From: rshea@netcom.com (rex)
Date: Fri, 31 Jan 1997 17:12:09 -0800 (PST)
To: unicorn@schloss.li
Subject: Re: If guilty of a lesser crime, you can be sentenced for a greater
In-Reply-To: <Pine.SUN.3.94.970109173741.707A-100000@polaris>
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Black Unicorn <unicorn@schloss.li> wrote:

>If you want to look at it a different way, if you are involved with a drug
>offense and are not using a weapon, you'll get a lower sentence than a
>full fledged drug crime.  It's a step in the right direction - i.e. away
>from manadatory sentencing of a flat time period for a crime regardless of
>circumstances.

But Putra got the same sentence she would have gotten had she been
convicted on both charges. The fact that she was acquitted meant nothing.

UNITED STATES v. VERNON WATTS
UNITED STATES v. CHERYL PUTRA
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 95-1906.  Decided January 6, 1997

  Per Curiam.

In these two cases, two panels of the Court of Appeals for the Ninth
Circuit held that sentencing courts could not consider conduct of the
defendants underlying charges of which they had been acquitted.
United States v. Watts, 67 F. 3d 790 (CA9 1995) (-Watts-); United
States v. Putra, 78 F. 3d 1386 (CA9 1996) (-Putra-).
[...]
Because the panels' holdings conflict with the
clear implications of 18 U. S. C. 3661, the Sentencing Guidelines,
and this Court's decisions, particularly Witte v. United States, 515
U. S. ___ (1995), we grant the petition and reverse in both cases.
[...]

  Justice Stevens, dissenting.

  The Sentencing Reform Act of 1984 revolutionized the manner in
which district courts sentence persons convicted of federal crimes.
Burns v. United States, 501 U. S. 129, 132 (1991). The goals of
rehabilitation and fairness served by individualized sentencing that
formerly justified vesting judges with virtually unreviewable
sentencing discretion have been replaced by the impersonal interest
in uniformity and retribution.
[...]

                     II

  The issue of law raised by the sentencing of Cheryl Putra involved
the identification of the offense level that determined the range
within which the judge could exercise discretion.  Because she was a
first offender with no criminal history, that range was based
entirely on the offense or offenses for which she was to be punished.
She was found guilty of aiding and abetting the intended distribution
of one ounce of cocaine on May 8, 1992, but not guilty of
participating in a similar transaction involving five ounces of
cocaine on May 9, 1992.  United States v. Putra, 78 F. 3d 1386, 1387
(CA9 1996).  If the guilty verdict provided the only basis for
imposing punishment on Ms. Putra, the Guidelines would have required
the judge to impose a sentence of no less than 15 months in prison
and would have prohibited him from imposing a sentence longer than 21
months.

  If Putra had been found guilty of also participating in the 5 ounce
transaction on May 9, 1992, the Guidelines would have required that
both the minimum and the maximum sentences be increased; the range
would have been between 27 and 33 months.  As the District Court
applied the Guidelines, precisely the same range resulted from the
acquittal as would have been dictated by a conviction.
Notwithstanding the absence of sufficient evidence to prove guilt
beyond a reasonable doubt, the alleged offense on May 9 led to the
imposition of a sentence six months longer than the maximum permitted
for the only crime that provided any basis for punishment.

  In my judgment neither our prior cases nor the text of the statute
warrants this perverse result. And the vigor of the debate among
judges in the courts of appeals on this basic issue belies the ease
with which the Court addresses it, without hearing oral argument or
allowing the parties to fully brief the issues.
[...]

  Even more than Williams, this Court, like all of the Circuits that
have adopted the same approach as the District Courts in these cases,
relies primarily on the misguided five-to-four decision in McMillan
v. Pennsylvania, 477 U. S. 79 (1986). For the reasons stated in my
dissent in that case, id., at 95-104, I continue to believe that it
was incorrectly decided and that its holding should be reconsidered.
Even accepting its holding that the Constitution does not require
proof beyond a reasonable doubt to establish a sentencing factor
that increases the minimum sentence without altering the maximum,
however, there are at least two reasons why McMillan does not dictate
the outcome of these cases.

  In McMillan, as in these cases, the defendant's minimum sentence
was enhanced on the basis of a fact proved by a preponderance of the
evidence. But in McMillan, the maximum was unchanged; the sentence
actually imposed was within the range that would have been available
to the judge even if the enhancing factor had not been proved. In
these cases, however, the sentences actually imposed were higher than
the Guidelines would have allowed without evidence of the additional
offenses. The McMillan opinion pointedly noted that the Pennsylvania
statute had not altered the maximum penalty for the crime committed
and operated solely to limit the sentencing courts' discretion in
selecting a penalty within the range already available to it without
the special finding of visible possession of a firearm. Id., at
87-88. Given the Court's acknowledged inability to lay down any
`bright line' test that would define the limits of its holding, id.,
at 91, and its apparent assumption that a sentencing factor should
not be allowed to serve as a tail which wags the dog of the
substantive offense, id., at 88, see also ante, at 7, n. 2, the
holding should not be extended to allow a fact proved by only a
preponderance to increase the entire range of penalties within which
the sentencing judge may lawfully exercise discretion.
[...]

  In my opinion the statute should be construed in the light of the
traditional requirement that criminal charges must be sustained by
proof beyond a reasonable doubt. That requirement has always applied
to charges involving multiple offenses as well as a single offense.
Whether an allegation of criminal conduct is the sole basis for
punishment or merely one of several bases for punishment, we should
presume that Congress intended the new sentencing Guidelines that it
authorized in 1984 to adhere to longstanding procedural requirements
enshrined in our constitutional jurisprudence. The notion that a
charge that cannot be sustained by proof beyond a reasonable doubt
may give rise to the same punishment as if it had been so proved is
repugnant to that jurisprudence.