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June 16, 2005

Judge Gertner on drug statute and burden of proof

While I spent Wednesday enjoying Carolina golf, it appears that the circuit courts were also taking a bit of a Booker break (which was well-deserved after Tuesday's Booker circuit mania).  But, joyfully, the ever dynamic Mass US District Judge Nancy Gertner brought some Booker excitement from the district courts through her opinion in US v. Malouf, No. 03-cr-10298 (D. Mass. June 14, 2005).  As usual, Judge Gertner covers so much ground that her Malouf opinion defies summary, but I can note the decision is especially strong on interpreting § 841 charges and applying an enhanced burden of proof.  Here is Judge Gertner's "teaser" in Malouf:

[T]he sentencing of Michael Malouf raises the following questions: (1) Do the drug quantities outlined in 21 U.S.C. § 841 comprise elements of offenses, or sentencing factors? If the former, the relevant case is Apprendi, a jury trial is required and the standard of proof is beyond a reasonable doubt; if the latter, it is Harris, drug quantity can be determined by a judge, and the standard is a fair preponderance of the evidence. (2) What is the continued efficacy of Harris in the light of the Court's rulings in Blakely and Booker? (3) What is a district court to do when the First Circuit’s interpretation of § 841 relies on Supreme Court precedent which predates Blakely and Booker? (4) In the alternative, however the facts are characterized (as sentencing factors or elements), where facts have a significant, indeed determinative impact, does the Due Process Clause of the Fifth Amendment require the application of the beyond a reasonable doubt standard?

Download gertner_maloufsentenmemojune14.pdf

In addition to reading Malouf for answers to these questions, anyone interested in reviewing more broadly some of the modern works of Sentencing Hall of Fame Judge Gertner should explore:

June 16, 2005 at 12:46 AM | Permalink


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Tracked on Jun 16, 2005 1:57:58 AM


While I admire Judge Gertner's work, her analysis of the continued viability of Harris is less than persuasive. It appears to hinge on the idea that SCOTUS was adopting an "impact test" in Blakely and Booker as opposed to the Apprendi's "facts that increase the statutory maximum" test. Her evidence derived from Blakely for that proposition is the statement that the Sixth Amendment requires that all facts "which the law makes essential to the punishment" be found by a jury. (See page 19 of her opinion.) But when the jury verdict authorizes a sentence greater than the mandatory minimum, then all facts essential to the sentence HAVE been found by a jury.

Her reliance on Booker is even less clear, as she fails to quote what portion of it applies an "impact test."

The Court may eventually overrule Harris, but it has neither done so yet, nor given any strong indication that it will.

Posted by: Kevin | Jun 16, 2005 9:27:26 AM

Kevin is absolutely right!! Judge Gertner also seems to ignore the pro-Harris language (or at least the Harris-distinguishing language) in Blakely itself. See 124 S.Ct. at 2538. Some sentencing geeks may think that Harris will/must/should fall, but it is far from dead yet. See, e.g., Spero v. United States, 375 F.3d 1285, 1286 (11th Cir. 2004) (“Whatever other effect the Supreme Court's recent decision in Blakely v. Washington, 542 U.S. ----, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), may have, it does not undermine the validity of minimum mandatory sentences, at least not where the enhanced minimum does not exceed the non-enhanced maximum. That much is clear from the fact that Blakely, like Apprendi, explicitly distinguished minimum mandatory sentences from the circumstances involved in those cases and indicated that McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), is still good law.”).

This opinion is particularly unfortunate because some members of Congress may exploit Judge Gertner’s overreaching to inflict more damage on the sentencing system – damage that Judge Gertner will be unable to creatively reinterpret.

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