Federal
Prosecutors
Running
Scared
in
9th
Circuit,
Ask
Court
to
Reverse
Buckland
Finding
on
Mandatory
Minimums
and
Post-Conviction
Sentence
Enhancements
9/7/01
Three weeks ago, DRCNet (and few others) reported on the 9th US Circuit Court Appeals panel ruling in US v. Buckland, in which the judges struck down both the mandatory minimum sentence provisions and the post-conviction sentence enhancement provisions in the 1984 Controlled Substances Act (http://www.drcnet.org/wol/199.html#apprendicontinues). The ruling in Buckland was the most recent and most far-reaching fallout yet from last year's Supreme Court decision in Apprendi v. New Jersey, which held that sentences extended beyond statutory maximums because of post-conviction findings of fact not subjected to a jury's scrutiny were unconstitutional. Since then, in the first of what threatens to be a wave of cases resulting from the Buckland ruling, whose precedent extends only to the nine states in the 9th Circuit, the appeals court has ruled that the life sentence given a Montana man described in the local press as "one of Billings' most notorious drug dealers" is unconstitutional and he must be re-sentenced in accordance with Buckland. Pedro Hernandez, 43, was convicted on an 18-count marijuana conspiracy indictment with a maximum sentence of 20 years. But because prosecutors in post-conviction hearings held him responsible for two tons of marijuana, his sentence was enhanced beyond the maximum. The 9th Circuit Court found that the sentencing judge expressly instructed the jury that the government didn't need to prove the quantity of drugs involved -- precisely what its ruling in Buckland forbade. Defense attorneys and prosecutors alike view the Buckland decision as a major threat to current federal sentencing schemes. "It does affect thousands of cases, which otherwise could be charged with higher penalties," San Francisco federal public defender Barry Portman told the Associated Press. "This is a big, big deal," echoed Dan Dodson of the National Association of Criminal Defense Lawyers. "It is very important until and unless it is overturned," he told DRCNet. Which is a distinct possibility. The 9th Circuit's reading of Apprendi is in conflict with more restrictive readings in five other circuits. While the other circuits have applied Apprendi to bar sentence enhancements beyond the statutory maximum without a jury's finding of fact, only the 9th Circuit has ruled that the sentencing statutes themselves are so flawed as to be unconstitutional. This contradiction will likely result in a final resolution at the Supreme Court sometime in the future. But federal prosecutors on the West Coast are not waiting for that eventuality. Through a combination of dire warnings and veiled threats, as well as legal action, they have made clear that in their view, Buckland cannot stand. On August 23, the Justice Department and US Attorneys from all nine states in the 9th Circuit formally asked the court to withdraw its ruling of less than two weeks earlier. Press officers for the 9th Circuit clerk of courts office told DRCNet Thursday that the court had not yet acted on the motion. "The panel's decision will seriously hamper the government's ability to prosecute large-scale drug trafficking in this circuit," Justice Department lawyers wrote. "The panel's decision threatens to invalidate countless sentences and will result in a deluge of litigation in the district courts of this circuit." That argument got short shrift from Buckland's attorney, Zenon Olbertz, whom the court ordered to respond to the government's arguments by the end of this week. "I think it's pretty disingenuous to say we should interpret the Constitution based on how much work is involved," he told the court-watching publication The Reporter. If warnings of chaos in the courts aren't enough to sway the judges, the feds apparently think implied threats will work. "In each of the cases in which a court relies on Buckland to impose a sentence below the sentence that would otherwise have been applicable, the United States will consider taking an appeal to this court," blustered J. Douglas Wilson, head of the appellate division of the San Francisco US Attorney's office in a declaration filed as part of his brief. "Thus, every sentence generated by Buckland potentially will generate another appeal for this court." In his declaration, Wilson bemoaned the fact that defendants in all districts were withdrawing from plea agreements, asking for new trials, and appealing their sentences. "Well, yes! Goodness me," responded Portman. "The same thing happened after Apprendi and we don't take the Supreme Court to task," he told the Reporter. The Los Angeles Times, for its part, approved of the Buckland ruling in a recent editorial, calling politicians who complain about rising prison costs and ungodly prison sentences "too gutless" to change the laws themselves. The Buckland ruling should give politicians who claim to want to do something about tempering the laws "the political cover they apparently need," said the Times. (See our earlier coverage at http://www.drcnet.org/wol/147.html#fedstremble and http://www.drcnet.org/wol/150.html#apprendicases and http://www.drcnet.org/wol/151.html#apprendi online.)
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