The Presentence Investigation Report states at paragraph 3 that "the plea lists a Base Offense Level of 26." In violation of Apprendi and the post report decision in Blakely the report then makes weight findings to reach a level 34. This issue might be moot is we followed the next section of the report which finds a level 34 based upon USSG § 4B1.1 - Career Offender. The report finds that this enhancement also yields a level 34.

The Guideline does state that "if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply." (4B1.1 (b)). Therefore if the level 34 was accurate and in compliance with Blakely et al. the quantity assessment in paragraphs 13 and 14 would be irrelevant.

However, §4B1.1 does not apply in a vacuum. The section relies upon the "Offense Statutory Maximum" as the basis for setting the Career Offender level. For convenience of the Court and counsel, the chart in 4B1.1 is as follows:

[CHART OMITTED]   

This is directly within the express language of Blakely.

This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): "Other 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." (Blakely v. Washington, 124 S.Ct. 2531, 2536 (U.S.Wash. Jun 24, 2004))

This is not a new application of Blakely. If anything is clear in the case it is the fact that drug quantity must be pled and proved. The reason is that drug quantity "increases the penalty for a crime beyond the prescribed statutory maximum". Therefore what is improper in terms of drug sentencing is equally improper in terms of the Career Criminal enhancement when the Career Criminal enhancement is based upon the very statutory maximum calculation barred with respect to the drug offense.

At a level 26 the statutory maximum is 150 months.

[THE BRIEF THEN ARGUES FOR A 3 POINT REDUCTION FOR ACCEPTANCE OF RESPONSIBILITY]

Therefore, the offense level should be 26 minus 3 for an offense level of 23. This gives a Guideline range of 92-115 months.

Dated: September 25, 2004

              __________________________________

                                 Daniel A. Horowitz