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The 9th U.S. Circuit Court of Appeals doesn’t want to be the lone ranger on mandatory minimum sentences. Reversing an earlier ruling that had thrown federal prosecutors into a panic, an en banc panel of the court ruled 8-3 Friday that the federal mandatory minimum statute remains constitutional — notwithstanding a recent U.S. Supreme Court decision that had thrown it into some doubt. The 9th Circuit had been the only federal appellate court to strike down the law. Nine other circuits had ruled the other way, a fact not lost on the author of Friday’s majority opinion, Judge Stephen Trott. “Our decision … results in felicitous unanimity among the United States Courts of Appeal,” he noted. That drew a rebuke from dissenting Judge A. Wallace Tashima, author of the earlier three-judge panel ruling that had declared the law unconstitutional. “While ‘felicitous unanimity among’ the courts of appeals may be a laudable goal, ‘conformity for its own sake is neither necessary nor desirable for the courts of appeal. …’ ” Tashima wrote, quoting a 7th Circuit opinion. The appeal in United States v. Buckland, 02 CDOS 498, was set in motion a year and a half ago, when the U.S. Supreme Court issued Apprendi v. New Jersey, 530 U.S. 466. That ruling struck down a hate crimes statute because it permitted a trial judge to increase a sentence beyond the statutory maximum if the judge found by a preponderance of the evidence that the crime was motivated by bigotry. The Court ruled that any fact, other than a prior conviction, used to lengthen a sentence beyond the maximum must be determined by a jury, beyond a reasonable doubt. At the time, Supreme Court Justices Sandra Day O’Connor and Stephen Breyer warned in dissenting opinions that the decision could have severe consequences for other sentencing schemes. Although the mandatory minimum statute, 21 U.S.C. 841, doesn’t state explicitly who should act as finder of fact, federal courts all over the country have assumed it was up to the judge. So when Calvin Buckland was convicted for possessing and dealing methamphetamine, a federal judge in Washington state determined that Buckland was responsible for nearly eight kilograms and sentenced him to 27 years in prison. On appeal, Judge Tashima picked up where O’Connor and Breyer left off. His ruling for the three-judge panel not only threw out Buckland’s sentence, it declared the mandatory minimum statute facially unconstitutional. The decision infuriated prosecutors, who said it would undermine thousands of plea bargains and “severely disrupt the courts of this circuit.” All 14 U.S. Attorneys in the 9th Circuit called on the court to reconsider its ruling. On Friday the court did change its mind, but it wasn’t easy. To begin with, Trott had to reject the government’s argument for upholding the statute. Assistant U.S. Attorney J. Douglas Wilson had argued that the court should “sever” the part of the statute that deals with who should determine the enhancement. The court could then uphold the remainder of the statute. But, as Trott and other judges had noted at oral argument, there is no such discussion in the statute, so there’s nothing to sever. “We respectfully suggest that the government’s severance ‘solution’ is as errant as Buckland’s attack,” Trott wrote. It is the courts, not the statute itself, that have assigned judges the responsibility for determining enhancements, Trott wrote. Therefore, the statute itself is constitutional. Buckland cannot “mount a facial challenge to � 841 by first asking us to change the face he purports to attack,” Trott wrote. Trott was joined by Chief Judge Mary Schroeder and Judges Diarmuid O’Scannlain, Thomas Nelson, Andrew Kleinfeld, Ronald Gould and Richard Tallman. Judge Procter Hug Jr. issued a separate concurrence that joined in all but a small portion of Trott’s opinion. In his dissent, Tashima challenged the notion that the statute isn’t clear on who should determine the enhancements. If that’s the case, he asked, why have all the circuits decided that it should be judges? “Congressional intent is clear, and the majority’s attempt to avoid it carries its opinion to the point of judicially rewriting � 841,” he wrote. Tashima pointed to the 9th Circuit’s own decision in U.S. v. Nordby, 225 F.3d 1053 (2000), which held that Congress “clearly intended that drug quantity be a sentencing factor, not an element of the crime under � 841; the statute is not susceptible to a contrary interpretation.” Trott’s majority opinion acknowledged “the tension between our position here and that expressed in Nordby,” and overruled Nordby. During the 1990s, the 9th Circuit received unwanted attention for a slew of reversals by the U.S. Supreme Court. O’Connor has suggested in the past that the court take more cases en banc to rein in the more extreme positions. Friday’s ruling appeared to be such an instance. Underscoring that his decision put the 9th Circuit back in the mainstream, Trott cited decisions from nine other circuits that upheld the statute, including even an unpublished opinion from the 1st Circuit. That didn’t sway Tashima, who was joined in dissent by Judges Stephen Reinhardt and Richard Paez. “The majority has ‘end[ed] our status as an outlier,’ ” Tashima wrote, again quoting the 7th Circuit, “ but at the price of ignoring congressional intent that every other circuit has acknowledged to be clear and ignoring basic tenets of statutory construction recently applied” by the U.S. Supreme Court.

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