as a narrow exception to the general rule.” Id. (quotations and citation omitted). The Ninth – like the Supreme Court – is signaling continued discomfort with the Almendarez-Torres rule: enough discomfort that it would be prudent to continue to preserve the Apprendi objection.

How to Use: The core holding of Kortgaard doesn’t get the defense far in most cases: a district court now can upward depart under advisory guidelines, and the test will simply be “reasonableness.” (Kortgaard’s case was remanded for resentencing – it will be interesting to see what he receives the second time around). The Court’s narrow reading of the Almendarez-Torres exception, however, provides useful language that can be used in other Apprendi/prior contexts. As noted above, in contested cases it makes sense to preserve the Apprendi exception to the use of unproved priors . . . no one knows how C.J. Roberts and the second new Justice will view Almendarez-Torres. (Although there are some grim guesses about several of the names being batted around).

For Further Reading: The Kortgaard case – and its broad discussion of Almendarez-Torres – also caught the eye of Professor Berman. A thoughtful discussion of the broader ramifications of the decision can be found here.

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


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