Thursday, July 01, 2004
U.S.S.G. Unconstitional. On June 29, Judge Paul G. Cassell (C.D. Utah) held the guidelines unconstitutional in a guilty plea case. US v. Croxford, no. 2:02-CR-00302PGC (June 29, 2004). (Judge Cassell, by the way, clerked for Justice Scalia when he was on the Court of Appeals, and then for Justice Burger.)
He considered three remedies: (1) convene a jury; (2) use the guidelines apart from the defective upward departure provisions; (3) treat guidelines as entirely unconstitutional and pick a sentence between the min and the max. (see pp. 20-29.) He chose the 3d option. Interestingly, and perhaps ironically, in picking the sentence within the statutorily permissible range, the judge made factual findings (grave harm and absconding) by applying the preponderance standard. (see p. 29.) Once he jettisoned the guidelines, the maximum sentence that could be imposed without any fact-finding beyond the facts admitted by the plea was the statutory maximum of 20 years. He was, thus, using the facts regarding grave harm and absconding to determine the sentence within the range permitted by the plea, not to raise the statutory maximum. So no jury trial, no proof beyond a reasonable doubt, and, in fact, no "top" or "lid" to protect the defendant. The court did sentence the defendant to 148 months, slightly below the applicable guideline range of 151-188 months.
Commentary from Sentencing Law and Policy here.