August 3, 2011
Split Eighth Circuit affirms big sentence increase for girlfriend whose drugs led to boyfriend's OD death
An sad set of facts resulting in an interesting debate in US v. Nossan, No. 10-2502 (8th Cir. Aug. 3, 2011) (available here), about a large federal sentencing increase for a woman who mailed drugs to her boyfriend (at his request). The big debate arises in Nossan because, though the advisory Guidelines range for the defendant's offense of conviction was 10-16 months, the district judge imposed a 60-month sentence because the boyfriend died of a drug overdose using the drugs she had sent him.
The panel majority finds the 5-year sentence reasonable, while Judge Bye in dissent concludes that "while [the boyfriend's] death due to his use of narcotics is surely tragic, [he does] not believe the 44-month upward departure imposed by the district court is reasonable in light of the stark contrast between our relevant case law and Nossan’s limited involvement in this case." (Beyond the specifics of the substantive issue, I also find Nossan interesting because the Sixth Amendment concerns that prompted the Blakely and Booker constitutional rulings do not even garner a mention despite that all sorts of judicial fact-finding was central to the district court's decision to enhance the defendant's sentence here.)
August 3, 2011 at 07:13 PM | Permalink
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Good point, Doug. This is a great example of a case where, as a practical matter, there is little doubt that Fact X had the effect of increasing the actual maximum sentence that the judge was willing to consider. I.e., zero chance she gets 60 months if the boyfriend didn't OD and die. Judge Young in Massachusetts had a great opinion on this, suggesting a procedure for actually complying with the Sixth Amendment. It was probably too much bother to ever catch on, though.
Posted by: Anon | Aug 4, 2011 12:38:15 PM
Did you not read the remedial portion of Booker? The Sixth Amendment WAS complied with in this case, because the Guidelines were only used as advisory. THAT was the Supreme Court's remedy for the Apprendi/Blakely problem of using judge-found facts at sentencing.
I disagree with that remedy, and much prefer the one put forth in Justice Stevens's remedial dissent, but I don't have a vote and neither do you.
Your suggestion that the fashioning of the sentence in this case violated the Sixth Amendment is, so long as Booker stands, flat-out wrong.
Posted by: Bill Otis | Aug 4, 2011 2:53:57 PM
In partial defense of Anon, Bill, I think the point being made in the first comment is that this is one of those (relatively rare?) cases in which it appears almost indisputable that additional extra-verdict/plea judicial fact-finding is driving up the actual/practical sentencing ceiling for this particular defendant. Though you are right that the Booker remedy seems, as a general matter, to make all formal Sixth Amendment problems go away, there is still the reality stressed by Justice Scalia that an as-applied Sixth Amendment challenge might still be viable even after the Booker remedy on the right rights.
Moreover, I think Anon's essential point is one you likely accept: it would be more faithful to spirit of the Sixth Amendment (or at least the spirit of Blakely) to require a jury finding on "causing death" before adding so much to the sentence.
Posted by: Doug B. | Aug 4, 2011 3:06:54 PM
I think more than a partial defense is in order. It is not only consistent with, but arguably follows from, both Booker and Rita that facts significant enough to increase the effective reasonableness ceiling in a given case are facts subject to regulation under Apprendi.
Posted by: Michael Drake | Aug 4, 2011 6:56:38 PM
"...there is still the reality stressed by Justice Scalia that an as-applied Sixth Amendment challenge might still be viable even after the Booker remedy on the right [facts]."
The problem is that Scalia took that view in dissent, and a lone dissent at that. Not even Thomas joined.
"Moreover, I think Anon's essential point is one you likely accept: it would be more faithful to spirit of the Sixth Amendment (or at least the spirit of Blakely) to require a jury finding on "causing death" before adding so much to the sentence."
Spot on, for my money. The problem is that I have spent five years losing that argument.
Posted by: Bill Otis | Aug 4, 2011 8:15:14 PM
I've never heard of a court buying that argument, and I doubt even your pals on the Ninth Circuit would buy it if presented. But if you DO wind up selling it, by all means let me know.
Posted by: Bill Otis | Aug 4, 2011 8:19:25 PM
"I've never heard of a court buying that argument..."
Oh, the courts who've addressed it so far (including the Ninth) have clearly rejected it, if only by means of hand-waiving and tautology. I had merely supposed that you were making a substantive, doctrinal claim rather than appealing to brute, circuit court authority. My bad.
Posted by: Michael Drake | Aug 4, 2011 9:31:23 PM
You crack me up, you really do. It's wonderful how you make a VIRTUE of the fact that the courts don't think the argument you advance worthy even of much discussion, much less view it as persuasive.
I also have to marvel at how breezily you posit a false dichotomy between (1) a substantive argument and (2) an argument adopted by the courts. There are those of us who think that, a goodly portion of the time, they're one and the same.
Finally, being an old hand at arguing in the courts of appeals, I must plead guilty to the charge of "bowing to brute circuit court authority." This was generally considered to be a good way to win cases, albeit not such a good one for winning brownie points on defense-oriented blogs.
P.S. And I'm not pleading guilty because the Nazi prosecutor has stacked charges/manufactured evidence/threatened to indict my wife. I'm pleading guilty for the real reason such pleas are entered: I AM guilty.
Posted by: Bill Otis | Aug 4, 2011 11:08:00 PM
I seem to recall that the 2nd circuit has come close to accepting that argument, at least in the context of New York's recidivist offender statute. Is my memory totally off base on that point?
Posted by: Soronel Haetir | Aug 5, 2011 8:30:24 AM
"I also have to marvel at how breezily you posit a false dichotomy between (1) a substantive argument and (2) an argument adopted by the courts."
I have to marvel at how you conjure straw men. It obviously isn't a "false dichotomy" to point out that legal arguments have substantive merit (or don't) apart from what courts do. I had thought you'd want to exercise your intellectual independence (as you are wont to do when you disagree with what circuit courts do). Again, my bad.
Last word's yours if you want it.
Posted by: Michael Drake | Aug 5, 2011 10:27:47 AM