September 2, 2011

A Man's Cleverness Reduces His Sentence By 14 Years: The Ninth Circuit, Apprendi, and Pleading Open

Stacy Hunt - a man with multiple prior convictions, who attempted to pick up a package of drugs at an airport in Alaska, flipped on others involved in the drug deal, then fled to California where he was rearrested - appears to have outsmarted the United States Department of Justice and a federal district court judge.

The case is United States v. Hunt, from the Ninth Circuit.

To see how Mr. Hunt was clever, you need to understand two rules of federal criminal law.

First, 21 U.S.C. S 841(a)(1) prohibits possessing drugs with the intent to distribute. The statute prohibits possessing any controlled substance - it doesn't get specific as to the type of drug.

The statutory maximums for section 841(a)(1) for the different kinds of drugs are set out at 841(b). The language is a bit baroque, but, basically, if you violate section 841(a) for possessing cocaine, the statutory maximum is 20 years. If you violate section 841(a) for possessing a Schedule V drug - like codeine , the maximum is 1 year. See section 841(b)(3).

So, to be clear, the first thing you need to know is that the statutory maximum penalty for possession with intent to distribute depends on the kind of drug involved. If it's codeine, the statutory maximum is one year: if it's cocaine, the statutory maximum is twenty-years.

Second, the Supreme Court of the United States held, in Apprendi v. New Jersey that,

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Mr. Hunt was charged with a violation of 21 U.S.C. S 841(a). He fired his lawyer and handled his case himself. He told the court that he wanted to enter a guilty plea - which is his right. He pled guilty to attempting to possess with intent to distribute a controlled substance.

Every plea has to have a factual basis for the judge to accept it - that is, the judge has to make sure that the person pleading guilty admits facts that meet each and every element of the crime.

Here's how the Ninth Circuit recaps the conversation that the court had with Mr. Hunt to make sure he admitted that he violated section 841(a):

First, in response to the court's inquiry regarding the elements of the offense, the Assistant United States Attorney (AUSA) stated that the government would need to prove at trial that Hunt "attempted to possess a parcel that contained a little over a kilogram of cocaine . . . and that he did so knowingly." Hunt stated that he understood those elements. After a few moments passed, the AUSA stated that he forgot to include the element that "Mr. Hunt attempted to possess that cocaine with the intent to distribute it thereafter." Hunt responded that he understood that additional element.

The court then restated the elements of the offense as follows: "So you attempted to possess cocaine, you knew it was cocaine or some illegal drug, and you did it with the intent to distribute. I guess those are the three elements, okay?"(emphasis added). Hunt replied, "To those elements, yes, I agree." Hunt then asked that the government state the elements one last time. The AUSA responded that the government would have to prove that "Mr. Hunt attempted to possess a parcel which contained a little over a kilogram of cocaine [and] . . . [w]e'd have to prove that Mr. Hunt's attempt to possess that cocaine was done knowingly and then we'd have to prove that he intended to distribute that cocaine after coming into possession of it." Hunt replied, "Yes I understand those elements. As far as the specific amount, I don't have personal knowledge of it . . . as I never opened the package and weighed it, but I do accept responsibility for whatever it was."

After the government stated the facts it expected to prove if the case were to proceed to trial--including that Hunt was found in possession of a package of over 500 grams of cocaine and later admitted that he had ordered the drugs in a written statement--Hunt said, "For the most part, the facts are true. I admit all the elements of 841(a)(1), and also as I said, I did not receive the package and open it, so I have no specific knowledge of what it contained other than it did contain a controlled substance, that I do know, and I did attempt to possess that controlled substance." Hunt also confirmed that he had intended to sell or give away the controlled substance. The court then asked the government, "That sounds sufficient, doesn't it, counsel?" The AUSA agreed that Hunt's admission was sufficient to supply a factual basis for the offense, and the court accepted Hunt's plea.

The presentence report determined that Mr. Hunt's crime involved cocaine. Accordingly, the presentence report found that the statutory maximum was 20 years.

The sentencing court adopted this finding, and determined that a 20-year statutory maximum applies to Mr. Hunt.

Mr. Hunt objected to this determination, and he had this exchange with the sentencing court:

HUNT: Also, when I made my objections, which has been overlooked, I also objected on the grounds that I did not at plea colloquy admit to a specific type of controlled substance, and I only agreed that I attempted to possess a controlled substance.

THE COURT: Right.

HUNT: Not crack, cocaine, or marijuana, or anything like that. I only agree to a Schedule II -- not even a Schedule II. I only agree to a controlled substance. So are you also making a finding for the type of drug also?

THE COURT: Yes, okay.

HUNT: So I'd like to make sure that my (indiscernible) objection is in for not just quantity but also as to type of drugs. And my position is that I should fall back to marijuana for no remuneration, with a statutory max of five years [sic], up -- under (b)(1)(D).

THE COURT: Very well. Boy, you're smart. You've made your record, but I -- you haven't changed my mind.

HUNT: Okay, that's fine.

The sentencing court heard evidence as a part of the sentencing proceeding. Folks testified that the drugs were cocaine. Mr. Hunt was sentenced on the assumption that the statutory maximum is 20 years. The court gave him a sentence of 15 years in prison.

On appeal, the Ninth Circuit found that the district court's sentence is not consistent with Apprendi. Because Mr. Hunt did not admit that the controlled substance was cocaine, rather than, say, codeine, and no jury found that the drugs were cocaine, the statutory maximum cannot be more than one year. As the Court held, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

Mr. Hunt's sentence was vacated, and the Ninth Circuit remanded the case with instructions to sentence Mr. Hunt with a statutory maximum of one year.

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