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Defending federal drug sentencing enhancements, Assistant U.S. Attorney J. Douglas Wilson was forced to run the gauntlet by several judges Wednesday. He likely emerged victorious, but the case heard en banc by the 9th U.S. Circuit Court of Appeals appears much closer than many anticipated. Three judges hammered Wilson for several minutes, while several others indicated they feel an earlier 9th Circuit decision holding the enhancements unconstitutional was wrongly decided. At issue is a federal drug sentencing law overturned last month by a three-judge 9th Circuit panel in U.S. v. Buckland, 99-30285. Under the U.S. Supreme Court’s Apprendi v. New Jersey, 530 U.S. 466, only juries can decide factors which increase a sentence over the statutory maximums. The drug sentencing enhancement law doesn’t explicitly say who decides the enhancements, but the 9th Circuit ruled that Congress intended judges to decide them, and so they were therefore unconstitutional. Recently, several other circuit courts allowed the enhancements to remain by shifting the decision to a jury. The 9th Circuit is the only one that did not. Calvin Buckland challenged his 27-year sentence for possession of methamphetamine, which was enhanced over the 20-year maximum by a trial judge. Since it was decided by the Supreme Court last year, Apprendi has provided the basis for many prisoners to appeal their sentences. If the government loses the appeal, its big mistake will likely be conceding that the 9th Circuit could sever Congress’ intent from the statute. In its place then, would be a different procedure than what Congress intended — a troubling proposition for several judges. “Isn’t that up to Congress and not the courts?” asked Judge A. Wallace Tashima, the author of the three-judge panel’s opinion. “It sounds to me like you’re asking us to rewrite the statute,” said Judge Stephen Trott, who earlier in the hearing seemed as if he sided with the government’s position. “You’re asking us to rewrite the statute, aren’t you?” “You’re severing something that doesn’t appear in the language,” suggested Judge Stephen Reinhardt, who initially cornered Wilson into the concession. Wilson defended himself. “Severing isn’t really the right word to use because there’s no explicit language,” he said. A couple of judges defended the government’s position. “So what? If it’s decided by a jury it satisfies the statute,” said Judge Ronald Gould, reasoning that since the sentencing enhancement provisions don’t say who should decide, a jury could do so without violating the Constitution. Judge Andrew Kleinfeld also joined in, offering that Congress could have talked about requiring judges to handle the enhancements until it was blue in the face, but nevertheless did not write that provision into the law. “If it’s not enacted into law, then why are we talking about severing at all?” Also on the panel were Chief Judge Mary Schroeder and Judges Procter Hug Jr., Diarmuid O’Scannlain, Thomas Nelson, Richard Paez and Richard Tallman. Tallman, considered a moderate, clearly sided with the government, consulting his laptop computer while vigorously questioning San Diego Federal Defender Benjamin Coleman. Coleman argued the constitutional issues which have inflamed the legal community, while Buckland’s regular attorney, Tacoma, Wash., solo Zenon Olbertz, argued other issues. Tallman suggested several laws would be constitutionally questionable under the reasoning of the three-judge panel. “Counsel, if we rule in your favor, doesn’t that call into question at least 40 or 50 other statutes that have a scheme similar to [Section] 841?” Tallman asked. Judge Nelson also appeared amenable to the government’s argument. He got Coleman to acknowledge that he was arguing that the statute is “facially unconstitutional,” under Apprendi. Then Nelson got Coleman to concede that the statute does not explicitly say that a judge is to decide — implying that it isn’t explicitly unconstitutional. “Isn’t that facial?” Nelson asked. “It is overwhelmingly clear that quantity of drugs is meant to be a sentencing factor to be decided by a jury,” Coleman said, later adding, “The fact that there is no specific language … does not mean that Congress had no specific intent.” Judge O’Scannlain offered a compromise. He asked whether the court could reduce Buckland’s sentence to the statutory maximum of 20 years, and otherwise wait until Congress sorts out the mess itself. Coleman said the court could do that. However, if O’Scannlain, one of the court’s more conservative members, refuses to join in deciding any constitutional issues presented in Buckland, it could further cloud the outcome.

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