Here is the opinion issued by Judge Young, D. Mass., holding the federal sentencing guidelines unconstitutional. It's 177 pages long and in parts is brilliant. A lot may depend on how the Supreme Court decides the pending Blakely v. Washington case that was argued on March 23, 2004, challenging the guideline system in the state of Washington on Apprendi grounds.

Carmen D. Hernandez, Esquire
Defender Services Division Training Branch

United States Sentencing Commission home page

Introduction to the Federal Guidelines Sentencing

Sentencing Table
Firearms Sentencing Enhancements table

Complete 2003 USSC Sentencing Guidelines Manual
(Includes chapters 1 - 8, Index, Appendix A - Statutory Index, and Appendix B - Selected Sentencing Statues)

Congressman Sensenbrenner's newest crusade.
H.R.4547, Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004
(Introduced in House)

June 14, 2004

Click this link for complete text

Sensenbrenner is chair of the House judiciary Committee and he was instrumental in the passage of the Feeney Amendment to the Protect Act. This new proposal, like the Feeney Amendment, uses the cover of protecting children to increase sentences and decrease the power of judges and the Sentencing Commission. For example, it would make the sale of any quantity of any controlled substance (including marijuana) by a person older than 21 to a person younger than 18 subject to a 5-year minimum mandatory sentence. The punishment for a second offense of underage marijuana distribution would be mandatory life imprisonment.

The sale of a controlled substance (any type or quantity) within 1000 feet of a school, which now carries a minimum mandatory sentence of one year, would be bumped to a minimum mandatory of 5 years. And the list of facilities near which one may not sell drugs without an enhanced penalty is expanded to include public libraries and public or private day care facilities. It creates 5 and 10-year minimum mandatory sentences for the sale of any quantity of controlled substance within 1000 feet of a drug
treatment facility, which includes any hospital or clinic or other facility that performs any drug treatment function. In short, sale of any quantity of controlled substance (including marijuana) anywhere within about a 4-block radius of County General or the homeless shelter where drug treatment classes meet on the
second floor would draw a five-year minimum mandatory sentence.

Given the number of schools, colleges, hospitals, drug treatment facilities, and public and private daycare facilities in the average town, it is no exaggeration to say that the effect of just the foregoing provisions will be to make distribution (or conspiracy or
attempt to distribute) of any quantity of any controlled substance anywhere in an American city subject to a mandatory minimum five-year federal prison sentence.

It creates new mandatory life sentences without possibility of release for a variety of drug crimes, including virtually any federal drug conviction following two prior felony drug convictions (including prior state felonies). It directly repeals most of the few guidelines provisions that the Commission has managed to pass over the last few years ameliorating the severity of federal drug laws for first-time and low-level offenders (including, for those who follow such things, the minor role cap). It further restricts judicial sentencing discretion (see the proposed amendments to FRCrP 11) and it grants the Justice Department even more leeway to control departures from the guidelines when the Department deems it desirable to do so.

At the moment, the prospects for passage of the Sensenbrenner bill this session are uncertain. The end of the session is near. Nonetheless, Sensenbrenner is the chair of the House Judiciary Committee and controls its agenda. I am informed that the bill may at least achieve committee approval by the end of the summer.

What might happen in the Senate is unknown at the moment; however, even if the Senate is unprepared to approve the bill as a free-standing piece of legislation, the Feeney Amendment demonstrated that bad legislation can become law through the conference process. I am as yet unclear on how this bill should best be opposed but wanted to spread the word of what is lurking out there. If you share my concern and have any ready access to congressmen or senators, I'd urge you to express your views to them. Let the legal community and the judges know this is pending.

David Beneman
Levenson Vickerson & Beneman
P.O. Box 465
Portland, ME 04112
phone:207-775-5200 ext. 104
fax: 207-772-1829

Amendments to the Guidelines Manual

Appendix C, Volume I

Appendix C, Volume II

Proposed Amendments to the 2004 Sentencing Guidelines

PalmOS & PocketPC versions of Guidelines Manual