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September 15, 2004.


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.

  I. Procedural Background

  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 sentencing:
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 48 months.
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 ...

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