04-3092 U.S. v. Paulus

Listen to this article

“From 1998 to 2000, the time period in which Paulus engaged in the criminal conduct at issue, there was little doubt about the constitutionality of the mandatory guideline sentencing regime. See Edwards v. United States, 523 U.S. 511, 516 (1998); Mistretta, 488 U.S. at 412. So the question as to whether Paulus’s sentence violated principles of due process boils down to whether he could have been sentenced to 58 months under that regime.

“The answer, of course, is yes. Indeed, the district court painstakingly calculated the 58-month sentence pursuant to the Guidelines, even as it noted that, should Blakely preclude mandatory application of the Guidelines, the court ‘would still be free to look to them as guidance in fashioning a fair and just sentence[.]’ Paulus, 331 F. Supp. 2d at 733. The court’s sentence was based on provisions of the Guidelines authorizing upward departures for the number of bribes accepted, the amount of money received, and a significant disruption of a governmental function. U.S.S.G. §§ 2C1.1(b)(1), 2C1.1(b)(2), 5K2.7. Concerning the latter, under the mandatory guideline regime, the court was allowed to take judicial notice of the fact that public confidence in Wisconsin’s justice system had been undermined. See United States v. Shenberg, 89 F.3d 1461, 1477 (11th Cir. 1996). The facts underlying the former two grounds for departure — 22 bribes in all, and $48,050 in total bribe money — were admitted in Paulus’s Factual Basis for Plea. This undercuts Paulus’s argument that Blakely capped his sentence at 33 months under the Guidelines, but that argument fails for an even more obvious reason: decided in 2004, Blakely is simply irrelevant to this due process analysis. As we have said, the question of whether Paulus had ‘fair notice’ of the punishment his conduct would merit must necessarily be focused on the state of sentencing law from 1998-2000, the time Paulus’s crimes were committed. At that time, the departure could have been made based on judge-found facts under the preponderance of the evidence standard.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Kanne, J.