Start Objecting Again: Guidelines Challenges Are Back in Play
In 2000, the United States Supreme Court handed down its landmark case of Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), which called into doubt sentencing guideline schemes (and presumptive sentencing schemes around the country). Then came the Court’s ruling in United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005), which struck down the mandatory nature of federal sentencing guidelines. See also Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004) (invalidating the State of Washington’s guidelines); Cunningham v California, 127 S Ct 856 (2007) (invalidating California Sentencing Guidelines). For many years, Michigan practitioners unsuccessfully attempted to extend this rationale into Michigan.
The Courts rejected the argument largely relying on the fact that Michigan’s indeterminate sentencing scheme meant that the guidelines only controlled the minimum sentence that an accused was facing (as opposed to the maximum). As a 2012 Michigan Court of Appeals decision explained:
“In People v. Drohan, 475 Mich. 140, 159–164; 715 NW2d 778 (2006), the Michigan Supreme Court held that Michigan's indeterminate sentencing system is not affected by Blakely because a defendant's maximum sentence in Michigan is set by statute and the jury's verdict. Therefore, the holding from Blakely is inapplicable to Michigan's indeterminate sentencing scheme. Id. at 164.”
People v Baker, No. 302784, 2012 WL 1415159 (Mich Ct App April 24, 2012), app den 145268, 2012 WL 4370127 (September 24, 2012). The Drohan ruling is based almost exclusively on the minimum/maximum decision distinction which has its roots in Harris v United States, 536 US 545; 122 S Ct 2406; 153 L Ed 2d 524 (2002).
Harris however was an opinion from a divided Court. Justice Stephen G. Breyer’s vote was necessary for the five votes needed to uphold the scheme. After the ruling, Judge Breyer publicly changed his mind. See United States v Malouf, 377 F Supp 2d 315, 320 (D Mass 2005), rev'd 466 F3d 21 (2006) (noting functional overruling of Harris); United States v Kandirakis, 441 F Supp 2d 282, 299 (D Mass 2006).
The Court has finally agreed to reconsider its ruling in Alleyne v. United States, Supreme Court No. 11-9335. Allen Alleyne was convicted for robbing a convenience store in Richmond, Virginia. His “basic sentence” was enhanced on the theory that he should have known that his accomplice in the robbery would brandish a gun during the robbery. The enhancement was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself.
In the Alleyne case, the accused was convicted of one count of robbery affecting interstate commerce, because the robbery occurred as a store manager was carrying deposits to a bank, and one count of using a gun during a crime of violence. He received a forty-six-month sentence on the robbery charge. (He was also charged Alleyne with brandishing a firearm during the robbery).
Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery, so he had to be punished for that himself. The judge then imposed an added eighty-four months of sentence on top of the forty-six months — as required under the federal law that imposes a mandatory minimum sentence for brandishing a gun.
Alleyne’s lawyer at the trial had conceded that under Harris this enhancement was a legitimate sentencing factor. The attorney, however, mounted a frontal challenge on Harris. Counsel argued that based on Justice Bryer’s change of position in United States v O’Brien, 130 SCt 2169 (2010), the time may have come to revisit the Harris precedent. Without Justice Bryer’s original vote in Harris, the result would have been different.
Alleyne’s petition to the high court squarely argued that “Justice Breyer and the four dissenting Justices in Harris were correct in perceiving the logical and practical inconsistency of the plurality’s position. A strict distinction between maximum and mandatory minimum sentences cannot be reconciled with the rule of Apprendi that the Constitution’s indictment, jury, and proof guarantees apply to all ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’”
Attorneys should absolutely preserve their challenges to the Michigan Sentencing Guidelines based on this new cases. The briefs from the O’Brien case can be found here and are a great place to start. Additionally, Federal Defender Bradley Hall has written a great law review on the subject. B. Hall, Mandatory Sentencing Guidelines By Any Other Name: When Indeterminate Structured Sentencing Violates Blakely v Washington, 57 Drake L Rev 643 (2009). Here is a link to that article:
Here is a link to another law review on this subject which is available for purchase from Lexis.com.While trial courts cannot give the Defendant relief, preserving the issue for direct appeal may give the Defendant’s a wonderful appellate issue.