Criminal Justice Section  


Criminal Justice Magazine
Winter 2004
Volume 18 Number 4

Heatwole: A Test Case for Sentencing Sanity

By Mark H. Allenbaugh

Mark H. Allenbaugh, an attorney in private practice with offices in Washington, D.C., and California, is a former staff attorney with the United States Sentencing Commission and currently serves as cochair of the Federal Sentencing Guidelines Committee for the National Association of Criminal Defense Lawyers. The views expressed here are his own. He can be reached at

Nathaniel Travis Heatwole, the 20-year-old college junior charged in U.S. District Court in Baltimore with violating 49 U.S.C. § 46505(b)(1) for carrying “concealed dangerous weapon[s]” aboard an aircraft, is being hailed as a hero by some for exposing significant security lapses at two international airports. While acknowledging the illegality of secreting box cutters, knives, matches, bleach, and “a simulated plastic explosive” aboard aircraft on at least six different occasions, according to Heatwole, such actions constituted “act[s] of civil disobedience with the aim of improving public safety for the air-traveling public.” Heatwole, however, faces up to 10 years in prison and a $250,000 fine for his noble criminality. Although there is little chance he will serve such a long term, under the Federal Sentencing Guidelines, he still faces significant time behind bars.

Given Heatwole’s altruistic motives, many commentators called on the government to decline prosecuting him; in fact, some members of Congress—Rep. Nancy Pelosi (D-Cal.) and Rep. Ed Markey (D-Mass.) to name a few—called on the federal sentencing judge to impose a lenient sentence with no prison time.

Such pleas for leniency, especially from members of Congress, who recently voted in favor of legislation restricting and even eliminating the ability of federal judges to impose sentences below those called for in the guidelines, ring hollow. If Heatwole does end up in prison, he can thank those in Congress who now claim such acts should only result in a sentence of community service.

The Heatwole case exposes far more than security problems at our nation’s airports; it also exposes a deeply flawed sentencing regime, one involving a battle between the three branches of government over which one is best-suited for imposing sentences.

Feeney Amendment

Last spring, Congress passed and the president signed into law the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No.108–21. The general thrust of PROTECT was to provide funding for Amber Alert—programs aimed at quickly and widely alerting the public when a child is abducted—and to increase penalties for sex offenses involving children. However, surreptitiously inserted into the Act at the last minute, and with virtually no public debate, was a provision known as the “Feeney Amendment,” sponsored by Rep. Tom Feeney (R-Fla.). This amendment had nothing to do with protecting children from pedophiles and everything to do with Congress’s mistaken dissatisfaction with the federal judiciary over sentencing.

In addition to greatly circumscribing the authority of federal judges to depart below otherwise applicable sentencing guidelines for certain sex offenses, the amendment required the U.S. Department of Justice (DOJ) and the U.S. Sentencing Commission to develop policies and procedures to substantially reduce the incidence of downward departures in sentencing for all offenses. The message was clear: Despite the fact that many federal judges are former federal prosecutors and required to follow strict Federal Sentencing Guidelines as well as mandatory minimum terms of imprisonment, and despite the fact that there are now more prisoners incarcerated in the federal system than in any single state’s system, the legislative and executive branches believe that the judiciary was still too soft on crime, departing downward too often.

About the guidelines

Congress created the United States Sentencing Commission, an independent agency within the judicial branch, in 1984 to promulgate presumptively mandatory sentencing parameters to guide the discretion of federal judges when imposing prison terms. Studies had shown that similarly situated offenders were receiving significantly disparate sentences. In order to minimize the incidence of unwarranted disparities, as well as to ensure proportionality and certainty in sentencing, Congress charged the commission with promulgating and amending the guidelines.

The guidelines assign specific weight to a variety of factors relevant to determining the seriousness of the offense by taking into account the nature of the offense, the harm caused by the offense, the culpability of the offender, and the offender’s criminal history. Once each of these factors is calculated, a specified range of months of imprisonment is determined. With limited exceptions, the sentencing judge is required to sentence the offender to a prison term within that range.

Congress recognized, however, that it is impossible to take into account every relevant factor when sentencing an individual. Accordingly, it built provisions into the guidelines that permit judges to depart below or above the guidelines’ sentencing range when there exist mitigating or aggravating factors that have not been taken into account. The problem that the Feeney Amendment poses for Heatwole is that federal prosecutors are now under strict orders from U.S. Attorney General John Ashcroft to ensure that as many aggravating factors as possible are taken into account by the sentencing judge. At the same time, prosecutors must strongly discourage any downward departure by the sentencing judge. Indeed, according to the terms of the legislation, prosecutors now are required to report to the DOJ those federal judges who depart downward without the blessing of the prosecutor. The DOJ will then report them to Congress. In short, federal prosecutors now are under orders to maximize the term of imprisonment and intimidate federal judges into not departing downward.

Not surprisingly, this has stirred up a hornet’s nest in the federal judiciary. The Judicial Conference for the United States Courts recently issued a press release supporting legislation that would repeal the Feeney Amendment. U.S. Supreme Court Chief Justice Rehnquist and Justice Kennedy both publicly questioned the wisdom of the amendment, and several district and circuit court judges have issued what only can be called protest opinions regarding the legislation. Judge Paul Magnuson of the U.S. District Court of Minnesota recently wrote:

This reporting requirement system accomplishes its goal: the Court is intimidated, and the Court is scared to depart. The reporting requirement has another, more invidious effect. Although the Court has a high regard for the Assistant U.S. Attorney who prosecuted this matter, there will be other cases in which the prosecutor will misuse his or her authority. Due to the requirement of reporting departures that is now in place, Courts are no longer able to stop that abuse of power. The reporting requirements will have a devastating effect on our system of justice which, for more than 200 years, has protected the rights of the citizens of this country as set forth in the Constitution. Our justice system depends on a fair and impartial judiciary that is free from intimidation from the other branches of government. The departure reporting requirements constitute an unwarranted intimidation of the judiciary.

( United States v. Kirsch , ___ F. Supp 2d ___, 2003, WL 22384760 (D. Minn. Oct. 17, 2003).)

Judge Roger P. Patterson, Jr., of the U.S. District Court for the Southern District of New York was even more direct: In their latest attack on the third branch of the government, Congress not only attempted to restrict the ability of trial judges to impose fair sentences based on the particular facts presented in each case, but also . . . require[s] that the Department of Justice report to Congress all cases in which the trial judge departs from the guidelines in non-cooperation cases. Evidently, Congress sought to deter any departures by the implicit threat to trial judges that, if they are considered for appellate positions, they will be subjected to the type of demeaning and unseemly treatment which nominees to the courts of appeals have undergone at the hands of Congress in recent years. The requirement that such departures be reported to Congress overlooks the obvious fact that trial judges are more qualified to determine a proper sentence than the Assistant U.S. Attorneys making the reports. U.S. Attorneys already have immense power in the criminal justice process under the Sentencing Guidelines. In plea agreements, prosecutors determine what offenses are charged and what facts are stipulated. “Given that over 90 percent of federal criminal cases are the result of plea agreements, the plea negotiation process essentially has become a sentencing negotiation.” (The Champion, June 2003, at 8.) Trial judges have many more years of experience in sentencing, both under the United States Sentencing Guidelines and prior thereto, than the Assistant U.S. Attorneys (AUSA). Each trial judge sentences far more defendants in a year, than an individual AUSA prosecutes. Thus, the report on departures required by Congress are by a party less competent, less familiar with, and less involved in the difficult decisions which the sentencing judge must make under the Guidelines to perform the traditional role of an independent, fair, and just arbiter. If, as a result of Congress’ increasing pressure to eliminate any departures from the Guidelines, trial judges’ sentencing decisions do not comply with the basic tenets of fairness and justice, the confidence of our citizens that the courts play an independent and fair role in the dispensation of justice will be diminished or lost. Then our system of justice will be regarded as subservient to the other branches of government—the system that prevailed for so many years behind the Iron Curtain.

( United States v. Kim , ___, F. Supp. 2d ___, 2003, WL 22391190 (S.D.N.Y. Oct. 20, 2003).)

If these protests were not enough of an indication of the judiciary’s disgust, at least one federal judge resigned last summer because he no longer wanted to be “a part of a sentencing system that is unnecessarily cruel and rigid.” Judge John S. Martin of the Southern District of New York added, “I no longer want to be part of our unjust criminal justice system.”

Making the case for reform

The Heatwole case presents a particularly compelling need for reform. Under 49 U.S.C. § 46505 there are two charging offenses: The first is a general criminal offense that provides up to 10 years’ imprisonment for boarding an aircraft with a concealed dangerous weapon; the second is an aggravated form of the same offense, providing up to 15 years’ imprisonment for committing the crime “willfully and without regard for the safety of human life, or with reckless disregard for the safety of human life.”

On the face of it, Heatwole would appear lucky—the government has charged him with the general offense that carries a lighter sentence. In fact, he’s not lucky at all. Although “reckless disregard for the safety of human life” is an element of the aggravated form of the offense, it can , under the guidelines, be used as a sentencing factor for the general offense to increase his sentence to 15 years. The “reckless” element need only be proved by a preponderance of the evidence. By charging Heatwole with the less-serious offense, the government can ensure that he is sentenced as if he had been convicted of the aggravated version without having its burden of proof rest on the “reckless” element.

The central concern for Heatwole is whether the sentencing judge finds that the crime was committed “willfully and without regard for the safety of human life, or with reckless disregard for the safety of human life.” Without such a finding, Heatwole could receive probation, as long as he accepts responsibility for his conduct. However, he clearly acted willfully, so the question turns on whether he acted “without regard” or with “reckless disregard.” If the Ashcroft memoranda are any indication, the government is likely to advocate strongly in favor of this enhancement.

If the enhancement applies, then Heatwole’s sentencing range increases from 4–10 months to 51–63 months. If he accepts full responsibility, his sentencing range could be decreased to 37–46 months. To get anything less would require a downward departure; to be eligible for straight probation would require a significant departure. Under the PROTECT Act, departures are now reviewed de novo, so the greater the departure, the more vulnerable it becomes on appeal.

There are at least two grounds for a downward departure for which Heatwole appears eligible. One is that he “commit[ed] a crime in order to avoid a perceived greater harm” and that his “conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue.” (U.S. Sentencing Commission, Guidelines Manual, § 5K2.11 (Nov. 2003).) After all, in enacting 49 U.S.C. § 46505, Congress certainly did not have in mind conduct such as Heatwole’s. Other potential grounds are that he voluntarily disclosed his offense, has accepted responsibility for it, and that it is unlikely it would have been discovered but for his disclosure. ( See U.S.S.G. § 5K2.16).

There are, to be sure, grounds for upward departures. The court could find that Heatwole’s conduct significantly endangered public safety or disrupted a governmental function because every commercial airliner had to be checked for hidden weapons. Should the court decline to enhance Heatwole’s sentence by finding he acted in “reckless disregard” for human safety, the prosecution could, and probably will, urge an upward departure. ( See U.S.S.G. § 5K2.7).

Blakely granted cert

All may not be lost, however, for Heatwole and rational sentencing. On Oct. 20, 2003, the U.S. Supreme Court granted certiorari to Blakely v. Washington , 47 P.3d 149 (Wash. App. 2002). At issue in Blakely is whether a judge may depart above a specified guideline range—in this case Washington State’s statutory sentencing guidelines—based upon a fact that was not proved to a jury beyond a reasonable doubt or pled to by the defendant. The Court must decide whether facts that increase a sentence beyond that already specified by sentencing guidelines should be treated as elements of the offense, or they can remain simple sentencing factors that need not be alleged in the indictment, pled to, or proved to a jury.

If the Court decides that such factors should be treated as elements, then there is an argument that the aggravating factor in Heatwole’s case—reckless disregard for the safety of human life—or any factor supporting an upward departure, must be treated as an element, and therefore may not be used simply as a sentencing factor. Both Blakely and the Heatwole case present the question as to whether it violates due process to use an element of an aggravated form of an offense as a sentencing factor when sentencing a defendant for the nonaggravated form of the offense. If it does, then prosecutors will have less power over the sentencing process because they will be required to prove what are currently only treated as sentencing enhancements. And judges will have more of their discretionary power restored.

Given the federal judiciary’s anger over the intrusion by Congress and the executive branch onto their sentencing turf, Blakely might signal the bench’s attempt to take back that which they lost to the PROTECT Act.

As North Dakota’s federal district Judge Rodney S. Webb recently stated,

[T] he pendulum for sentencing within the criminal justice system has moved too far to the right in favor of harsh sentences. We must adopt sentencing goals beyond retribution and deterrence. Our current system costs too much and we are in danger of losing a substantial portion of a whole generation of young men to drugs as their futures rot within our prisons. A society can be tough on crime without being vindictive, unjust, or cruel. We must encourage flexible and innovative sentencing such as drug courts, drug treatment and supervised probation as an alternative to prison. Change is hard, but change is not impossible. Judges and others involved in the criminal justice system must speak out against unjust and unwise mechanisms of justice such as strict guidelines and mandatory minimum sentences. The Feeney Amendment can be changed by appealing to our congressional delegation. Perhaps this opinion, as an appeal for a restoration of individualized sentencing, will provoke some thoughtful discussion on these important issues and help restore the traditional sentencing discretion of the district courts usurped by the legislative and executive branches of our government.

( United States v. Dyck , ___, F. Supp. 2d ___, 2003; WL 22383486 (D.N.D. Oct. 16, 2003).)

It can only be hoped that  those members of Congress who voted in favor of the Feeney Amendment now will understand what they have wrought and wisely vote in favor of legislation repealing its provisions.


Will Blakely Be the Next Apprendi ?

In granting certiorari to Blakely v. Washington , 47 P.3d 149 (Wash. App. 2002), the U.S. Supreme Court may be signaling its readiness to go to the next step to halt the erosion of the judiciary’s sentencing discretion that started with the PROTECT Act of 2003 and has continued with the U.S. Department of Justice’s revisions to charging and plea agreement policies and changes by the U.S. Sentencing Commission to downward departure sentencing policies under the Federal Sentencing Guidelines.

The defendant in Blakely pled guilty to one count of second degree domestic violence kidnapping, with a deadly weapon enhancement, and one count of second degree domestic violence assault. In exchange for the plea, the prosecutor agreed to recommend a prison term at the high end of Washington State’s sentencing guideline range of 49–53 months. The trial judge, however, rejected the government recommendation and departed upward, imposing an “exceptional” sentence of 90 months’ imprisonment based upon the deliberate cruelty of the offense and the fact that it was committed in the presence of a minor.

At issue in Blakely is whether a court may sentence an offender above the maximum term established by the applicable sentencing guidelines as opposed to maximum terms established by statute. Should the Supreme Court rule that facts triggering upward departures must be treated as elements of an aggravated form of the offense, the impact on sentencing guidelines jurisprudence could result in significant and much-needed fundamental change.

It was thought that the issue was settled three years ago in the landmark decision of Apprendi v. New Jersey , 530 U.S. 466 (2000). There the Court demarcated the constitutional limits to be imposed on legislatures when drafting criminal penalties, when it held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

At issue in Apprendi was New Jersey’s hate-crime enhancement statute, which allowed a court to sentence an offender above the statutory maximum term upon finding that the offense was motivated by racial animosity. The Supreme Court held that such an enhancement violated the Sixth Amendment’s notice provision.

According to Apprendi, the mechanism triggering the enhancement must be treated not as a simple sentencing factor—determined by the sentencing judge based on a  preponderance of the evidence (which can  include otherwise inadmissible evidence)—but as an element of an aggravated form of the offense, which must either be pled to or determined at trial by a jury using only admissible evidence. Apprendi precludes legislation that permits or requires that defendants be sentenced as if they had been convicted of an aggravated offense when, in fact, they had not. And it provides a check on the state and federal mandatory minimum sentencing schemes and guidelines that often bind judges at sentencing.

Unfortunately, the Court’s attempt to clarify its decision in Apprendi only muddied the waters when it employed ambiguous language, stating “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” The question that state and federal courts, practitioners, academics, and defendants have grappled with is how to interpret “prescribed range.” Read literally, it appears that Apprendi would apply to facts triggering mandatory minimum penalties. Pertinent to Blakely , it would apply to facts used to depart upward from the applicable sentencing guidelines range.

A plurality of the Court addressed the mandatory minimum question recently in a sort of “Apprendi II.” In Harris v. United States , 536 U.S. 545 (2002), the Court confronted its prior holding in McMillan v. Pennsylvania , 477 U.S. 79 (1986), which upheld the constitutionality of treating facts triggering mandatory minimums simply as sentencing factors. Straining to avoid overruling McMillan, the plurality held that Apprendi does not apply to mandatory minimum penalties that involve firearms offenses. This is based on the accidental manner in which the applicable statute was written: Pursuant to 18 U.S.C. § 924(c)(1)(A), facts triggering mandatory minimum sentences for firearms offenses do not also increase the statutory maximum sentence. Because Apprendi was concerned with facts that increased the statutory maximum, and those facts that triggered the mandatory minimum penalties for firearms offenses did not, the plurality reasoned that Apprendi was distinguishable and McMillan remained good law. However, five members of the Court “logically [could not] distinguish the issue here from the principles underlying the Court’s decision in Apprendi .” Although one of the five, Justice Breyer still disputed the validity of Apprendi (in which he dissented), concurring with the plurality in Harris as to its conclusion. Whether Apprendi applies to facts triggering mandatory minimums in the context of other offenses, such as drug trafficking, where the statutory minimum and maximum penalties change depending on the amount and type of drug involved, is not yet settled.

In contrast to Harris, Blakely addresses directly the impact of Apprendi on sentencing guidelines. If the Court holds that facts triggering upward departures must be treated as elements—as the language of Apprendi clearly supports—then it is a short step to arguing that facts enhancing a sentence under sentencing guidelines also should be treated as elements. After all, an upward departure is premised on an aggravating factor that has not been taken into account by the sentencing guidelines, and an enhancement is a factor that has been taken into account by the guidelines. For purposes of Apprendi , the difference appears immaterial. Even if Blakely applies Apprendi only to facts triggering upward departures, it still will go a long way toward placing needed limits on legislatures and prosecutors. Blakely , thus, offers the Court a third opportunity to ensure that an appropriate balance of sentencing power is retained among the three branches of governments.

Mark H. Allenbaugh

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