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The case slipped under the public’s radar, but certainly not the court’s. Last month, the 9th U.S. Circuit Court of Appeals effectively did away with mandatory drug sentence enhancements. The huge victory for opponents of mandatory drug sentences, which the 14 U.S. Attorneys in the 9th Circuit are united in trying to reverse, has thrown drug sentencing into turmoil. It is the first hornet to escape from the sentencing nest kicked over by the U.S. Supreme Court’s Apprendi v. New Jersey, 530 U.S. 466. Led by Judge A. Wallace Tashima, a divided three-judge panel not only overturned Calvin Buckland’s 27-year sentence for dealing methamphetamine, but ruled that the statutes under which he was sentenced — which set both sentencing minimums and maximums — are unconstitutional. In doing so, the 9th Circuit has thrown itself into conflict with five other courts, and stands aligned with none. It is also precisely the type of outcome alluded to by Justices Sandra Day O’Connor and Stephen Breyer in their Apprendi dissents. Speaking for all federal prosecutors in the West, the U.S. Attorney’s office in San Francisco is trying to get the case reversed and made a promise to the 9th Circuit that borders on a threat. “In each of the cases in which a court relies on Buckland to impose a sentence below the sentence that would otherwise have been applicable, the United States will consider taking an appeal to this court,” wrote J. Douglas Wilson, head of the office’s appellate division, in a declaration filed along with his petition for rehearing. “Thus, every sentence affected by Buckland potentially will generate another appeal for this court.” In U.S. v. Buckland, 01 C.D.O.S. 6857, the court ruled that Buckland’s sentence was unconstitutional under Apprendi because the trial judge made findings of fact at the sentencing stage that increased Buckland’s sentence above the statutory maximum. Under Apprendi, such determinations are to be made by the jury. But then the 9th Circuit took an additional step no other court has yet made. Since judges have traditionally been the ones to make those determinations under the sentencing statute (which is mum on whether a judge or a jury should decide), and under Apprendi they cannot, the 9th Circuit tossed the statute itself. And according to Wilson’s declaration, the result is chaos. He wrote that disputes in front of magistrates over how to advise defendants on their prospective sentences have “unduly extended and complicated routine arraignments.” He wrote that defendants in every district are withdrawing from plea agreements, moving to dismiss indictments and asking for new trials. And he wrote that Buckland is flourishing in the appeals of those already convicted, and that every district in the 9th Circuit has seen defendants raise Buckland in connection with their sentencing. To which Barry Portman, federal public defender, replies: “Well, yes! Goodness me!” “The same thing happened after Apprendi, and we didn’t take the Supreme Court to task,” Portman said. University of California’s Hastings College of the Law Professor Rory Little wonders how long Buckland will be law in the 9th Circuit. “I have to say, on this one the 9th Circuit is just plain wrong,” said Little, who is teaching the case at Hastings. “This case will be reversed, sooner or later.” Portman believes some of the panic about the case is much ado about nothing. “The fact that the mandatory minimum is now gone doesn’t alter the [sentencing] guidelines,” Portman said. “Unless you have a downward departure, you’re going to end up with pretty much the same sentence you would have had before Buckland.” Nevertheless, the government immediately appealed the case and is taking the rare step of asking the court to vacate the opinion while it considers granting an en banc hearing, which many expect. Wilson argues that the sections struck down by the 9th Circuit clearly state Congress’ intent to provide enhanced punishment for what are deemed more serious drug offenses. Furthermore, he wrote, Apprendi only outlines the procedures to be followed when implementing those statutes. It does not overturn their intent. “It is no exaggeration to say that if left in place the panel decision will severely disrupt the courts of this circuit,” Wilson wrote. “Thousands of defendants have been sentenced under the provisions that the court held unconstitutional, and the court’s decision gives them substantial incentive to challenge their sentences by whatever procedural method they can find.” Buckland’s lawyer, Zenon Olbertz of Tacoma, Wash., has been ordered to reply to the government’s brief by Thursday. It is probably one of the most important briefs to opponents of mandatory sentences to come along in a long while. Olbertz did not think much of the government’s position. “I think it’s pretty disingenuous to say we should interpret the Constitution based on how much work is involved,” he said.

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