Protection for Defendants in the Pipeline: Due Process Limits on the Retroactive Application of the Booker Rule

• Author: Katherine M. Gross
• Position: J.D. Candidate, The University of Iowa College of Law
• Pages: 07

Katherine M. Gross: J.D. Candidate, The University of Iowa College of Law, 2006; B.A., Northwestern University, 2002. I would like to thank Professor Stephanos Bibas for his ideas and guidance throughout this process. I would also like to thank my editors, Jill Wieber and Kristin Flood, for all of their hard work, and my friends and family for their support.

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I Introduction

Assume a defendant was convicted for possession with intent to distribute at least fifty grams of cocaine base.¹ Under the mandatory Federal Sentencing Guidelines in effect when the defendant committed his crime, the defendant was subject to a sentencing range between seventeen and twenty-two years.² However, before the defendant was sentenced, the Supreme Court held that the Sentencing Guidelines were merely advisory. Because of the Court's decision, the defendant is now at the mercy of the sentencing judge. In the new discretionary system, of which the defendant had no fair warning, the sentencing judge is free to sentence the defendant to a term higher than the twenty-two-year maximum.

The Constitution protects defendants from retroactive judicial changes in the law through the Due Process Clause.³ To violate due process, the new rule must first fit within the scope of the Ex Post Facto Clause.⁴ The rule must be one that is applied retroactively, it must disadvantage the defendant, and it must be substantive.⁵ For new judicial rules, the ex post facto doctrine as applied through the Due Process Clause also requires the rule to be "unexpected and indefensible."⁶

In United States v. Booker,⁷ the Court held that the Federal Guidelines, as written, violated defendants' Sixth Amendment right to a jury trial.⁸ The Court found the Guidelines unconstitutional because judges were permitted to increase defendants' sentences based on facts that were found by the sentencing judge by a preponderance of the evidence,⁹ and not by a jury beyond a reasonable doubt. To remedy the constitutional defect in the Sentencing Act of 1984, the Court struck down the portion of the Act that made the Guidelines mandatory.¹⁰ This Note focuses on the ex post facto Page 352 issues that could arise if judges apply the remedy retroactively on direct review¹¹ and give higher sentences than the mandatory Guidelines allowed to defendants whose criminal acts occurred prior to the Booker decision.¹²

Part II.A of this Note will discuss the Federal Sentencing Guidelines, why they were established, and how they bound sentencing judges. In Part II.B, this Note will trace the line of cases that led to the Booker decision. Part II.C will discuss the ex post facto doctrine and discuss how it applies to judicial decisions through the Due Process Clause. In Part III, this Note will apply the ex post facto analysis to the Booker decision and will conclude that any retroactive application of the advisory Guidelines that disadvantages defendants is a violation of the Due Process Clause.

II Background

A The Shift From A Discretionary Sentencing Scheme To A Mandatory Guidelines System

Prior to 1984, the federal sentencing system was discretionary.¹³ In the discretionary system, "[s]entencing judges, in conjunction with parole boards, had virtually unfettered discretion to sentence defendants to prison terms falling anywhere within the statutory range, including . . . no jail sentence at all."¹⁴ Judicial discretion "resulted in severe disparities in sentences received and served by defendants committing the same offense and having similar criminal histories."¹⁵ These disparities did not reflect differences in real conduct between defendants convicted of the same Page 353 statutory offense.¹⁶ Instead, the disparities "often were correlated with constitutionally suspect variables such as race."¹⁷

The Sentencing Reform Act of 1984 was a bipartisan reaction to the flaws in the previous purely discretionary sentencing system.¹⁸ The Act established the United States Sentencing Commission¹⁹ and instructed the Commission to create guidelines to "channel the discretion of sentencing judges."²⁰ The Commission was to determine the range of average sentences under the old system²¹ and use the ranges to develop binding guidelines.

Congress specifically made the Federal Guidelines mandatory.²² The statute mandating use of the guidelines states: "The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission."²³ Additionally, the judge is to Page 354 sentence the defendant according to the following purposes of the statute:²⁴"honesty," "uniformity," and "proportionality in sentencing."²⁵

Under the Guidelines system, the judge first determines the appropriate guideline applicable to the "offense of conviction" and the offender's "base offense level."²⁶ The judge then adds or subtracts levels based on "specific offense characteristics" and makes upward or downward "adjustments" as necessary.²⁷ After determining whether he should decrease the offense level if the defendant took responsibility for the crime,²⁸ and after calculating the defendant's criminal history,²⁹ the judge consults a Sentencing Table that "sets forth the range of punishment for the defendant."³⁰

B The Sixth Amendment Challenge To The Guidelines

1. The Sixth Amendment Protects Defendants' Right to Have a Jury Find Facts Beyond a Reasonable Doubt

The United States Constitution requires "that guilt of a criminal charge be established by proof beyond a reasonable doubt."³¹ The defendant has Page 355 "'the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.'"³² The reasonable doubt standard reduces the risk of factual error in convictions and "provides concrete substance for the presumption of innocence."³³ Implicit in this constitutional right is the "right to have the jury find the existence of 'any particular fact' that the law makes essential to [the defendant's] punishment."³⁴ In sentencing proceedings, this right is implicated "whenever a judge seeks to impose a sentence that is not solely based on 'facts found by the jury or admitted by the defendant.'"³⁵ The Sixth Amendment becomes an issue because the Guidelines allow the sentencing judge to make upward or downward departures from the sentencing range based on facts that the jury has not found beyond a reasonable doubt.³⁶

2. Apprendi's Initial Threat to the Guidelines System

The Supreme Court first shook up the sentencing community in Apprendi v. New Jersey.³⁷ In Apprendi, the Court struck down New Jersey's hate crime statute.³⁸ The statute required an enhanced sentence if the judge found by a preponderance of the evidence that the defendant committed Page 356 the crime with a purpose to intimidate a person or group because of race.³⁹The Court held that the legislature could create a statutory range that gives the judge some discretion in sentencing.⁴⁰ However, "any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt."⁴¹ In this case, the Court's holding meant that in order for the New Jersey statute to be constitutional, a jury would have to find intimidation beyond a reasonable doubt.

The Court in Apprendi noted that a "scheme that keeps from the jury facts that 'expos[e] [defendants] to greater or additional punishment,'" is suspect on Sixth Amendment grounds.⁴² The holding was the initial threat to the mandatory Federal Sentencing Guidelines, which allowed the sentencing judge to increase a defendant's sentence beyond the maximum prescribed by statute based on facts only proved by a preponderance of the evidence.⁴³

3. Blakely Foreshadows the Downfall of the Mandatory Guidelines

Apprendi did not have the impact many commentators believed that it would have, and many thought the Guidelines were safe.⁴⁴ However, five years later, the Blakely Court extended the Apprendi rule to "appl[y] to any finding of fact that is required by law in order to increase a sentence beyond what it would otherwise be."⁴⁵ Page 357

Ralph Blakely, Jr. pled guilty to "second-degree kidnapping involving domestic violence and use of a firearm."⁴⁶ With the facts admitted in his plea, the State could impose a standard maximum sentence of fifty-three months.⁴⁷ However, section 9.94A.120(2) of the Washington Code allowed a judge to impose a sentence exceeding that range "if he finds 'substantial and compelling reasons justifying an exceptional sentence.'"⁴⁸ The Act lists aggravating factors that would "justify such a departure."⁴⁹ The sentencing judge in...