The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
Sentencing issues that were routine a mere three months ago now
merit a full opinion. Defendant in this case pled guilty to a
federal offense, use of a communication facility in drug
trafficking, on March 25, 2004. Thereafter, the United States
Probation Office prepared a pre-sentence report. Defense counsel
lodged several objections to the report in early June 2004. On
June 24, 2004, the Supreme Court issued its opinion in Blakely
v. Washington, 124 S. Ct. 2531 (2004), holding that all facts
relevant to the "statutory maximum" sentence must be submitted to
a jury and proved beyond a reasonable doubt. Understandably,
defense counsel levied additional objections to the report based
on the Blakely decision.
A sentencing hearing was held on August 31, 2004. The court
overruled defendant's Blakely objections and imposed a sentence
in accordance with the United States Sentencing Guidelines. This
opinion is in support of those rulings.
Resolution of the objections to the pre-sentence report
requires an examination of the meaning of Blakely and its
effect on the Guidelines. Several district courts within the
Third Circuit have addressed the issue, reaching different conclusions,*fn1 but neither the Court of Appeals nor the
Supreme Court has offered definitive precedential
guidance.*fn2 Nevertheless, the court believes that
Blakely and its predecessors compel one holding: The
constitutional rights recognized in Blakely are both applicable
to and consistent with the United States Sentencing Guidelines.
Only a discussion of defendant's indictment and plea is
necessary to frame the issues sub judice. The original
indictment was filed in September 2003, charging defendant with
conspiracy to distribute cocaine base (crack cocaine) in the area of Lewistown, Pennsylvania. More than eighteen others
were named as co-conspirators. (Doc. 1). Defendant entered a plea
of not guilty. (Doc. 70).
Following negotiations with prosecutors, defendant agreed to
plead guilty to a single offense, use of a communication facility
in drug trafficking, in exchange for dismissal of the other
charges. (Doc. 826 at 5). This offense carried a maximum sentence
of four years imprisonment. See 21 U.S.C. § 843(d)(1). Both
parties understood that the maximum sentence would apply based on
the amount of drugs more than twenty grams of cocaine base
involved in the offense. (Doc. 826 at 4-5). By entering into the
agreement, defendant avoided a potential fifteen-year sentence of
imprisonment to which he was exposed if convicted on all charges.
See 21 U.S.C. §§ 841(a)(1), 846.
The parties executed the plea agreement in February 2004. (Doc.
414). Several provisions expressly affirm that the United States
Sentencing Guidelines will apply at sentencing and that the judge
will have the authority to resolve disputed issues relating to
The defendant, as well as counsel for both parties,
understand that the United States Sentencing
Commission Guidelines . . . will apply to the
offenses to which the defendant is pleading
guilty. . . .
. . . .
16. The defendant understands that unresolved
substantive objections [to material information
provided in the pre-sentence report] will be decided
by the Court at the sentencing hearing. . . .
. . . . 18. At the sentencing, the United States will be
permitted to bring to the Court's attention, and the
Court will be permitted to consider, all relevant
information with respect to the defendant's
background, character and conduct including the
conduct that is the subject of the charges which the
United States has agreed to dismiss, and the nature
and extent of the defendant's cooperation, if any.
(Doc. 414 at 1, 7-8). The agreement fails to specify drug
quantity, presumably because both parties understood that the
offense involved distribution of more than twenty grams of
cocaine base, sufficient to invoke the statutory maximum. (Doc.
826 at 4-5).
A change of plea hearing was held in March 2004. (Doc. 537). As
required by the agreement, defendant pled guilty to one count of
use of communication facility in drug trafficking. During the
hearing, counsel for the government indicated that defendant was
involved in the distribution of a substantial quantity of cocaine
base and that the plea agreement "capp[ed]" his maximum sentence
of incarceration at forty-eight months. Defense counsel and
defendant confirmed the summarization and stated that the
agreement had been entered knowingly and voluntarily.
The court advised defendant of the nature of his right to a
jury trial and proof beyond a reasonable doubt:
You [are] entitled to a jury trial in these matters
in which you through counsel would select a jury
consisting of twelve persons. At the trial the
government would have the responsibility of proving
each and every element of the crime charged against
you beyond a reasonable doubt. And you are presumed
innocent until that burden is met. . . . Any finding
of guilt by a jury would have to be unanimous. That
is all twelve jurors would have to agree.
The court asked whether defendant understood his right to a jury
trial. Defendant responded affirmatively. The court then asked,
"Is it your desire to give up your right to a jury trial and to
enter a plea of guilty to the information?" Defendant responded,
"Yes." The court accepted defendant's guilty plea as knowing and
voluntary. (Docs. 537, 544).
A pre-sentence report was prepared by the United States
Probation Office. The report recounted defendant's several prior
convictions, the factual predicates of the offense to which
defendant had pled guilty, and defendant's involvement in the
larger drug distribution scheme. It also described a search of
defendant's residence, during which an unloaded firearm and
several grams of cocaine base were discovered. It asserted that
the offense to which defendant had pled guilty involved "at
least" twenty grams of cocaine base. Based on this information,
the report proposed a sentence range commensurate with use of a
communication facility in drug trafficking involving more than
twenty grams of cocaine base. It also suggested application of a
sentencing enhancement based on weapons possession.
Defense counsel's initial objections to the report did not
challenge the quantity of drugs involved in the offense; indeed,
counsel characterized as "reasonable" the estimate that more than
twenty grams could be attributed to defendant. (Doc. 826 at
12-13, 15). Instead, the objections addressed the issues of weapons possession and criminal history.*fn3 Defense counsel
asserted that the gun discovered during the search of the
residence did not belong to defendant and that, for this reason,
the enhancement for weapons possession should not apply. Counsel
also claimed that the criminal history presented in the report
included a conviction that defendant did not believe was
"accurate." (Doc. 826 at 10-11). On June 8, 2004, the probation
officer submitted to the court a copy of the report and an
addendum recounting the objections and indicating that the
officer "stood by the pre-sentence report."
A sentencing hearing was scheduled for August 2004. (Doc. 650).
On June 24, 2004, the Supreme Court issued its decision in
Blakely. Four days later, defense counsel submitted additional
objections, arguing that the weapons enhancement could not be
applied under Blakely. One month later, on July 27, 2004,
defense counsel submitted further objections, also premised on
Blakely, contesting the drug quantity for which defendant could
be held accountable for sentencing purposes. (Doc. 826 at 10-17).
The objections asserted that, since these issues had not been
submitted to a jury or proved beyond a reasonable doubt, they
could not be used in computing defendant's sentence. Counsel
asked the court to employ the Guidelines sentence applicable to distribution of a minimal
amount of cocaine base, potentially resulting in a three-year
reduction in the imprisonment range. (Doc. 826 at 15-16).
Neither the government nor defendant produced evidence at the
sentencing hearing, but the probation officer submitted state
court records confirming the convictions indicated in the
pre-sentence report. (Doc. 804; Doc. 826 at 21-22, 29). Defense
counsel repeated the objections noted above, claiming that
Blakely required all facts to be submitted to a jury and
proved beyond a reasonable doubt at a proceeding governed by the
Federal Rules of Evidence. Counsel for the government disagreed.
The prosecution argued, first, that Blakely did not apply to
federal sentencing proceedings under the Guidelines and, second,
that defendant had implicitly admitted to the drug quantity
involved in the offense by executing the plea agreement premised
on application of the maximum sentence. (Doc. 826 at 12, 15-20).
During the sentencing hearing, the court asked counsel a series
of questions regarding their intentions and understandings at the
time of the plea agreement:
THE COURT: I note in the record that there are
references by [the United States Attorney] to an
understanding that the statutory maximum term of
imprisonment that would apply in this case would be
[DEFENSE COUNSEL]: Correct.
THE COURT: Now, prior to the decision that was issued
in Blakely, was that your understanding . . .? [DEFENSE COUNSEL]: Absolutely, and I thought it was a
very favorable plea arrangement for the defendant and
did put a cap on his exposure, and we were agreeing
on that cap. . . . [T]he advantage to the defendant
was the 48-month cap.
THE COURT: All right. And at least that was the basis
on which you advised your client and your client
entered into the plea agreement prior to the Supreme
Court's decision in Blakely vs. Washington.
[DEFENSE COUNSEL]: Absolutely.
THE COURT: Is that also your understanding . . .?
[UNITED STATES ATTORNEY]: Yes, Your Honor. In
negotiating the plea it was the mutual understanding
of both sides that because the drug quantity,
particularly the [cocaine base], would cause the
[G]uidelines to be so high on a small amount, that
capping the plea at 48 months would mean absent
anything else that he would get a 48-month sentence,
because five grams of crack cocaine is 60 months and
the amounts that we were discussing would have been
much more than five grams. So it was the mutual
expectation of the parties that the [G]uidelines
would far exceed the statutory maximum, or at least
exceed the maximum, and that therefore 48 months
would be what we were bargaining for. . . .
. . . .
THE COURT: All right. Well, I think that cleared ...