Dan Nichols v. Jack McCormick Warden

trоactivity). Temple University v. Accord guard the by to which means a rational 126, (3d States, F.2d 134-35 United government reimbursing the by fisc public denied, Cir.1985), cert. pros- investigative and heavy burden for (1986) (same). ferreting out tax to costs incident ecutorial Here, presented with a case are not we F.2d Karpa, 909 also underpayment. See in accordance individual which an acted Min- 788; Usery v. Turner Elkhorn cf. only the time the law as it stood at with 1, 18, Co., 428 U.S. ing instead, penalty; subjected be later to (1976) imposition of (“[T]he L.Ed.2d penalties, subjected to the increased those effects of employers] liability [on Licaris, they at the time that like the knew as a past justified in the bred disabilities they were not act filed their returns of the spread the costs measure to rational with the law and could be ing in accordance have those who disabilities to employees’ They fine. also knew that subjected to a labor.”). of their the fruits profited from actions would force their unlawful retro- addition, imposition of costs in to incur considerable government public revenue actively benefits also pros and investigation with the connection whom taxpayers with encouraging those these cir of their offense. ecution Under previous no contact has made the I.R.S. cumstances, imposition not we do find their that understate tax returns amend penalty unduly “harsh and increased the I.R.S. will waive so that income C.I.R., 862 v. oppressive.” DeMartino Cf. penalty. Cir.1988) (2d (upholding retro F.2d applying un application of statute active test the alternative Phrased terms sham transactions derpayment penalty to find retroactivity, we do assessing not for unconstitutionally oppres harsh as imposed penalty here of the application sive). trans- oppressive as to “so harsh and AFFIRMED. limitation.” Welch constitutional gress the 126. 59 S.Ct. at 305 U.S. Henry, raises retroactivity four-year period of concern; however, we do some cause this, itself, is sufficient

not believe oppressive” test. “harsh and

to meet the Circuit, by the stated Second

As in the ‘harsh nothing intrinsic

there is ‘arbi- ... or oppressive’ test NICHOLS, Petitioner-Appellant, and Dan re- irrational’ test ... trary and con- mark as the quires one-year bench Warden, McCORMICK, Jack retroactivity. limit To stitutional Respondent-Appellee. tests, re- of those contrary, the nature 90-35416. No. ... the court each case quiring that ‘[i]n [legislation] of the consider nature Appeаls, Court of States United laid,’ in which it is and circumstances Ninth Circuit. Welch, 59 S.Ct. at 8, 1991. Oct. period length of the suggests that the con- should retroactively affected Helena, Mont., peti- Holton, Wendy sig- merely a factor—albeit sidered tioner-appellant. the overall assess- nificant factor—in Gen., Hel- Baker, Atty. Asst. S. Elizabeth legis- constitutionality of ment of ena, Mont., respondent-appellee. lation. BROWNING, (sustaining Canisius, at 26-27 WRIGHT 799 F.2d Before Judges. FARRIS, Circuit four-year period of re- legislation involving 696 who, engaged in the offense and while

ORDER offense, knowingly of that commission deny appellant’s panel has voted to The brandished, used displayed, or otherwise reject rehearing and to petition for shall, in addition to the a firearm ... rehearing en for banc. suggestion provided the commis- punishment for sugges- full court was advised of The be sentenced to a offense, such sion of An rehearing en active for banc. prison imprisonment the state term of to re- requested vote on whether judge years 2 or more than 10 of not less than failed en The matter hear the matter banc. years, except provided 46-18-222. the votes of the majority to receive added). 46-18-221(1) (emphasis MCA § en judges in favor оf nonrecused active knowingly used Finding that Nichols had Fed.R.App.P. 35. banc consideration. felony of weapon engaged in the while rehearing denied and petition The is imposed a kidnapping, sentencing judge suggestion rehearing en banc years longer than the maxi- sentence ten rejected. by the statutes mum sentence authorized for which Nichols proscribing the offenses NORRIS, from Judge, dissents Circuit convicted. was to rehear the case the failure of the court upholds MCA panel A of our court now en banc. against a constitutional attack 46-18-221 § NORRIS, Judge, with whom Circuit sentence. Nich and affirms Nichols’ See REINHARDT, HUG, PREGERSON and (9th McCormick, 929 F.2d 507 Cir. ols v. Judges, join, dissenting from the Circuit 1991). argues Appellant Nichols that rehearing en denial of banc: constitutionally invalid statute is Montana kidnapping Dan Nichols was indicted of sentencing judge it allows because subjected statute that under a Montana maximum sentence authorized enhance the years ten penalty him to a maximum kidnapping and assault statutes Ann. 45- imprisonment. See Mont.Code § a convicted defendant upon that 5-302(2) (“A person convicted of the of- knowingly used a firearm the commis- kidnaрping imprisoned fense of shall be underlying offense. Such a sion of the prison not less than the state for a term of scheme, argues, deprives Nichols The years_”). or more than 10 jury right him his trial for facts 45-5-302, statute, kidnapping does MCA greater penalties expose § him to than which provide any enhancement of this penalties by the statute of authorized years. Nichols statutory maximum of ten conviction. under a Mon- also indicted of assault was challenge, panel rejecting Nichols’ subjected that him to a maxi- tana statute F.2d Risley, first invokes LaMere v. imprison- mum of six months of (9th Cir.1987), proposition Ann. 45-5-201. ment. See MontCode § statute at issue is a sentenc-

n trial, guilty At found him of both not create a sub- ing statute which does beyond any offenses reasonable doubt. Nichols, 929 F.2d at 509. stantive offense. sentencing, de- At sentenced panel then relies on McMillan v. Penn- ten-year maximum under fendant sylvania, 477 U.S. kidnapping statute and to the six-month (1986), dispose of Nichols’ statute. maximum under the assault See The Nichols constitutional claim. Nichols, 222 P.2d Mont.

State holding “the reads McMillan as Sixth (1986). sentencing judge require jury does not sentenc- Amendment then invoked a Mont.Code weapоn posses- makes a ing when a statute reads, 46-18-221, in relevant Ann. which sentencing factor rather than sion a part, as follows: Nichols, 929 F.2d at element of a crime.” panel also thinks com- 509. The

Additional sentences for offenses (1) posses- “free to define dangerous weapon. A left states McMillan mitted with a weapon as a factor” guilty any sion of a person who has been found cases, sentencing factfinding op- great pains but rather took such to distin even when a sentence guish doing, to increase them. In so empha erates underlying of- permitted Pennsylvania sentencing sized that Id. at 511. fense. statute “neither alters the maxi mum the crime committed nor creates from our court’s refusal to hear dissent calling separate pen offense for a pan- en because the Nichols Nichols banc McMillan, 87, alty.” 477 atU.S. 106 S.Ct. that reading el’s of McMillan and its view Indeed, Supreme very at 2417. Court stat- requires that the Montana McMillan recently emphasized again once that simply wrong. upheld ute be are McMil- McMillan relied on these two factors in simplistic and does not stand for the lan upholding Pennsylvania — statute. that, overly proposition formalistic once a Arizona, U.S. -, Schad v. 111 S.Ct. fact classified as a traditional has been 2491, 9, (1991). n. 2504 115 L.Ed.2d 555 factor, always sentencing process due will panel uphold Our rushes to the Montana proved by satisfied if that fact is a mere pausing without preponderance sentencing. at the con- statute even for a moment On McMillan, cite, trary, properly discuss, read in to mention or when let alone law, light Supreme Specht, of other Court case Winship, Mullaney and the critical fact re- clearly indicates that a portions opinion of the McMillan discuss in sulting in a sentence excess of the sen- ing these cases.1 tence authorized the statute of convic- McMillan, reading A careful in light pro- triggers panoply the full of due Supreme precedents, of these shows right protections including cess — clearly that McMillan does not stand for jury protections trial and the of the reason- proposition that is satisfied contrast, doubt standard. able sentencing when a statute authorizes a federal, government, state and issues both impose a sentence in excess of the license tо evade fundamental con- broad statutory maximum allowed the offense safeguards by shifting the fo- stitutional upon finding of conviction that the defen- adjudicating charges rum of of criminal “knowingly in dant used firearm” jury misconduct from trials to of that offense. It is the commission au- hearings. thority exceed the The Nichols misreads McMillan. underlying that offense differenti- Pennsylvania held that a sen- McMillan in ates the Montana statute at issue Nich- tencing imposed mandatory ols from statute at issue minimum for certain de- sentence convicted McMillan, properly in McMillan. when visibly possessed a fendants who firearm light Specht, Winship read in and Mul- felony the commission of the does not vio- laney, dictates the conclusion Nichols process. late due McMillan did not hold that the Montana statute is unconstitution- gun possession always permissible deprives al it the defendant of the because may proved by sentencing factor that right trial for each element of a preponderance. holding mere Such a crime. interpreta- would have conflicted with the why There is an additional reason McMil- tion of the Due Process Clause embodied result in this case lan does not control the Supreme Specht decisions in v. Court’s gun why and the Montana statute is inval- Patterson, 605, 1209, 386 87 18 U.S. S.Ct. undisputed safeguards (1967), id. It is Winship, L.Ed.2d 326 In re 397 U.S. “[t]he 358, 1068, (1970), of due are not rendered unavailable 90 S.Ct. 25 L.Ed.2d 368 Wilbur, 684, simply a determination al- 421 because Mullaney v. U.S. 95 1881, (1975). stig- ready 44 have reached that would S.Ct. L.Ed.2d 508 McMil- been might lead nor limited these matize the defendant and that lan neither overruled (Mont. 1990). Contrary panel, Supreme court below 1. to our So did ‍‌​‌‌‌‌​‌​‌​​​​‌​​‌‌‌‌​​​​‌‌‌​‌‌‌​‌​​​‌​​‌‌‌​​​​​‍the district McCormick, rejecting all three denying Court discussed cases in habeas relief. Nichols v. challenge 362, (D.Mont.1990). similar in a different case. State v. F.Supp. 738 365-71 Krantz, 298, 241 Mont. 788 P.2d 301-03 698 trial and personal lib distinctions between impairment of significant

ato why MCA 46-18- and shows erty.” Mullaney, U.S. States, 1889; impermissible side of the see also Burns United 221 falls on the — -, liberty interest highlights Part II line. (1991); id. S.Ct. Finally, L.Ed.2d III discusses some of issue. Part (Souter, J., dissenting). Under panel’s holding in implications of the jurispru interest Court’s jurispru- Nichols for our constitutional Allen, dence, see, e.g., Board Pardons sentencing practices in both dence and for 369, 107 S.Ct. 482 U.S. systems. state and federal (1987), Board Pardons v. Connecticut Dumschat, (1981), v. Nebras L.Ed.2d 158 Greenholtz Inmates, 1, 99 S.Ct. U.S. A ka Penal (1979), 2100, Bishop 60 L.Ed.2d 668 and was convicted for Sрecht, In defendant 2074, Wood, 341, 96 S.Ct. 426 U.S. stat- indecent liberties under one Colorado (1976), had a of 10 ute that carried a maximum sentence the statu interest in a sentence at or below sentencing, years. At the state evoked the tory maximum set the statute of convic- Act, the Sex Offender which increased use, because, finding gun absent a imprisonment, life to sentencing judge had no au- upon finding that a defendant convicted a longer thority impose to a sentence than specific sex offenses “constitutes a contrast, By statutory maximum. bodily threat of harm to members of no convicted defendant in McMillan had public, offender and men- or is an habitual liberty interest in a sentence below tally ill.” 39-19-1 Col.Rev.Stat.Ann. § by finding gun minimum a set (1963). The Court held that a defendant sentencing judge a had possession, because is entitled to the faced with such a statute impose discretion to a sentence unfettered panoply protections full of the relevant minimum, even absent above guarantees in process which due state Because a finding gun possession. a proceedings. Specht, 386 U.S. at criminal Nichols, liberty interest is at stake in 610, 87 S.Ct. at 1212. dramatically process due calculus is differ- Act differ- When, case, What made the Sex Offender in fact- ent. years ent from other acts that finding permits judge impose a to ten (and in Supreme upheld indeed re- had an earlier of additional incarceration Court case, York, 241, impose to two quires v. New 337 U.S. Williams incarceration), 1079, (1949)? First, we must deter- additional 69 S.Ct. 93 L.Ed. 1337 process is due before a defen- mine what Act does not make the the “Sex Offender liberty. panel deprived dant is of his specified crime the basis commission any inquiry. fails to conduct such sentencing. It makes one conviction commencing proceed- another basis opinion Because the misreads Specht, Act.” ing under another way opens in the door for McMillan Second, at 1211. whether a shifting adjudication much of criminal bodily harm person constitutes threat of evading sentencing phase and thus ill mentally offender and or is an habitual de- protections afforded to a constitutional finding not an is “a new of fact that was deprivation fendant threatened with a charged.” ingredient of the offense respectfully re- liberty, I dissent from the omitted). (citations suggestion rehearing en jection of the banc. the Sex Offender Act process, also violated due Court

My organized dissent is as follows: Part the view of the Third adopted as its own Winship, Mullaney Specht, I discusses “comparable struck particularly on Circuit which down and McMillan. It focusses “ in statute” because the constitutional line drawn McMillan ‘[i]t [cre- proceeding which permissible impermissible criminal between ates] Specht conviction of one of may be invoked after was decided in before the ” Louisiana, Court in specified crimes.’ Id. at 87 S.Ct. Duncan v. 20 L.Ed.2d 491 (quoting ex rel. United States (1968), incorporated right trial Maroney, 355 F.2d Gerchman into the Due Process Clause of the Four- (3d Cir.1966)). quote went on to teenth Amendment and before in the Court language that is crucial to from Gerchman In re Winship, 397 U.S. the due calculus Nichols: (1970), 25 L.Ed.2d 368 held that pro- judi- to a full “Petitioner ... was entitled requires cess that all elements of a crime hearing magnified cial before the sen- proved beyond doubt. reasonable hearing imposed. tence was At such a Mullaney is the first case which the requirements of due cannot opportunity Court had the Specht revisit by partial niggardly proce- satisfied post-Duncan and post-Winship con- protections. A defendant such dural text. Mullaney, Court faced a due proceeding panoply is entitled to the full process challenge ato Maine statute which protections of the relevant which due required the charged defendant with mur- process guarantees pro- in state criminal prove der to certain facts in order to reduce ceedings. He must be afforded all those a homicide manslaughter. Under the safeguards rights which are fundamental statute, a defendant convicted of homicide to a fair trial.” and essential sentence; would receive a life a defendant 609-10, Id. 386 U.S. at 87 S.Ct. at 1212 manslaughter subject convicted of was added). (emphasis greater twenty years. sentence no than Reasoning that “when viewed in terms of principle The constitutional a de- —that potential difference in restrictions of panoply fendant is entitled to the full personal liberty attendant to each convic- guarantees protections process which due tion, the distinction established Maine proceedings in “magni- criminal before a manslaughter between murder and may be imposed already fied” sentence is —had greater importance than the difference pre-Specht Supreme in been established guilt many between and innocence for less- See, e.g., case law. Court Chandler v. crimes,” 698, Mullaney, er 1, Fretag, 348 U.S. 99 L.Ed. 4 S.Ct. at in Mullaney held (1954). opinion The Third in Circuit’s that the Maine homicide statute violated provides Gerchman the most concise state- process Winship the due mandate of In re principle ment of this constitutional and its prove that the state each element of a history: beyond crime reasonable doubt. Id. imposition punish- The ... of greater 698-700, U.S. at 1889-90. Be- provided ment than that for conviction of safeguards process cause are due “[t]he a constituent element after an additional unavailing simply not rendered because Supreme of fact ... led the may already determination have been Court to hold in Fretag, Chandler v. stigmatize reached that would the defen- (1954) U.S. 3 S.Ct. 99 L.Ed. [75 4] might significant dant and that lead to a Boles, Oyler v. 368 U.S. 448 S.Ct. [82 impairment personal liberty,” id. at (1962), 7 L.Ed.2d that the 446] [stat- 95 S.Ct. at the Court reaffirmed its there involvеd ... created essen- utes] Specht process requires view due tially independent criminal offenses. that a convicted defendant be afforded the required This determination of panoply process protections if full of due the issues of fact involved in the statu- sentencing factfinding a serious will have tory proceedings must conform impact length on the of the sentence. Id. constitutionally guaranteed safeguards The Court said: of due in substantive criminal Maine, criminal law of like that [T]he trials. jurisdictions, of other is concerned Gerchman, (emphasis 355 F.2d at 311 only guilt add- or innocence in the ab- with ed). degree ‍‌​‌‌‌‌​‌​‌​​​​‌​​‌‌‌‌​​​​‌‌‌​‌‌‌​‌​​​‌​​‌‌‌​​​​​‍stract also with the of crimi- but culpability.

nal underlying felony.” 81-82, Maine has chosen to dis- Id. at tinguish those who kill in the S.Ct. at 2413-14. heat of passion from those kill in who the ab- upholding against chal- sence of this factor. Because the former lenge that the Due requires Process Clause ‘blameworth[y],’they subject are less are factor mandatory penal with substantially penalties. less severe consequences beyond to be proved a rea- By drawing distinction, this re- while doubt, sonable Court noted fusing require prosecution to es- Pennsylvania that the legislature had de- beyond tablish gun possession reasonable doubt the fined as a sentencing upon turns, factor, crime, fact which it Maine deni- rather than element grates and that generally the interests it would found critical defer to state legislative Winship. classification of such factors. However, Id. at 106 S.Ct. at 2416. 697-98, Id. U.S. at 95 S.Ct. at 1889 Court also stated there are constitu- (citations omitted). tional legislature limits which a States, In McMillan v. United (“As go. cannot recognized, Patterson 79, 106 (1986), 91 L.Ed.2d 67 course, there are constitutional limits to Court had to determine what constitutes an power regard; State’s certain element purposes crime of the limited Winship’s circumstances reason- Specifically, calculus.2 requirement able-doubt applies to facts not Court had to determine whether the fact of formally identified as elements of the of- gun possession” “visible as it was used in charged.”) fense Because the Court did particular McMillan, not articulate those limits in our scheme constituted an element of a crime. only guidance source of comes from the Pennsylvania The gun enhancement statute Court’s discussion of in cases which the provided, at “[AJnyone issue convicted of Court did not defer legislative classifica- certain enumerated subject felonies is tion of sentencing factors, certain facts as wit, mandatory minimum sentence Mullaney Specht. five years' imprisonment if sentencing McMillan neither nor overruled limited finds, judge by preponderance of the Mullaney, but distinguished rather it in evidence, person that the ‘visiblypossessed one paragraph. crucial See 477 U.S. at 87- a firearm’ during the commission of the 88, 106 S.Ct. at paragraph 2416-17. That offense.” Id. at 106 S.Ct. at 2413. The contains the extent of the Court’s discus- statutes proscribing the enumerated felo sion of the distinction between the invalid nies—murder degree, of the third volun Maine statute at issue in Mullaney and the tary manslaughter, rape, involuntary devi Pennsylvania valid at statute issue in intercourse, ate sexual robbery, aggrava McMillan. upheld Because the Court ted assault and kidnapping authorized process challenge in Mullaney but re- —all sentences above mandatory this minimum jected McMillan, it in the distinctions it years. Thus, terms, by live its own drew in that paragraph take on a critical Pennsylvania gun significаnce enhancement statute did in determining the constitu- “not authorize a sentence in tionality excess of schemes. The otherwise allowed for that offense.” Court said: Id. at Rather, S.Ct. 2414. “oper it Pennsylvania neither [The alters statute] to divest the of discretion to ate[d] penalty maximum for the crime com- impose any sentence of less years than five mitted nor separate creates a offense only arguably relevant Court 2. disprove beyond hold that "a State must period case in the Mullaney between and McMil- reasonable every constituting any doubt fact York, lan is Patterson v. New and all culpa- affirmative defenses related to the (1977). Patterson, S.Ct. bility 53 L.Ed.2d 281 of an accused.” Id. at 97 S.Ct. at upheld time, the Court a New York statute which 2327. At the same the Court in Patterson placed on a defendant convicted of murder holding reaffirmed Winship its In re in that the proving insanity burden of prove as an beyond affirmative state must a reasonable doubt all defense. The Court thus declined an invitation elements of a crime. 97 S.Ct. at 2326. penalty; oper- crime committed.” The calling panel for a it Nichols ad- Nichols, sentencing mits аs much. solely to limit 929 F.2d at 510 ates (“Nichols penalty selecting discretion in is correct in his court’s assertion that the already to it range Pennsylva- available Montana unlike that of within McMillan, special finding visible without nia allows the impose court to possession penalty in excess of that [The statute] firearm. only by ‘ups permitted by offense.”). the ante’ for the defendant underlying however, raising panel, rejects to five the minimum sen- The appellant Nich- may imposed that, argument tence which within ols’ once a fact alters the plan. gives no im- The statute maximum authorized the stat- conviction, having per- been tailored to pression of ute of the fact constitutes an possession mit the visible to be a proved element of a crime that must be wags dog doubt, beyond tail which the substan- a reasonable notwithstand- ing legislative tive offense. classification of that fact “sentencing as a factor.” 87-88, at 2417 Id. 477 U.S. at added) (footnote omitted). (emphasis Appellant argues Nichols that McMillan promulgates per se rule that all facts Similarly, distin- the Court McMillan permit require which a sentence en- Specht. again, the guished Onсe hancement case, overruled that neither limited nor but authorized the offense of con- conviction distinguished rejecting stitute elements of a crime. from the Colorado statute at issue argument, panel offers ground Specht Pennsylva- on the that the reading alternate McMillan. merely minimum nia statute “rais[es] suggests that the enhancement of the stat- imposed by the trial sentence that utory pro- result is not critical to the due at 2418. court.” Id. calculus,

cess but rather is one factor that B weighed in must be with two additional factors: line-drawing The Court’s constitutional legisla- One factor is whether the state directly applicable McMillan is to Nichols. attempted ture has to circumvent due triggers precisely Because Nichols the process protections by redefining ele- question of the constitutional line between sentencing ments of an offense as sentencing proved by factors that a Another factor factors.... is whether (McMillan) preponderance mere and ele- legislature prosecu- has relieved the proved beyond crime ments of that must be proving of all of the tion of its burden а doubt I (Mullaney/Specht), reasonable offense, elements of an as defined paragraph focus on the crucial in McMillan state, beyond a reasonable doubt. analyzing MCA 46-18-221. also See § Schad, (referring 111 S.Ct. at 2504 n. 9 to Nichols, 929 F.2d at 510-11. “relying as on the un-

McMillan fact that reading panel’s overlooks the fact possession weap- der law of a these without that to consider two factors penalty on ‘neither alters the maximum beg preexisting law would reference separate nor the crime committed creates a result, panel is question at hand. As a ”) calling separate penalty’ offense for a that these two led into the mistaken view McMillan, 87-88, (quoting 477 U.S. at weight in factors can have situations where 2417). S.Ct. at preexisting Be- there is no relevant law.3 begin inquiry by noting only are relevant the McMillan cause these two factors undisputed legislature either reclassifies an that it is that the Montana stat- when sentencing of a crime as factor ute “alters the maximum element 46-18-221, below, always passage explain MCA Montana § 3. As I also erred in not of examining display the Montana criminal law at the time either as a treated the or use of firearms My passed. independent MCA 46-18-221 was § crime. crime or as an element of a law that until the examination indicates Specht any mean- empty Mullaney and the state of the burden it relieves or when that a simply cannot be ing as well. It pro- previously proving an element check, can, any without legislature state state, crime, be- defined as scribed assault, subject it an offense start with doubt, they speak cannot yond a reasonable maximum, then allow a sen- to some legislature’s clas- permissibility of a penalty for all tencing judge enhance the sentencing in the as a factor sifying a fact imprison- up to life of novel factors sorts criminalize new place. Legislatures first ment.4 reasoning all the time. Under conduct legislature could panel, the of the Nichols that far- My scenario is not worst case new “offenses” as “sen- classify all these Montana, under MCA 45-5- fetched. impuni- constitutional tencing factors” with aggravated 202(1), person convicted of not sanction such ty. Surely McMillan did knowingly caus- “purposely or assault for so, had result; it would have had it done subject to bodily injury to another” is ing a deemed Mullaney, which had to overrule years. prison term of 10 Un- a maximum classify refusal impermissible Maine’s 46-18-224, der MCA § a crime. passion” as an element of “heat of law, person has been Montana who under Maine’s classifica- Mullaney struck down bodily guilty of an offense which found comported fact that it with despite (such aggravated as- injury occurred had classification which the common law sault) knowingly used or carried and “who unchanged at least Black- remained since armor-piercing loaded with handgun 693-94, age. Mullaney, during stone’s commission of the ammunition Blackstone, (quoting must, 95 S.Ct. at W. in addition to the sentence offense * 201). a term of Commentaries be sentenced to offense, years not less than 5 imprisonment ... of read, accurately gives McMillan When added). (Emphasis years.” or more than evaluating permissibili- process for us a enhancement, coupled with the ten This a novel fact ty a state’s classification of “knowingly dis- year enhancement Appellant factor. as a 46-18-211, firearm,” playing] MCA § that, the Su- is correct in his view under sentence from could increase defendant’s law, case a fact is an ele- preme Court’s deprivation years. to 45 And ment a crime if it enhances place without a would take A crime of conviction. maximum for the protection of the reasonable trial or reading of the law would render different doubt standard. meaningless language that McMillan’s fairly be read as re- the McMillan cannot are constitutional limits to “there legislative quiring such broad deference to power regard” in this and would State’s McMillan, All the Court did was for all situations. court also misread but factor 4. The district sentencing way. uphold particular scheme which Under the district court’s a in a different McMillan, penalty permissi- reading once a state has the maximum for the of neither altered factor, sentencing bly underlying it declared a factor to be a offense nor created a substantive proved penalty. mere calling separate that it be a separate authorize for a offense sentencing. preponderance Because McMil- amply at clear that the constitu- The Court made it permissible gun possession to a declared Mullaney lan if tional issue would be controlled factor, sentencing the court felt bound to hold opposite pointed direction. in the these factors passes Indeed, constitutional that MCA 46-18-221 recently § this view the Court reaffirmed Nichols, ("The F.Supp. at muster. 370-71 central to the constitu- that these two factors are import of McMillan lies in the Court's clear tionality sentencing scheme. See Schad of a possession weapon, recognition of a while a that Arizona, - U.S. -, n. 111 S.Ct. upon severity punish- of We, too, factor which bears the (1991). adopted have ment, a criminal offense is not an "element” of McMillan, reading straightforward both of this requires proved to be which due of law McDoughtery, 920 F.2d in United States v. doubt.”). beyond a reasonable Ricketts, Cir.1990) (9th and Adamson (en banc). (9th Cir.1988) got F.2d 1027-28 respect, the district court the With all due alters the maximum The Montana statute both reasoning backwards. The Su- in McMillan underlying offense penalty substantive weigh preme not the due Court in McMillan did calling separate offense for a and creates a and decide that calculus in the abstract separate penalty. permissible gun possession is a code criminalize Montana of the siоns as facts of classifications firearms in types of of certain use light of the Court’s in factors, particularly instance, crimes. For of other commission limits there are recognition 45-8-303, criminal a substantive MCA its go and reaf- § cannot legislature a which gun machine “use of a criminalizes in Mullaney, Mullaney. of firmation attempted perpetra- or perpetration in the Winship doubt reasonable referring to the subjects it and crime of violence” tion of a Winship stated that mandate, the Court 20-years imprison- up to penalty of to a that con- to those facts be “limited cannot a from substantive These ment. words by state as defined crime a stitute strikingly similar to statute sound criminal at 1889. atU.S. ‍‌​‌‌‌‌​‌​‌​​​​‌​​‌‌‌‌​​​​‌‌‌​‌‌‌​‌​​​‌​​‌‌‌​​​​​‍law...421 at issue sentencing statute in the is “Winship words say that on to went gun subjects use of here which than ... with rather concerned substance to enhanced any offense of re- commission that case of The rationale formalism. Mon- of the provisions penalties. Several ‘opera- analysis that looks quires an possession the mere tana code criminalize applied and the law as effect of tion and 45-8- MCA types of fireаrms. of certain state,’ § and to the interests by the enforced bearpng] “carrying] criminalizes as the defendant and the State of both dirk, dag- person a upon of concealed [one’s] of burden by the allocation affected cane, revolver, slingshot, sword ger, pistol, proof.” Id. metal or hard any of omitted). billy, knuckles made (footnote and citations substance, having 4 inches a blade knife plainly law of Montana operation razor, including safety longer, not long or process man- Winship due odds with criminalizes 45-8-318 MCA razor.” the McMillan § thrust of with the date and weapon by prison- deadly of a possession analysis. prison term to a subjects a violator er and however, has al- case, Montana any criminal- 45-8-331 years. MCA of 5-15 § of vari- carrying and use ways treated and knife a switchblade the use of izes as crime or either as ous arms prison a month violator to six subjects the sections Several a crime. element of code of Montana sections Other term. code criminal substantive explosives, possession criminalize as element of firearm an treat use 45-8-335, of a si- possession MCA § 45-5-201(l)(b) instance, MCA crimе. For § 45-8-336, posses- lencer, and MCA § “negligently assault, part, defines firearm, 45-8- MCA § of a sawed-off sion another with bodily injury to causpng] fir- criminalizes MCA 45-8-343 340. ” ato subjects the offender weapon ing firearms. If jail. of six months penalty two background, involved, Against “negligently weapon was no Montana, having de- Mullaney, years after criminalized. injury” is causpng] bodily display, knowingly who persons cided use 45-5-202 makes Similarly, MCA § the commission firearms in or use brandish “aggrava- between difference weapon the subject to enhanced any offense must the defendant assault,” subjects ted which subjected a statute passed “felony penalties, years, and of 0-10 penalty 2-10 penalties enhanced persons to such defendant to assault,” subjects the which chal- a constitutional Faced with years. Compare MCA years. 2-20 de- Supreme Court lenge, as- 45-5-202(1) (defining “aggravated § sentencing stat- a to be this statute knowingly clared “purposely as sault” argue this anyone seriously another”) ute. Can injury to bodily causpng] serious redefining an of a state example an “felony is (defining not 45-5-202(2) with MCA § sentencing factor as a a crime knowingly element “purposely or as assault” Winship’s reasonable to an evade a effort with injury to bodily another causpng] Montana stat- If the requirement?5 added). provi- doubt Other ”) (emphasis weapon of- a to substantive appears create penal tana called this legislature even Montana 5. The penalty. this separate In calling a Indeed, for fense face the Mon- on its "offense.” fact an years maximum sentence of ten and six “creating] separate a offense ute is not negli- If convicted of months. he is also separate penalty,” I cannot calling for a homicide, poten- an additional gent he faces imagine what would. years. equal to tial sentence of ten This is if McMillan offered no guidance, I Even potential the additional sentence he would Mullaney. fall back on Consistent would find, sentencing judge face if a were to Mullaney, viewed in terms of with “when a “fire- preponderance, a mere that he used potential difference in restrictions during of the arm” the commission offense. convic- personal liberty attendant to each It is clear then that defendant's interest tion, the distinction established [Mоn- factfinding sentencing under MCA 46- § felony while between committed tana] [a greater than his interest in trial 18-221 is possessing felony a and commit- [a firearm] factfinding many under Montana criminal im- greater ted without firearm] [is] jury If finds that the defendant statutes. guilt than the difference between portance negligent has committed the offense of homicide, [negligent kid- or innocence for homicide, instance, exposed he is to an napping many other lesser crimes].” penalty years. additional of ten The sen- (emphasis 421 U.S. at 95 S.Ct. at 1889 however, tencing judge, may decline im- added) Nevertheless, (paraphrase). under pose any prison By term for that offense. the opinion, defendant is afforded contrast, sentencing judge if finds that process protections factfinding for trial firearm, the defendant has used a the de- sentencing factfinding. not but only exposed fendant is not to the same operation An of the of the illustration years , amount of additional —ten — point: highlights Montana statutes this sentencing judge but the has no choice but Montana, kidnap- a defendant convicted of to sentence defendant least two addi- ping possible yeаrs prison. and assault at trial faces a tional statute, regard, provision repeated the statute’s of- convicted of a first offense under this he years; exposed fenders is instructive: is to a sentence of 2-10 if he is convicted of a second offense under this person A convicted of a second or subse- exposed years. of 4-20 he is to a sentence shall, quent under this section in addi- offense court, How did the district and on its foot- punishment provided the com- steps, ignore plain panel of this circuit this offense, present mission of the be sentenced language pure and declare this statute to be a imprisonment prison to a term of in the state sentencing statute? Because the Montana Su- of not less than 4 or more than 20 Court, preme post ex and faced with a years.... facto challenge along the federal constitutional Mulla- And, further: lines, ney/McMillan held that the statute does subsection, purposes For of this the fol- create a substantive offense. See lowing persons shall be considered to have Nichols, (relying F.Supp. at on State v. previous this been convicted of a undеr offense Krantz, (1990)). P.2d 241 Mont. (a) person previously section: who has been Krantz, But see State v. 241 Mont. 788 P.2d offense, dif- convicted of committed on a J., (1990) (Sheehy, concurring and dis- offense, present ferent occasion that the under senting). example If this is not an of a state 924(c).... § 18 U.S.C. redefining sentencing factor in 46-18-221(2) added). a crime as (emphasis order to evade the constitutional mandate of In person Who is a "convicted of a second or section,” Winship, re is? what subsequent offense under but light Supreme deci- somebody previously of the Montana Court's who has been found to Krantz, might agree even with knowingly possessed during sion State have a firearm legislature felony? the Nichols that “the [Montana] of a And what an "of- commission 924(c),” attempted has to circumvent due [not] fense ... under 18 U.S.C. but use or by redefining possession during protections of a firearm the commission elements of an offense any crime of which federal courts as factors." Nichols 929 F.2d at 510 violence added). uniformly (emphasis That’s because the Montana have considered an element triggers panoply pro- legislature knowing possession declared to be crime that the full of due including right protections Montana cess "an offense." It is the offense, Ramirez, nay of an trial? United States v. (2nd Cir.1973); 482 F.2d 807 that has redefined elements Sudduth, offense, Surely, factor. United States v. whole (10th Cir.1972). scrutiny of state action in this area

F.2d 1198 the McMillan language any less because the reclassifica- The of the Montana statute could would not be plainer: knowing possession by judges is carried out state rather than not have been The tion offense; legislators. of a firearm is an if a defendant state plied holding no that a Montana makes Greenholtz scheme Such a constitutional parole liberty in- release statute created a by McMillan. is not authorized sense. It terest. The Montana Parole Board had reason, by it is condemned And, good argued deny- the criteria because Mullaney. broad, very

ing e.g., release were “detri- prisoner community,” ment to II the Board retained so much discretion McMillan, I, why In Part I discussed liberty despite no interest was created stat- Specht and Mulla- light when read utory language that re- “the board shall sentencing stat makes it clear that ney, parole any person_” lease on ... pеnalty autho enhancing ute the maximum 376, Court, U.S. 107 S.Ct. at 2420. would be by rized the crime of conviction rejecting argument, held that mandato- proscribed facts have unless the invalid language liberty ry created interest even doubt found a reasonable been regulatory scheme “cannot when reason, how jury. There is an additional mechanically,” long applied as it re- ever, cannot be read as why McMillan quires designated findings release when authorizing sentencing statute to enhance 375, 377-78, are made. 107 S.Ct. at by the penalty authorized the maximum 2419, 2420. pro That reason is of conviction. case, In this Nichols was convicted at liberty Supreme Court’s inter by the vided 45-5-320(2) kidnapping.6 trial for MCA § See, e.g., Board Par jurisprudence. est states, person “A convicted of the offense 2415, 369, Allen, 107 S.Ct. 482 U.S. dons v. imprisoned kidnapping shall be ... for a (1987), Board 96 L.Ed.2d 303 Connecticut years.” term of not ... more than 10 458, 101 Dumschat, 452 U.S. Pardons v. added). (Emphasis liberty had a (1981), 2460, L.Ed.2d 158 Green 5.Ct. at or this stat- interest a sentence below Inmates, 442 Penal U.S. holtz v. Nebraska utory by the statute of con- maximum set (1979), 1, 2100, 60 L.Ed.2d 668 99 S.Ct. because, gun viction absent 341, Wood, Bishop 426 U.S. 96 S.Ct. v. use, sentencing judge had no (1976). 2074, 48 L.Ed.2d 684 longer authority impose a sentence than analysis is any liberty interest Central to Thus, after maximum. even governmental discre- to which the extent conviction, liberty interest in Nichols had liberty away to take has been cabined being incarcerated in excess of that not See, through legislation. e.g., Connecticut period. Dumschat, v. 452 U.S. Board Pardons knowing gun use fact of 458, 465, 2460, 2465, 69 L.Ed.2d Nichols’ impact and serious on had a direct (1981)(“The ground for a constitutional him only exposed It liberty interest. claim, any, if found in statutes or must be years, of ten but an additional sentence defining obligations of the other rules impose sentencing judge required that authority....”); Bishop [relevant] years greater of at least two a sentence Wood, U.S. have other- the sentence she would than (1976). parole In the 48 L.Ed.2d 684 Indeed, sentenced imposed. wise context, instance, a defendant convicted Thus, maximum. Nichols to early have a interest seemingly innocuous sen- as a result of a parole if of the release date the discretion fact, finding of Nichols received tencing by statute. authority is restricted See he could years longer ten than sentence of Inmates, Penal v. Nebraska Greenholtz received. have otherwise 2100, 2106, 1, 12, 99 S.Ct. contrast, McMillan, (1979). Board Pardons upon any impinge Allen, finding of fact did not defendant had (1987), ap- liberty interest because the the Court 96 L.Ed.2d 303 sentencing judge assuming sentenced simplicity, of six months. The I am 6. For the sake of My analysis is identical at the maximum. assault. An assault him he was not convicted of plus kidnapping conviction. assault exposed conviction him to maximum Burns, 111 S.Ct. facts. proscribed of the below in sentence liberty interest a no question wheth the involved 2187. Burns years. five Under of statutory minimum Procedure 32 Rule of Criminal er Federal gun enhancement the sentencing judge is that the requires notice legitimate basis had no a defendant the upward from considering departing gun en- below the a sentence expecting sentencing range.” Guidelines “applicable be- of five minimum hancement 32 to interpreting Rule In provision did at 2184. Id. gun enhancement the cause stated, notice, “In the Court sentencing judge’s require discretion such the not affect 32 to statutory case, read Rule to up to the were we a sentence impose to notice, have would then twenty years. Even absent we dispense with of maximum question whether a possession, the serious finding gun to confront a impose a the setting is mandated discretion in this unfettered judge had notice statutory Implicit in that minimum. that Clause.” above Due Process sentence lost recognition that McMillan the defendant is the Court's All that concern five of less than its dis sentencing, of a sentence even at most hope was a Guidelines mere hope” liberty on in based years. A “unilateral create cretionary phase, liberty enough to create not chance is below in a sentence terest Dumschat, 452 U.S. at interest. See maximum. “a idea that (rejecting the at 2465 dissent, Souter reached Justice proba on statistical hope” based unilateral he disa question because liberty interest expectation). legitimate to a bility amounts interpretation of greed with the Court’s in a expectation statute-based Absent analysis, Souter his Justice 32. Rule had sentence, defendant a convicted lesser Sentencing that unequivocally found sentenc in the liberty interest stake no subject expectation “an Act creates Reform words, a In other factfinding process. ing рrotection process defendant] [a due ‍‌​‌‌‌‌​‌​‌​​​​‌​​‌‌‌‌​​​​‌‌‌​‌‌‌​‌​​​‌​​‌‌‌​​​​​‍by whatever possession, finding gun presump within the a sentence will receive change proof, could standard in the absence range tively applicable McMillan, 477 calculus.” “due Burns, justifying departure.” grounds ... at 2419. U.S. at J., dissenting); (Souter, at 2192 S.Ct. gun enhancement Montana Lawrence, 918 States see also United dramati- calculus changes the Cir.1990) (“[The (8th Guide 68, 73-74 F.2d constitutionally it takes cally because protected defendants give convicted lines] step exposing convicted determinative a sentence within interest of that excess defendant their con appropriate for range Guidelines proscribing by the statute authorized J., circumstances.”) dis- (Bright, duct and judge en- can conviction. offense of — -, denied, senting), cert. cer- only if she makes hance sentence (1991). In his 113 L.Ed.2d in the Mon- specified fact findings of tain upon relied Green- Souter analysis, Justice Indeed, statute. enhancement gun tana recog holtz, progeny, and which supra, its required to enhance statutes, by mandatory parole nized that findings of those if she makes the sentence “expectan an convicted defendants giving fact. release,” liberty interest cy create of constitutional “some subject to measure my dissent point out United As Greenholtz, 442 U.S. at (9th protection.” F.2d Restrepo, States v. reasoned Souter J., 2106. Justice banc) (Norris, dissenting), S.Ct. at Cir.1991) (en similarly cre Act Sentencing Reform recently recognized mandatory using liberty interest may cre- ated a Sentencing Guidelines that federal “shall sentencing judge language that a in a sentence liberty interest even ate kind, within impose a sentence of authorized below Guidelines,] un in the range forth a sen- [set of conviction because by the offense there exists finds ap- court less the depart above the tencing judge cannot circumstance mitigating aggravating range absent plicable Guidelines

7Q7 kind, (Souter, J., degree, adequately not taken at see also dissenting); or to 2193 Allen, Board Pardons v. 369, Sentencing into consideration Commission.” 482 U.S. of 3, 2415, ns, 3, 373 n. (Sout 107 S.Ct. 111 at 2192 2418 n. 96 Bur S.Ct. (1987) (“At L.Ed.2d 303 stake in er, J., parole- dissenting) (quoting 18 U.S.C. release freedom, decision is a return to 3558(b)). freedom; albeit liberty conditional from reasoning eight The Justices in bodily restraint is at the heart of the liber- Burns,7 which involved a sentence below ty protected by Clause.”); the Due Process maximum, statutory applies with full Brewer, Morrissey 482, 471, 92 process factfinding force to a that enhanc 2593, 2601, (1972) S.Ct. 33 L.Ed.2d 484 statutory es a sentence above the maxi (“[T]he liberty parolee, although inde- mum. The Montana substantive criminal terminate, many includes of the core values liberty statutes create a sen interest unqualified liberty and its termination tencing at the ‘grievous inflicts a parolee loss’ on the offense of conviction. We must determine others.”). often on Under then what is due before a defen statute, a defendant’s stake in accurate deprived liberty dant of this inter factfinding at sentencing frequently will subsequent hearing. est at a as, great than, if greater not his stake in Because Montana substantive crimi factfinding accurate at trial because the liberty nal statutes create a interest sentencing factfinding exposes poten- him sentence at or below the maxi tially greater penalties than trial fact- mum, should have determined does.

what is due before a defendant In the context of criminal adjudication, deprived Particularly, of that interest. it we have struck the balаnce between the ought to have determined what standard of interests of defendants and the state in proof process. In resolving satisfies due favor of the reasonable-doubt standard of Mullaney man question, this constitutional proof that, our because of view “it is far analysis dates “an looks ... guilty only worse to sentence one of man- interests of both the State and the defen slaughter as a murderer than to sentence dant as affected the allocation of the murderer for the lesser crime of man- proof.” 421 burden of at 95 U.S. S.Ct. 703-04, Mullaney, slaughter.” U.S. at 1890; Eldridge, accord Mathews v. (paraphrasing Winship, 95 S.Ct. at 1892 (1976); U.S. 96 S.Ct. 47 L.Ed.2d 18 368, 372, 397 U.S. at 90 S.Ct. at Burns, see also (Sout 111 S.Ct. at 2192-96 (Harlan, J., “Moreover, concurring)). use er, J., dissenting) (applying the Mathews of the reasonable-doubt standard is indis- Restre sentencing); test in the context of pensable respect command the and confi- go, (Norris, J., dissenting) 946 F.2d at 675 community applications dence of the (same). Winship, the criminal law.” 397 U.S. at 364, 90 S.Ct. at 1072. importance liberty interest at In Speiser stake need not be labored. In Mullaney, acknowledged the Court Randall, heavy often reasonable doubt “is (1958), prosecution satisfy.” burden for the called a criminal’s defendant intеrest lib U.S. at 1891. The Court erty transcending “an interest of however, value.” say, went on to that “this is the Burns, Id. 78 S.Ct. at 1342. system traditional burden which our said, Justice Souter “The defendant’s inter Id. justice criminal deems essential.” receiving est in unlawfully sentence not difficulty Court also noted that “the higher upper guideline than the limit meeting exacting such an burden is miti- range clearly gated largely is ... substantial.” the fact ... where at issue is Blackmun, Stevens, statutory analysis, 7. Justices Scalia and Kenne- with Justice Souter’s but did dy joined opinion Justice Marshall’s join part opinion of Justice Souter’s joined Court. Justices White and O’Connor Jus- analysis. carried out the interest agreed tice Souter’s dissent. The Chief Justice more tutored but jury to the ment of a be- subjective, rather than ‘objective, ” the of sympathetic reaction perhaps at at 95 S.Ct. less havioral criterion.’ Rollins, A.2d to it. judge, 295 he was have single v. (quoting State 1891 (Me.1972)). 914, 920 Here, at 1451. at 88 S.Ct. completely opinion Because the judg- the- common-sense having preferred liberty interest important the overlooks nevertheless jury, Nichols was ment of the case, the fails to conduct it in this stake escaping from by 46-18-221 barred MCA § It thus inquiry. applicable cоnstitutional perhaps sympa- less but “the more tutored stan- doubt the reasonable determines judge.” Id. single a thetic reaction of the benefit inapplicable without is dard Fourteenth that “the undisputed It is juris- liberty interest Supreme Court’s the right jury to trial guarantees a Amendment oversight particularly is This prudence. they to which—were in all criminal cases constitutionally light of the troubling in come in a federal court—would be tried panel reaches. the problematic result guaran- Amendment’s the Sixth within Duncan, 88 S.Ct. 391 U.S. at tees.” Ill a defen- question is whether at 1447. also Nichols, was the defendant to a court would entitled in federal be dant his juryA homicide. charged with finding of fact would sub- a jury for however, guilty” of him “not found peers, of that him a sentence excess ject to sentencing, judge ex- At that offense. which he by the statute under authorized jury’s disappointment pressed his with determining initially “In was convicted. Nichols, 222 Mont. v. See State verdict. prison length of the authorized whether (1986)(“Despite the 1164 P.2d 720 punish- of other term or seriousness homicide, guilty for of not jury's verdict require jury a in itself to enough is ment stated, my ‘The judge defendant criteria, trial, objective refer to we ... legally morally equally if not judgment practices in the existing law and chiefly the of A1 Goldstein the death responsible for at 1453. Nation.” Id. ”). The him that.’ sentence for and can’t gun use judge then invoked in which a federal case I know of no and enhanced defen- here statute at stake beyond a sentence court enhanced district years. ten dant’s sentence by re maximum authorized statute proved at was not a which way lying rele- on fact no Although facts are in these Indeed, doubt. beyond reasonable constitutionality sentenc- trial a of the vant to consistently declined courts have here, they helpful a remind- federal are ing scheme enhancing the right interpret to a underlying the statutes the rationale er of dispens sentencing statutes trial, of our as is the cornerstone maximum jury which factfinding. put requirement jury As the Court justice system. ing of the criminal States, 435 See, Simpson Louisiana: v. United e.g., it in Duncan v. 909, 911, 6, 10, right to be with Providing an accused Ramirez, 482 F.2d (1978); v. States him an United peers gave his by jury tried Cir.1973); (2nd v. Sud United States If the defen- safeguard_ inestimable Cir.1972).8 (10th duth, judg- 457 F.2d preferred the common-sense dant prior without a three felonies the existence construing Criminal the Armed 8. Cases Career opportunity to sub- jury, had an jury right for defendant dispensing trial as with Act original jury trials contrary factfinding way mit the felonies are in no Potter, found those See, or a has and either authority. e.g., United States See, e.g., beyond (9th Cir.1990). reasonable doubt. felonies That F.2d (6th Brewer, felon, F.2d United States who has convicted requires that been highly Cir.1988) (“Prior verifia- felonies, convictions are imprisoned at prior be three violent subject not be record which need ble matters of possessing See 18 least 15 firearm. re- had 924(e)(1). jury inquiry. Because defendant 922(g)(1), Possession U.S.C. §§ protections totality constitutional must ceived firearm is an element of offense fact- proceedings, additional prior no due in the doubt. proved at trial reasonable necessary."). finding is sentencing judge Although can determine Sudduth, instance, the court had The difference the two stat- [between interpret a federal 18 U.S.C. is obvious. op- Montana’s statute utes] 924(c)very similar to the statute at issue erates to alter the uses a firearm here: “Whoever to commit committed, the crime opposed to sim- felony prosecuted he for which ply limiting court’s discre- shall, a court of the United States ... tion. The statute increases the maxi- punishment provided addition to the penalties, mum prescribed as otherwise felony, commission of such be sentenced to felonies, all years. ten imprisonment a term of for not less than McCormick, Nichols v. F.Supp. year years.” one nor more than ten (D.Mont.1990). declaring that sepa- this section creates a Unlike panel, the Nichols the district despite rate offense the fact that is to be correctly court then identified question sentencing part found in the of Title presented by this case: “The court must noted, subject Tenth Circuit matter “[T]he decide whether this scheme com- persuades of the subsection us to hold that ports process with the requirement, due as it proved was intended and should be as a defined in Winship, In re prosecu- that the separate crime.” 457 F.2d at 1201. The prove beyond a reasonable doubt ‘ev- gun court also remarked that the issue of ery necessary fact to constitute the crime frequently use “will a group involve ” charged.’ Id. The court’s disputed facts or inferences which will answer was resoundingly negative: or contested and from which different in- added, ferences will be drawn.” The court Clause, believe the Due Process in- opinion possibili- “We are of the that these terpreted by court, Winship In re ties properly make the matter to be demon- requires possession firearm, of a under jury.” strated to the satisfaction of the scheme, the Montana to be considered an element of a criminal offense to which panel’s reasoning Nichols, Under the proof beyond a reasonable applies. doubt Congress would be free to overrule cases such as Sudduth and to declare that it Id. at Having 370 n. 15. stated that the provision never intended the relevant to be Montana scheme violates the In re Win- Furthermore, pass- elements of a crime. ship mandate that all elements ing legislation, new Congress criminal proved crime be a reasonable would be free to declare novel criminal doubt, the district court nevertheless held By facts to be factors. thus that the MCA 46-18-221 satisfies due giving Congress legislators and state free process. In doing, so the court relied on an reign to shift much adjudication of criminal reading erroneous sharply McMillan as sentencing phase, the Nichols limiting In Winship. re undermines two cornerstones of our crimi- Although it also relying upon erred in justice nal system: right trial controlling authority McMillan as in up- protection and the of the reasonable doubt holding gun enhancement granted standard. Defendants are the full court, the district unlike our Nich- panoply trial, protections of due panel, clearly ols was troubled the con- protections but these turn illusory out to be implications holding. stitutional of its In- they if are not available to defendants fac- deed, the district following court made the ing greatest threat to their plea Supreme Court: sentencing.

Any change or clarification of law th[e] must emanate from Court. IV regard, expressed Justice Powell would, The district court difficulty below had no his confidence that the Court even recognizing the difference approach between the under the formalistic of consti- Montana statute at issue here adjudication adopted and the tutional in Patter- son, statute at issue way’ McMillan: ‘find some to strike down a yet stat-

formalistically egregious correct

ute. added). (emphasis F.Supp. 370 n. 15 that McMillan I am convinced

Because simplistic proposition not stand for the

does labeling gun a sen- every statute use muster,

tencing passes constitutional factor would have hoped

I had that our court plea, court’s ex-

responded to the district controlling was not

plained McMillan the statute the

authority and invalidated “egregious.” so

district court found

WIND RIVER MINING CORPORA-

TION, Plaintiff-Appellant, America; Manuel

UNITED STATES of Jr.; Jacobson,

Lujan, Director of Delos Management,

the Bureau of Land De-

fendants-Appellees.

No. 90-55731. Appeals,

United States Court

Ninth Circuit.

Submitted June 1991.*

Decided Oct. 1991. * 34(a). Fed.R.App.P. appropriate Circuit Rule 34-4 and ‍‌​‌‌‌‌​‌​‌​​​​‌​​‌‌‌‌​​​​‌‌‌​‌‌‌​‌​​​‌​​‌‌‌​​​​​‍finds this case for submis- argument pursuant to Ninth sion without oral

Case Details

Case Name: Dan Nichols v. Jack McCormick Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 8, 1991

Citation: 946 F.2d 695

Docket Number: 90-35416

Court Abbreviation: 9th Cir.