Mutt: I’m looking for my quarter I dropped. Jeff: Did you drop it here? Mutt: No, I dropped it two blocks down the street. Jeff: Then why are you looking for it here? Mutt: Because the light is better here! Jeff: [question mark hovers over head]. It has a point, the question mark hovering over Jeff’s head: Why orient your search to where the light is better, as opposed to where you’re more likely to find what you want? And yet it appears that some circuit courts, faced with the question of whether a district court may contradict affirmative jury findings that appear to limit the court’s sentencing discretion, have looked where “the light is better” – i.e., where there is an abundance of very familiar, sort-of-but-not-really-on-point precedent – rather than the obscure corner where the answer lies. Not so the Ninth Circuit.
Mr. Pimentel-Lopez was convicted of possession of methamphetamine with intent to distribute and conspiracy to possess with intent to distribute. With the consent of both parties, the district court gave the jury a verdict form that allowed it to check a box indicating that it unanimously found, beyond a reasonable doubt, that the quantity of meth involved was “[l]ess than 50 grams.” The jury checked that box. But when it came time to sentence Mr. Pimentel-Lopez, the district court found that the amount of drugs involved was four and a half kilograms, pegged his Guidelines offense level to that quantity, and sentenced him within the resulting Guidelines range. The district court believed it was entitled to do this pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and its copious progeny, which generally authorize district courts to find facts that do not increase the statutory sentencing range. A number of circuit courts have likewise believed that the Apprendi line of cases authorize this type of sentencing decision. But Apprendi, the Ninth Circuit held, was “beside the point.” This was not a case in which the jury made no quantity finding at all, or merely failed to find a higher quantity beyond a reasonable doubt: This was a case in which the jury made an affirmative finding, “under the highest standard of proof known to our law,” that the quantity was less than 50 grams. “District judges have many powers,” the Ninth Circuit observed, “but contradicting juries as to findings of facts they have been asked to make is not among them.” The court vacated Mr. Pimentel-Lopez’s sentence and remanded the case “with instructions that [he] be resentenced on the premise that the quantity of drugs involved in his crimes was less than 50 grams, as the jury found.”
Small moral: Consider asking for verdict forms designed to solicit jury findings that would limit the district court’s sentencing discretion. Big moral: Beware the pull of the jurisprudential “well-lit corner.” The key to your case just might be lying quietly in the dark, awaiting your flashlight.
(Congratulations to Timothy M. Bechtold, Bechtold Law Firm, PLLC, Missoula, MT)
(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona)