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The opinion of the court was delivered by: JAMES ZAGEL, District Judge



On 12 May 2004, the defendant entered a plea of guilty to an indictment which alleged that he was "an alien who previously had been deported and removed from the United States on or about May 9, 1991, was present and was found in the United States without previously obtaining the express consent of the Attorney General of the United States for re-application by defendant for admission into the United States, in violation of Title 8, United States Code, Sections 1326(a) and (b)(2)."

  The charge follows the bare statutory language of 1326(a) defining the crime. Congress added subsection 1326(b) to allow for a series of sentence enhancements based on the reasons for any prior removal that increase the 2-year maximum imprisonment set forth in 1326(a). The enhancement invoked in this indictment, 1326(b)(2), provides a 20-year maximum for defendants whose removal was subsequent to a conviction for commission of an aggravated felony. I assume, without deciding, that after United States v. Booker, 375 F.3d 508, 2004 U.S. App. LEXIS 14223 (7th Cir. 2004), the charge would have to allege specifically that removal occurred after an aggravated felony conviction instead of simply reciting a generic violation of 1326(b)(2).

  The United States Sentencing Guidelines provide a base offense level of 8 for a violation of 1326(a) and go on to provide their own list of enhancements that do not mirror precisely the enhancements provided in 1326(b)(2). Two of the enhancements found in 1326(b)(2) involving unlawful entry by aliens returned before their sentences expired or those who were returned as inadmissible aliens are not mentioned in the Guidelines. Instead, the Guidelines offer various levels of enhancement based solely on the nature of the defendant's prior convictions and sentences. The prosecution contended that § 2L.1.2(b)(1)(A) of the Guidelines applied here. This Guideline enhancement adds 16 levels to the defendant's base level of 8 where the defendant had been convicted of a "drug trafficking offense for which the sentence imposed exceeded 13 months."

  In the plea agreement, the defendant admitted that he had been sentenced to five years in prison for possession of a controlled substance with intent to deliver, which is also an aggravated felony within the meaning of 1326(b)(2).


  It is the decision of Blakely v. Washington, 124 S. Ct. 2531 (2004) and the subsequent opinion of our Court of Appeals in Booker that precipitated defendant's motion to withdraw his guilty plea. Booker held that Blakely invalidated much of the approach of the United States Sentencing Guidelines. Booker, 2004 U.S. App. LEXIS 14223 at *6-8. With respect to this case, the holding requires that the government prove beyond a reasonable doubt the facts which would justify the 16-level increase and do so before a jury (unless waived) with evidence that is admissible under the Federal Rules of Evidence. All this is in contrast to the Guideline sentencing which remits the determination of aggravating circumstances to the judge who may accept evidence that would be inadmissible at trial and need only find the circumstances proved by a preponderance of the evidence. Of course, Booker may not hold up, but it is binding upon me now, and I shall follow it. For the little or nothing this is worth, I agree with Booker.

  While early decisions on the retroactive effect of changes of law sometimes limited effective change to cases not yet tried (in one instance to restrict the reach of Miranda v. Arizona), the clear rule now is that change in law applies to cases, such as this one, that have not reached final judgment. Griffith v. Kentucky, 479 U.S. 314 (1987).


  The theory of the motion to withdraw is that the defendant was forced to admit to the facts of his prior conviction. If he had failed to do so, the government could contend that he had not fully accepted responsibility, which would effectively add 3 levels to his final offense total. Of course, I might still have found acceptance of responsibility, but defense counsel could not rely on that outcome.

  Essentially, the defendant's argument is that the decision to concede the enhancement was made with the understanding that he had no alternative because proof of the prior conviction could easily be made with the use of hearsay record evidence under a preponderance of the evidence standard by a decision maker who, unlike a jury, might not decide to exercise lenity. A jury would likely understand that the additional fact would affect sentence and, if the defendant made a good impression, it might decide that conviction of the basic offense was enough. The strategic purpose of refusing to plead under the current sentencing regime would be this: If the juror went for the defendant on this issue, the defendant would reduce, by 16 steps, his offense level. Even if he lost the steps that he might get for acceptance of responsibility after trial, the net gain to defendant is high. In the end, if our guidelines fall as a whole, none of this would make much of a difference. If they fall only as to enhancements, then the strategy would make sense. The prosecution would have to present its prior conviction evidence to the jury under a beyond-a-reasonable-doubt standard, and the defendant would be entitled to argue for acceptance of responsibility before a judge under a preponderance-of-the-evidence standard.

  The practice in this District and others is to give criminal case juries an instruction that they are not to consider the possible sentence during deliberations on guilt or innocence. They are told this is a matter for the court. With the exception of Texas and a few other states, there is a general distrust in all legislatures toward jury sentencing. Illinois abandoned its limited jury sentencing regime a few decades ago. Blakely will override the legislature's preference that defendants be sentenced by judges and, at least, partially restore the jury's role in sentencing.

  The use of the jury in this way would represent a sea change in the federal criminal jurisprudence. Many jurors, and therefore many juries, will understand that they have some power over what the sentence will be. With juror input on sentencing, the effort to achieve relative consistency of sentencing-a goal of the Guidelines-will fail more often than now. Also, legislative criticism of certain judicial sentences will have to be redirected to the actions of American jurors. Even when disapproval of the jury sentencing decision is justified, elected officials will be reluctant to levy it, as such disapproval would be unfair to our citizens who serve on just a single case and from whom much relevant sentencing information is withheld. While a bit of legislative condemnation of sentencing is overheated and unjust, some of it is reasoned, fair and useful. It is true that Congress could enact a ...

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