Lead Opinion
SUTTON, J., delivered the opinion of the court, in which BOGGS, C.J., GUY, BATCHELDER, GILMAN, GIBBONS, ROGERS, and COOK, JJ., joined. MARTIN, J. (pp. 443-49), delivered a separate dissenting opinion, in which DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.
This court granted en banc review of United States v. Koch,
I.
Briefly summarized, the facts are these. In 2001, Robert Koch bought large amounts of marijuana in Arizona to sell in Kentucky. To further his scheme, he asked Justin Davis to act as a “frontman” who would sell drugs on Koch’s behalf. Koch supplied Davis with five pounds of marijuana on credit, and Davis promised to repay Koch $5,000 once he had sold the drugs. Davis, however, failed to repay the $5,000, claiming in his defense that the drugs had been stolen. Apparently suspicious of Davis’s explanation, Koch took matters into his own hands.
In the early morning of April 27, 2001, Koch went to Davis’s home with Patrick O’Brien, Robert Gibson and Joe Shukler. Koch and Gibson were carrying guns. Koch and Gibson knocked on the door, which Davis’s roommate, Luke Hitchner, answered. Although witness accounts differ over what happened next, it is clear that before long a shoot-out began between Koch and his compatriots on the one hand and Davis and Hitchner on the other. During the shoot-out, Gibson was killed and O’Brien was permanently injured.
Koch fled the scene and was not immediately apprehended. After police learned about his drug-dealing activities and the shoot-out, they executed a search warrant at his home. There, they discovered a Beretta handgun, 31 rounds of ammunition, over $1,000 in cash, 421.5 grams of marijuana and marijuana-cultivating equipment.
A federal grand jury indicted Koch on six counts stemming from his drug-dealing and the shoot-out: (1) conspiring to possess and distribute marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) using a firearm in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(l)(A)(iii); (3) being an unlawful user of a controlled substance in possession of a firearm in violation of 18 U.S.C. § § 922(g)(3) & 924(a)(2); (4) possessing with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1); (5) possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(l)(C)(i); and (6) being an unlawful user of marijuana in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) & 924(a)(2).
A jury convicted Koch on each count but the fifth one. At sentencing, the district court found that (1) Koch’s drug conspiracy involved 907 kilograms of marijuana, thereby requiring an enhanced base-offense level of 30 under U.S.S.G. § 2D1.1; (2) Koch had obstructed justice (by threatening a witness), thereby requiring a two-level enhancement under U.S.S.G. § 3C1.1; and (3) Koch had possessed a dangerous weapon, thereby requiring a two-level enhancement under U.S.S.G. § 2Dl.l(b)(l). All adjustments considered, Koch faced a base-offense level of 34, which, when combined with his criminal history category (I), resulted in a sentencing range of 151-188 months. Despite this sentencing range, the court sentenced Koch to concurrent 60-month sentences on Counts 1, 3, 4 and 6 because it believed (mistakenly, it
Koch appealed his sentence. He argued that the district court’s finding that the conspiracy involved 907 kilograms of marijuana was not supported by the evidence. He argued that the district court committed a “double-counting” error by adding two levels for his possession of a weapon. And he challenged the court’s six-level upward departure on his sentence for Count 2 on numerous grounds. A panel of this Court rejected each argument and affirmed his sentence.
Koch filed a petition for rehearing en banc, arguing that the enhancement provisions of the Sentencing Guidelines violate the Sixth Amendment as construed in Blakely v. Washington, — U.S. -,
II.
We are not the first court to consider this question and we will not be the last, as the Supreme Court has scheduled oral arguments on this question for October 4, 2004. See United States v. Booker,
First, in responding to a request that we invalidate the Sentencing Guidelines, we agree with Judge Easterbrook that “[t]his is the wrong forum for such a conclusion.” Booker,
Since 1987, when the Sentencing Guidelines were promulgated, the Supreme Court has considered numerous constitutional challenges to them, not one of which suggested their eventual demise and at least one of which gave the back of the hand to the kind of challenge raised here. To our knowledge, not one Justice has opined that the sentencing-enhancement provisions of the Guidelines violate the Sixth Amendment.
In 1989, the Court rejected an across-the-board challenge to the constitutionality of the Guidelines and to the Sentencing Commission on non-delegation and separation-of-powers grounds. Mistretta v. United States,
In all of these cases, the Court did not characterize the Guidelines themselves as a source of “statutory máximums.” And in each of the post-Mistretta cases, the Court addressed a question not dissimilar to the one presented here: May federal judges find facts under the preponderance standard that increase a sentence beyond the facts found by the jury under the beyond-a-reasonable-doubt standard? Because the Court said “yes” in each case, this line of authority by itself suggests that a lower court should be skeptical about concluding that Blakely’s invalidation of a state-sentencing scheme suddenly dooms the Federal Sentencing Guidelines.
But in Edwards v. United States,
Edwards, to be sure, is a pr e-Blakely and a pr e-Apprendi decision. But Blakely never mentions the decision, much less overrules it. And instead of marginalizing Edwards, Apprendi inflates its significance by saying the following:
The Guidelines are, of course, not before the Court. We therefore express no view on the subject beyond what this Court has already held. See, e.g., Edwards v. United States,523 U.S. 511 , 515,118 S.Ct. 1475 ,140 L.Ed.2d 703 (1998) (opinion of BREYER, J., for a unanimous court) (noting that “[o]f course, petitioners’ statutory and constitutional claims would make a difference if it were possible to argue, say, that the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only conspiracy. That is because a maximum sentence set by statute trumps a higher sentence set forth in the Guidelines.”).
Faced with this line of authority, our Circuit has consistently turned back Sixth Amendment challenges to Guideline enhancements so long as the resulting sentence falls below the eongressionally-pre-scribed statutory maximum. See United States v. Lawrence,
Instead of criticizing its own cases or lower court cases that have reached similar conclusions, the Supreme Court said in Blakely that “[t]he Federal Guidelines are not before us, and we express no opinion on them.” Blakely, — U.S. at - n. 9,
Second, differences between the sentencing provisions at issue in Blakely and the Federal Sentencing Guidelines may well have constitutional significance. According to Apprendi the Sixth Amendment contains the following requirement: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
[T]he “statutory maximum” for Appren-di purposes is the maximum sentence a*441 judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. ... In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
— U.S. at -,
Relying on this passage, Koch argues that, for federal sentencing purposes, the “statutory maximum” is no longer the sentencing range enacted by Congress but the sentencing range promulgated by the Sentencing Commission. The logic of this argument has some force because the Guidelines require federal judges to find facts that will indeed increase individual sentences. The argument is not conclusive, however, because the “statutory maximum” at issue in Blakely arose from a statute, and the Sentencing Guidelines are not statutes. While sentencing statutes and the Guidelines both have the force of law and both bind courts, see Stinson v. United States,
Whether this distinction will carry the day in Booker and Fanfan remains to be seen, but it at least undermines the view that Blakely compels us to invalidate the Sentencing Guidelines. Blakely did not hold — because it could not hold — that agency-promulgated sentencing rules must be treated as creating “statutory máxi-mums.” The issue was not before the Court. And indeed Blakely’s counsel advanced the very distinction we have drawn, arguing that Washington’s standard “sentencing ranges” as “prescribed by the legislature” differ materially from the “federal sentencing grid [which] is promulgated by a Sentencing Commission that resides in the Judicial Branch.” Br. for Pet’r,
The distinction seems significant in another sense. While it may be true that agencies are no less capable of violating the Sixth Amendment than legislatures, the Guidelines come from the very branch of government that all nine Justices of the Court agree has long exercised considerable discretion over sentencing determinations based on the same kinds of factual determinations that the Guidelines ask federal courts to make. Blakely, — U.S. at -, -,
Unlike the sentencing statute in Blakely, finally, it remains unclear how a rule that turns on the “statutory maximum” or the “maximum sentence” would apply to the Sentencing Guidelines. The Guidelines do not supply a clear “standard sentencing range” for each defendant and indeed represent a form of indeterminate-determinate sentencing because even after application of the hundreds of pages of the' Guidelines Manual, to say nothing of relevant case law, to each individual defendant’s sentence, judges still may increase (or decrease) sentences based on factors not addressed in the Guidelines. See 18 U.S.C. § 3553(b)(1); U.S.S.G. § 5K2.0. No “standard” sentence for categories of defendants thus emerges from the Guidelines in the same way that it does for the two-factor sentencing grid that Washington’s legislature adopted.
Third, in asking us to invalidate the Guidelines, Koch asks us to embrace a reading of Blakely■ — any fact that increases a defendant’s punishment must be submitted to a jury — that not only would extinguish the Guidelines but also would create tension with other Court precedents.
It has long been true that legislatures may treat some facts as “sentencing factors” that need not be submitted to a jury and other facts as “elements” of the crime that must be submitted to a jury and (in the federal system) included in the indictment. In McMillan v. Pennsylvania,
In the face of these decisions, Blakely presents a lower court with stark alternatives for explaining why the Guidelines must be invalidated. One possibility: Blakely means that judges may never make findings of fact that increase an individual’s sentence. No doubt this theory would invalidate the Guidelines, but it also would create tension with the Court’s other decisions giving legislatures wide berth in distinguishing between sentencing facts and elements-of-the crime facts. The other possibility: Blakely means that “Other than the fact of a prior conviction, other than facts that compel mandatory minimum sentences and other than (still other) facts not traditionally treated as elements of a crime, any fact that increases the
All of which brings us back to our central concern. It may be that the trajectory of Apprendi, Ring and Blakely will end with a nullification of the Guidelines. But, in the face of these relevant precedents, it is not for us to make that prediction or to act upon it. Not only would such a ruling be of some consequence to the Guidelines, but it also would be in tension with whole bodies of law that the lower courts long have been obliged to follow.
Dissenting Opinion
dissenting, joined by DAUGHTREY, MOORE, COLE, and CLAY, Circuit Judges.
The majority’s opinion in this case amounts to nothing more than an exercise in futility and a waste of time and resources, in light of the Supreme Court’s grant of certiorari in United States v. Booker, No. 04-104,
Nevertheless, because the majority has taken this opportunity to state its position, I feel compelled to explain why I disagree. For the reasons discussed below, I believe that the Guidelines are invalid under Blakely to the extent that they compel a trial judge to impose a sentence that exceeds the maximum sentence that is authorized “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, — U.S. at -,
The seeds of Blakely were sown in Ap-prendi v. Neiv Jersey, in which the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
In Blakely, the Court built upon and clarified the rule announced in Apprendi holding that:
Our precedent make clear ... that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.
Blakely, — U.S. at -,
Blakely involved the constitutionality of the sentencing scheme employed by the State of Washington, which was composed of two statutes. The first statute prescribed the sentence ranges for each class of felony offenses. Blakely was convicted of second-degree kidnaping, for which the statute provided a maximum sentence of ten years imprisonment. Wash. Rev.Code Ann. § 9A.20.021(1)(b). The second statute, called the Sentencing Reform Act, specified more limited standard sentence ranges for particular offenses; for Blakely’s offense, it set a range of 49-53 months imprisonment. Id. § 9.94A.320. A Washington trial court could impose a sentence that exceeded this standard range only if it found a “substantial and compelling reason justifying an exceptional sentence.” Blakely, — U.S. at -,
As the majority acknowledges, in determining what the statutory maximum was for purposes of Apprendi the Blakely Court looked to the standard sentence range for second-degree kidnaping that was set by the Sentencing Reform Act, not to the broader sentence range provided in the other statute. Id. As a logical consequence, the statutory maximum in this case is provided in the Guidelines, rather than in the substantive criminal statutes that Koch was convicted of violating. Both the Guidelines and the Washington Sentencing Reform Act were designed to narrow the extremely wide sentence ranges within which a defendant could be sentenced for any particular offense. Compare U.S. Sentencing Guidelines Manual ch. 1, pt. A, Introduction (2003) (explaining that the Guidelines were designed to “narrow[ ]” the wide sentence ranges that applied to “similar criminal offenses committed by similar offenders”) with Wash. Rev.Code Ann. § 9.94A.010 (explaining that the Washington Sentencing Reform
Both the Guidelines and the Washington Sentencing Reform Act provide for an increase in a defendant’s sentence beyond that which is authorized by the jury’s verdict or the defendant’s admissions, based upon facts neither found by a jury beyond a reasonable doubt nor admitted by the defendant, but rather found by a judge under the much lower civil burden of proof. In this case, it is undisputed that Koch’s sentence was increased, solely on the basis of facts found by the district judge, to an amount that exceeded the sentence that was authorized under the Guidelines in light of the jury’s verdict. This is precisely what Blakely condemns. Although Blakely addresses only the Washington sentencing scheme, its holding applies with equal force to the Guidelines.
The majority concedes that “[t]he logic of this argument has some force,” but ultimately finds the argument “not conclusive ... because the ‘statutory maximum’ at issue in Blakely arose from a statute, and the Sentencing Guidelines are not statutes.” Maj. Op. at 441. That is a distinction without a difference. I presume that the majority would agree that were the challenged provisions of the Guidelines enacted by Congress in the first instance, they would be unconstitutional under the rule announced in Blakely. I fail to see how the fact that Congress delegated its authority to the Sentencing Commission to set presumptive sentencing ranges saves the federal scheme from constitutional attack. The majority’s holding contravenes and undermines Blakely by allowing Congress to accomplish indirectly — by delegating authority to the Commission — precisely what we now know the Sixth Amendment prohibits it from doing directly-
The congressional delegation of power to the Sentencing Commission does not affect Congress’s authority — and, indeed, its obligation — to ratify the Guidelines. See Ameline,
Furthermore, and perhaps more to the point, neither the outcome nor the reasoning in Blakely turned upon the fact that the Washington Sentencing Reform Act was enacted in the first instance by the state legislature. As Justice O’Connor recognized in her dissenting opinion in Blakely:
It is no answer to say that today’s opinion impacts only Washington’s scheme and not others, such as, for example, the Federal Sentencing Guidelines. The fact that the Federal Sentencing Guidelines are promulgated by an administrative agency nominally located in the Judicial Branch is irrelevant to the*446 majority’s reasoning. The Guidelines have the force of law, and Congress has unfettered control to reject or accept any particular guideline.
Blakely, — U.S. at - - -,
The actual principle underlying the Court’s [Apprendi ] decision may be that any fact (other than prior conviction) that has the effect, in real terms, of increasing the maximum punishment beyond an otherwise applicable range must be submitted to a jury and proved beyond a reasonable doubt. See [Apprendi,530 U.S. at 494 ,120 S.Ct. at 2364 ] (“[T]he relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”). The principle thus would apply ... to all determinate-sentencing schemes in which the length of a defendant’s sentence within the statutory range turns on specific factual determinations {e.g., the federal Sentencing Guidelines). Justice Thomas essentially concedes that the rule outlined in his concurring opinion would require the invalidation of the Sentencing Guidelines. [Id. at 523,120 S.Ct. 2348 ], n. 11.
Apprendi,
I am also unpersuaded by the majority’s reliance upon cases that uphold sentences imposed under the Guidelines against various constitutional challenges. The majority assumes that finding in Koch’s favor would necessarily require us to “anticipate the overruling of Supreme Court precedent,” but that assumption is erroneous. The Supreme Court has never decided the issue presented in this case.
Among the cases cited by the majority, particular emphasis is placed upon Edwards v. United States,
The Court did not opine on the guidelines’ consistency with the amendment because that consistency was not challenged. It did not rebuff a Sixth Amendment challenge to the guidelines because there was no Sixth Amendment challenge to the guidelines.
Booker,
The majority’s reliance upon our Court’s post-Apprendi cases is similarly misplaced. Those cases are simply irrelevant here in light of the Supreme Court’s intervening decision in Blakely, which undermines our prior holdings. See Salmi v. Sec’y of Health and Human Servs.,
Finally, the majority states that “in responding to a request that we invalidate the Sentencing Guidelines, we agree with Judge Easterbrook that ‘[t]his is the wrong forum for such a conclusion.’ ” Maj. Op. at 438 (quoting Booker,
The question remains whether the unconstitutional aspects of the Guidelines are severable from the rest of the Guidelines, an issue on which courts have reached differing results. Just as I would have withheld our decision in this case pending the Supreme Court’s resolution of the applicability of Blakely to the Guidelines, I believe that the decision of whether and to what extent the Guidelines are severable is better left to the Supreme Court. Notably, the issue need not be resolved at all if the Court finds that the Guidelines are unaffected by Blakely.
There is one procedural complication in this case that also must be addressed. The United States argues that Koch forfeited this claim of error by failing to object to his sentence on Apprendi grounds. Accordingly, it argues, we are limited to reviewing the claim for plain error. Fed.R.Crim.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). See also
Plain error exists where there is “1) error, 2) that is plain, and 3) that affects substantial rights. If all three conditions are met, [we] then exercise [our] discretion to notice a forfeited error, but only if 4) the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Johnson v. United States,
First, by imposing a sentence that exceeded the maximum sentence available under the Guidelines in light of the jury’s verdict, based upon facts neither found by a jury nor admitted by Koch, the district court deviated from the holding of Blakely. “Deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v. Olano,
With respect to the second and third prongs, we have held that both “are satisfied when the defendant’s total sentence exceeds the maximum sentence that could lawfully be imposed based upon the jury’s verdict as to all counts of conviction.” United States v. Graham,
Finally, the error affected the fairness of the proceedings. Koch suffered at least the same unfairness that Blakely suffered, for which the Supreme Court had this to say:
Any evaluation of Apprendi’s fairness to criminal defendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment, see 21 U.S.C. §§ 841(b)(1)(A), (D), based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial....
Blakely, — U.S. at -,
For these reasons, I respectfully dissent.
Notes
. The footnote in Justice Thomas's dissenting opinion to which Justice Breyer refers reads as follows:
It is likewise unnecessary to consider whether (and, if so, how) the rule regarding elements applies to the Sentencing Guidelines, given the unique status that they have under [Mis-tretta']. But it may be that this status is irrelevant, because the Guidelines "have the force and effect of laws.”
Id. at 523, n. 11,