326 F.Supp.2d 176 (2004) | Cited 5 times | D. Maine | July 26, 2004


At a sentencing hearing held in this case today, the Courtsentenced Defendant Nicholas Zompa in light of the recentdecision in Blakely v. Washington, ___ U.S. ___,124 S.Ct. 2531 (2004). Applying Blakely to the facts presented, the Courtruled that it could not enhance the Defendant's offense levelunder the United States Sentencing Guidelines ("USSG" or theGuidelines) by using the preponderance of the evidence standardto make a judicial finding of fact as to drug quantity. In lightof the flurry of judicial activity surrounding the Blakelydecision and the Government's suggestion that it may well appealthe sentence in this case, the Court offers the following briefwritten explanation of its interpretation and application ofBlakely v. Washington to supplement the record created attoday's sentencing hearing.

Although the Government has argued in its sentencing memorandumthat Blakely v. Washington does not apply to the Guidelines,the Court disagrees. As the Seventh Circuit recently held inBooker and the Ninth Circuit held just last week in Amelineand as Judge Hornby pronounced in United States v. Fanfan, thisCourt also holds that the reasoning of Blakely applies to theGuidelines. See United States v. Booker, No. 03-4225, 2004 WL1535858 at *2-*6 (7th Cir. July 9, 2004); United States v.Ameline, No. 02-30326, 2004 WL 1635808 at *6-*8 (9th Cir. July 21, 2004);United States v. Fanfan, No. 03-47-P-H (D. Me. June 28, 2004),transcript of sentencing hearing available athttp://www.med.uscourts.gov/Site/opinions/hornby/2004/.

In reaching this holding, this Court has taken due notice ofthe pronouncement of the Supreme Court back in 1803 in the wellknown case of Marbury v. Madison, 5 U.S. 137 (1803). InMarbury, the Court explained: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.Id. at 177-178. It is in light of this fundamental principlethat this Court must resolve the interaction between Blakely'sinterpretation of the Sixth Amendment and the SentencingGuidelines based on the facts presented by the Defendant who nowstands before the Court.

In light of the Supreme Court's decision in Blakely and thecircumstances presented by this case, the Court finds that anyenhancement of Defendant's base offense level based on my findingas to a particular drug quantity would violate the Defendant'sright to be sentenced based upon only those facts that he hasadmitted or that the Government has proven beyond a reasonabledoubt. The majority opinion in Blakely makes clear that my autho rity to sentence any defendant "deriveswholly from the jury's verdict" or, in the case of a plea,derives wholely from the facts that the defendant admits inconjunction with pleading guilty. Blakely, 124 S.Ct. at 2539.Thus, per the Supreme Court's announcement in Blakely, theSixth Amendment does not allow this Court to enhance thisDefendant's sentencing range based on a judicial finding of factsby a preponderance of the evidence.

The Court must next address the Government's "severabilityargument." The Government contends that the Guidelines are notseverable and that if this Court is unwilling or unable to applyenhancements as a result of Blakely, the entire USSG must fall.In his sentencing memorandum, Defendant argues that theGuidelines are, in fact, severable since the only portion of theguidelines that cannot survive Blakely is USSG Section 6A1.3and more specifically, the Commentary for that section in whichthe Sentencing Commission endorses the use of a preponderance ofthe evidence standard to resolve disputed factors.

This Court does not believe that the Blakely decision rendersthe USSG completely unconstitutional. Rather, the Court concludesthat the unconstitutional aspects of the Guidelines (i.e.judicial fact finding utilizing a preponderance of the evidencestandard as a procedural vehicle for sentence enhancement) can besevered from the rest of the Guidelines. With theseunconstitutional portions excised, the Guidelines can still servetheir intended purpose of promoting honesty, uniformity andproportionality in sentencing. See Ameline, 2004 WL at *11.Thus, while acknowledging that the courts have reached differentconclusions on this difficult question of the severability of theUSSG, this Court, like the Ninth Circuit, believes that "[r]ather than undermining Congress' objectives, severancefacilitates them." Id. Therefore, in the absence of a decisionclearly pronouncing the USSG unconstitutional, the Court believesit is obliged to continue applying the Guidelines in accordancewith the Sixth Amendment limits pronounced by the Supreme Courtin Blakely. Thus, to the extent that the Government includesdrug quantity or any other sentencing guideline enhancements inan indictment and offers factual proof that supports thoseenhancements beyond a reasonable doubt, the Court remainsgenerally bound by the sentencing guideline range that resultsfrom inclusion of those enhancements.

In this case, the drug quantity enhancement was not included inthe Information to which the Defendant pled guilty, nor did theDefendant admit to distributing any particular amount of cocainebase. Multiple constitutional principles, including Due Processand Double Jeopardy, may have prevented the Government from nowseeking to prove beyond a reasonable doubt that this Defendantcan be held accountable for distributing 15.3 grams of cocainebase. In any event, the Government has not asked this Court toempanel a "sentencing jury" or suggested that they desire anopportunity to prove the drug quantity included in thepresentence report beyond a reasonable doubt.

This Court has sentenced the Defendant in accordance with theabove ruling and based upon the sentencing guideline range thatis dictated by the facts admitted by the Defendant in conjunctionwith his guilty plea.

The Government's Sentencing Memorandum also included a requestthat this Court state alternate sentences on the record andthereby rule what Mr. Zompa's sentence would have been "under theGuidelines without regard to Blakely" and also rule what sentenceit would impose "if the Court has discretion to impose sentencewithin the statutory range" (Gov't Sentencing Mem. at 19.) The Courtcertainly appreciates that such a statement of alternativesentence might be useful if the Supreme Court ultimatelyrules either that Blakely has no effect on the Guidelines orthat the Guidelines are unconstitutional. However, this Court isnot inclined — nor does it believe it is allowed — to renderhypothetical sentences. Rather, the Court believes that any othersentence it might render in this case is best determined at alater date when the Court can fully consider any nuances ofsubsequent appellate decisions that might require resentencing.As with deciding the question posed by any case or controversy, asentence in a criminal case is best rendered in light of the"clear concreteness provided when a question emerges preciselyframed and necessary for decision from a clash of adversaryargument exploring every aspect of a multifaceted situationembracing conflicting and demanding interests." United States v.Fruehauf, 365 U.S. 146, 157 (1961). Thus, the Court will DENYthe Government's request for statement of alternative sentences.

Based on the presentence report and the fact that Defendant didnot object to the contents of that report, the Court has statedon the record that it finds by a preponderance of the evidencethat Mr. Zompa could be held accountable for distribution of 15.3grams of cocaine base. However, as explained above and at thesentencing hearing, the Court ultimately concludes that thisfactual finding cannot affect the sentence imposed upon Mr. Zompain light of Blakely v. Washington.


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