William Mallory Kent
Attorney at Law
1932 Perry Place
Jacksonville, Florida 32207
904-98-8000
904-348-3124 Fax
kent@williamkent.com Email

APRIL 2004, PRIOR TO THE BLAKELY v. WASHINGTON DECISION, MR. KENT MADE THE FOLLOWING OBJECTION AT SENTENCING FOR A CLIENT IN FEDERAL COURT IN COLUMBIA, SOUTH CAROLINA:

MR. KENT:   What I intended to do, and my thought was this, Your Honor, you know, the Supreme Court has heard oral arguments recently in a case in Washington involving Washington state's sentencing guidelines which are somewhat parallel to the federal guidelines.  And during oral argument, several of the justices made some comments to the effect that if the petitioner's argument in that case was correct, then there may be a constitutional problem with the federal sentencing guidelines regime as well.  And so the law, although it would appear to have been decided by Cotton and the other cases, that the guidelines, that is enhancements in the guidelines, anything other than of course the strict Apprendi rule, that any factor other than a prior conviction that would increase the statutory maximum above what it otherwise would have been has to be pled in the indictment, proved beyond a reasonable doubt, et cetera.  So, that Apprendi rule seems to be decided by Cotton, but this new case just makes me and other defense counsel wonder if the court might revisit this.  And so just purely for the record I would like to put - - I would call it a general blanket objection to the guideline process.  That is, that the court here at sentencing - - by a preponderance of the evidence, or the shifting of burden, you know, everything, without the Sixth Amendment trial rights, et cetera et cetera, I tried to just list seriatim in this notice [I had done a written notice/objection] - - - we don't have those protections and those privileges, and that would be the objection. . . .

 

THE COURT:  And you are referring to the case of Washington v. Blakely?

 

MR. KENT:   Yes, ma'am.

 

THE COURT:   Okay.  So, basically, as I understand it, the Defendant Edwards wishes to preserve his rights under Washington v. Blakely, and any other cases that might come along as a result of that, that the jury should determine beyond a reasonable doubt standard any sentencing factors that enhance a sentence, which are now determined by a preponderance of the evidence by the court at sentencing, and the failure - - - to permit that, and allowing resort to hearsay evidence as well.  And it looks to me like this [my written objection] is sort of a combination Blakely and Crawford versus Washington?

 

MR. KENT:   Well, and it could be many things, Crawford v. Washington as well, because obviously you don't have a - - - the defendant does not have a full right of confrontation at sentencing but does at trial.  Crawford v. Washington, it's not clear what effect that case is going to have.  Does it overrule, you know, Bourjaily? . . . . But here at sentencing we don't have confrontation rights.  And, of course, the court is going to rely upon the evidence that was admitted at trial without full confrontation of the Cory Williams' tape-recording to determine some important features of the sentencing guidelines.    So that would be another example.

 

But I think there are many possibilities here, and we don't have a determination by the jury first, by unanimous determination, you don't have really the full burden on the government, because the burden shifts back and forth at sentencing.

 

We don't have proof beyond a reasonable doubt - - we don't have an indictment, we don't have the grand jury protection, for what that's worth, and on and on.  I think that's - - - we don't have double jeopardy protection.

 

And you think, "Well, what does that mean, Mr. Kent?"  I mean, for example, there may be a determination made here in, quote, sentencing which is going to be in lieu of a trial determination, that then on appeal, on a remand, the sentencing may be opened back up for renewed determination.  Ashe v. Swenson doesn't apply to sentencing, generally, whereas there will be double jeopardy protections if the jury had made a special verdict finding on some particular enhancement, and on and on and on.