SENTENCING MEMORANDUM

YOUNG, District Judge.

The unique circumstances of the present case pose this question: "When the parties agree to submit to the jury a factual question central to the defendant's culpability and the defendant secures a partial acquittal, may a judge then subject the defendant to a second round of (judicial) fact finding?" In light of the constitutional bedrock limned above, the answer would seem obvious. It is not.

I. Background

A. The Necessity for This Memorandum

This memorandum is untimely. This First Circuit rightly has criticized district court memoranda filed after the taking of an appeal as "run[ning] a risk of creating an unwelcome appearance of partisanship. [The district court's] writing understandably may be viewed by the appealing party as a quasi-brief, filed as a way of defending the sentence against the appeal." United States v. Martin, 520 F.3d 87, 97 (1st Cir.2008).

I apologize.

Candidly, I had not anticipated the particular circumstances presented here during the preceding six years and consider them highly unusual if not anomalous. As a result, this Court's ruling applied to the narrowest subset of cases. For these reasons, I did not expect this appeal, and while in retrospect I ought have drafted and issued this memorandum before imposing sentence, to do so would have left the defendant languishing in more restrictive pre-sentence detention rather than turning him over to the Bureau of Prisons with its wider array of rehabilitative programs and services, and I thus determined that a prompt sentencing was in the best interests of justice.

Now the government has appealed, as is its undoubted right. If its pre-sentence memorandum, see Gov't's Supplemental Sentencing Mem., ECF No. 75, is any indication, it seeks to use this case to mount a full scale assault on this Court's post-Booker approach to sentencing. This raises the stakes considerably. It is appropriate, therefore, for this Court to demonstrate that its sentence in the present case prescinds from a long and heretofore unchallenged approach to fashioning fair and individualized sentences, that a great deal of thought and research went into this sentence before its imposition, and that it is the peculiar circumstances of this particular case that distinguish it from the mine run of mandatory minimum sentences.

B. Post-Booker Sentencing

Fully to comprehend the narrow question presented here, one first must understand how this Court generally addresses sentencing issues post-Booker. It is an understatement to say that Booker worked a sea change in the law of federal sentencing. Douglas A. Berman & Paul J. Hofen, A Look at Booker at Five, Commentary, 22 Fed. Sent'g Rep. 77 (2009); Nancy Gertner, What Yogi Berra Teaches About Post-Booker Sentencing, 115 Yale L.J. Pocket Part 137 (2006); John C. Richter, Dejà Vu All Over Again: How Post-Booker Sentencing Threatens Equal Justice Under the Law, 20 Fed. Sent'g Rep. 340 (2008); Patrick Schepens, Solomon's Choice: Severing the Mandatory Requirement of the Federal Sentencing Guidelines to Save a System Congress Never Intended, 26 Miss. C.L.Rev. 375 (2006-2007); Jeffery T. Ulmer & Michael T. Light, The Stability of Case Processing and Sentencing Post-Booker, 14 J. Gender Race & Just. 143 (2010); see also, Admin. Office of the U.S. Courts, Report on the Impact of the Booker Case on the Workload of the Federal Judiciary (2006); Steven G. Kalar, Jane McClellan & Jon M. Sands, A Booker Advisory: Into the Breyer Patch, 29 The Champion 8 (Mar.2005). Like my colleagues, I struggled to harmonize the latitude I was afforded by Remedial Booker, see 543 U.S. at 244-65, 125 S.Ct. 738, with the overarching constitutional requirements of Constitutional Booker, see id. at 221-44, 125 S.Ct. 738.1

The approach I ultimately adopted is explained fully in United States v. Kandirakis, 441 F.Supp.2d 282 (D.Mass.2006):

Id. at 318-20 (citations and footnotes omitted).

For more than six years, I have followed this approach to sentencing in every criminal case. In every plea colloquy, I have explored whether the defendant actually admits to the facts undergirding each sentencing enhancement, and in every trial the government has stepped up and sought to prove to the jury each sentencing enhancement by actual evidence beyond a reasonable doubt. In those few cases where a defendant has balked at exposing the jury to evidence of a specific enhancement, e.g., loss calculations or organizer-leader role in the offense, I have readily offered a jury-waived trial with the protections of proof beyond a reasonable doubt upon actual evidence. See, e.g., United States v. Thomas, Criminal Action No. 11-10172 (D.Mass.2012); United States v. Gonsalves, Criminal Action No. 10-10398 (D.Mass.2011).

Without exception, the system has worked smoothly, fairly, and well — until now.2 Most recently, see the report of this Court in Carrasquillo v. United States, 818 F.Supp.2d 385, 390 n. 3 (D.Mass.2011).3

Indeed, it has been a source of pride that Justices Scalia and Thomas have expressly endorsed this approach. See Rita v. United States, 551 U.S. 338, 378 n. 5, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (Scalia, J., joined by Thomas, J., concurring in part, concurring in the judgment) ("At least one conscientious District Judge has decided to shoulder the burden of ascertaining what the maximum reasonable sentence is in each case based only on the verdict and appellate precedent, correctly concluding that this is the only way to eliminate Sixth Amendment problems after Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007)....") (citing United States v. Griffin, 494 F.Supp.2d 1, 12-14 (D.Mass.2007) (Young, J.)).4

Moreover, I have been gratified that the Supreme Court has now confirmed that imposing on the government a "proof beyond a reasonable doubt" standard as to the sentencing enhancements fits comfortably within the discretion of a district judge "to select a specific sentence within a defined range." Rita, 551 U.S. at 352-53, 127 S.Ct. 2456 (citations and quotation omitted).

Not the least of the benefits of relying on jury scrutiny of actual evidence is that the enhanced fact finding that results removes much of the tensions which led this Court to declare the mandatory guidelines unconstitutional as applied even before Blakely, 542 U.S. 296, 124 S.Ct. 2531. Compare United States v. Green, 389 F.Supp.2d 29 (D.Mass.2005) (railing against the oxymoronic mandatory guidelines), rev'd sub nom. In re United States, 426 F.3d 1 (1st Cir.2005), with United States v. West, 552 F.Supp.2d 74 (D.Mass. 2008) (detailing the benefits of advisory guidelines).

On the most practical level, I have learned that guideline sentencing enhancements easily can be folded into the trial, jury instructions, and verdict slip in every criminal case.5 Not once in these six years has the government or the defendant appealed, challenging this Court's approach to sentencing, and the meticulous evidentiary record that necessarily undergirds jury involvement in all factual aspects of the case has fostered a transparency in sentencing that in turn has largely obviated the need to generate time consuming sentencing memoranda — until now.

Important as it may be to understand how this Court goes about sentencing generally, this case is not about determining enhancement under the advisory sentencing guidelines (although I sometimes conflate the two). It is, rather, about the applicability of a mandatory minimum sentence enacted by Congress — a statutory mandate this Court is sworn to obey. It is therefore necessary to say a preliminary word about the statutory framework.

C. The Statute — 21 U.S.C. § 841(b)

The statute involved in this case contemplates three progressively higher sentencing ranges, each dependant upon the proof of additional facts. The first range — the "basic range" — requires proof of possession of crack cocaine with intent to distribute and that the defendant had previously been convicted of a felony drug crime. 21 U.S.C. § 841(b)(1)(C). It carries a statutory maximum sentence of thirty years and no minimum mandatory sentence. Id. The second range — the "quantity enhanced range" — requires proof of possession of 28 grams or more of crack cocaine with intent to distribute. Id. § 841(b)(1)(B). This second range carries a statutory maximum sentence of forty years and a minimum mandatory sentence of five years. Id. The third range — the "quantity-plus-felony range" — requires the same proof of possession of 28 or more grams of crack cocaine with intent to distribute, but also requires demonstration that the defendant had previously been convicted of a felony drug crime. Id. This third statutory range carries a maximum sentence of life imprisonment and a minimum mandatory sentence of ten years. Id.

A jury finding is of course necessary to trigger a sentence above the statutory maximum for the basic range. This is the quintessence of the holding in Constitutional Booker, 543 U.S. at 244, 125 S.Ct. 738, and there can be no dispute about it.

Most circuits have followed the logic of Constitutional Booker to require a jury finding as to drug quantity6 in order to move from the "basic range" to either the "quantity enhanced range" or the "quantity-plus-felony" range. See, e.g., United States v. Gonzalez, 420 F.3d 111, 116, (2nd Cir.2005) (Raggi, Sotomaier, Sack, JJ.). The First Circuit does not, treating the minimum mandatory determination as wholly divorced from the statutory range in which it is found. United States v. Goodine, 326 F.3d 26, 32-34 (1st Cir.2003).

D. Prior Proceedings

The Brockton Police, investigating the suspected drug related activities of a fellow nicknamed "Righteous," secured a search warrant for an apartment located at 10-12 Walnut Avenue, Brockton, Massachusetts. Executing the warrant, the police did not find Righteous but did find 32.02 grams of crack cocaine — and Rodney Gurley ("Gurley").

Indicting Gurley for possession of crack cocaine with intent to distribute, the government sought to hammer him into pleading guilty by threatening to file an information pursuant to 21 U.S.C. § 8517 that Gurley had previously been convicted in the Brockton District Court of possession with intent to distribute a Class B substance. Already facing a serious state charge,8 Gurley had little to lose and would have none of it. The government duly filed the notice pursuant to 21 U.S.C. § 851. Information, ECF. No. 12. Therefore, if Gurley was found to possess 28 grams of crack cocaine or more, he would be subject to a statutory maximum of life imprisonment and a ten year mandatory minimum sentence.

The case proceeded to trial in July 2011, with Gurley's counsel developing the theme that Gurley had "just happened" to be in the apartment to walk a dog when the police initiated their search, and the government (effectively as it turned out) seeking to tie Gurley to the apartment as his place of residence. The parties stipulated that 32.02 grams9 of cocaine base had been found in the apartment during the search, 4.29 grams on a night stand near the bed and three packets of 13.42 grams, 13.55 grams, and .76 grams respectively on a dresser not far away. Tr. Evidence Jury Charge Conference ("Tr. Evidence & Jury Charge Conference") 20:6-21:11, ECF No. 65.

Prior to closing arguments, the Court held a jury charge conference and inquired what enhancements, if any, the government sought. Id. at 154:6-10.

The government responded: "[T]he law as it stands today is that possession with intent to distribute more than 28 ... grams of cocaine base would be a five year mandatory minimum sentence." Id. at 154:11-14.10 The Court therefore proposed incorporating in the verdict slip a special question directly addressing the drug quantity that would trigger a mandatory minimum sentence:

Id. at 156:2-10. The government responded, "Correct." Id. at 156:11.

This is a significant interchange. The Court reasonably understood the government to be agreeing that a jury verdict as to drug quantity was necessary before the Court could impose a mandatory minimum sentence. Moreover, when the Court proposed a special question calling for a direct jury determination of that existential fact, the government answered, "Correct."11

Accordingly, with the approval of both the government, id., and defense counsel, id. at 156:20-24, the final verdict slip read:

Jury Verdict, ECF No. 55.

Likewise, the Court instructed the jury as to Question 2, without objection from the government, in the following manner:

Tr. Closing Args. Jury Instructions ("Tr. Jury Instructions") 60:17-61:17, ECF No. 66.

The jury returned a verdict of guilty. As to the second question, however, whether the drug quantity attributable to Gurley exceeded 28 grams, the jury answered "no." Jury Verdict.

On November 10, 2011, the Court held a hearing to determine Gurley's sentence. Hr'g ("Tr. Sentencing Hr'g"), ECF No. 68. The government there completely reversed itself and argued for the first time that the special question directed to the jury regarding drug quantity impacted only the statutory maximum sentence:

Tr. Sentencing Hr'g 7:21-8:9. The government contended that the special question was asked to the jury for the particular purpose of determining the applicable statutory maximum. Id. Yet not only did the government fail to mention at the jury charge conference the effect of the 28 gram determination on the statutory maximum, but the government also explicitly asserted that the question's purpose was to ascertain whether the mandatory minimum sentence applied. Tr. Evidence & Jury Charge Conference 154:11-14 ("[T]he law as it stands today is that possession with intent to distribute more than 28 ... grams of cocaine base would be a five year mandatory minimum sentence."); id. at 154:25-155:5 ("[The Government: Gurley is] still facing a mandatory minimum sentence. The Court: If they find that it's over —. [The Government]: Twenty-eight grams. The Court: — 28 grams. [The Government]: Yes.").

District judges, of course, do not always put facts determining mandatory minimums to the jury. Nor has any case required judges to do so. In fact, most of the cases implicating mandatory minimums arise when a defendant pleads guilty. E.g., United States v. Colon, 391 Fed.Appx. 890 (1st Cir.2010); cf. United States v. Picanso, 333 F.3d 21 (1st Cir. 2003). Implicit in the case law is the notion that, while not mandatory, district judges may put sentencing "enhancements" to the jury if they deem it proper. Here, this Court chose to do so given the significance of drug quantity both to the mandatory minimum and maximum sentence. Cf. United States v. Garrasteguy, 559 F.3d 34, 36, 44 (1st Cir.2009) (affirming sentence where defendants pleaded guilty to distribution of cocaine base and this Court reserved the issue of drug quantity for a jury trial).

As acknowledged by the government at the jury charge conference the drug quantity in this case controlled the sentencing range applicable to Gurley. Tr. Evidence & Jury Charge Conference 154:11-14, 156:11. Both the proposed mandatory maximum and mandatory minimum would have (and did have) an enormous impact on the length of Gurley's sentence. For this reason, the Court discussed the mandatory minimum with both parties, and all parties agreed to put the drug quantity question to the jury for a determination of the mandatory minimum. Id. at 154:11-14, 156:2-11, 156:20-24.

The Court's procedure, as explained fully in Kandirakis, requires the government to prove to the jury beyond a reasonable doubt each Sentencing Guidelines enhancement that the government will seek to include in the Sentencing Guidelines range calculation if the defendant is convicted. 441 F.Supp.2d at 322. In light of Remedial Booker, however, when finding facts relevant to Sentencing Guidelines enhancements, the Court also considers the pre-sentence report filed by the Probation Office, and any other information produced by the government or the defendant. The Court then makes its own, independent finding on the presence or absence of such enhancements instructed by all the information before it, including the results of the jury deliberation. Id.

The Court's procedure remains consistent with Justice Breyer's opinion in Remedial Booker, interpreting "court" in the Sentencing Reform Act to require "the judge without the jury" to find the facts necessary to an enhancement, rather than "the judge working together with the jury." 543 U.S. at 249, 125 S.Ct. 738. A jury determination on an enhancement issue is merely advisory and this Court continues to make its own, independent findings on all relevant enhancement facts. The Court adopted its procedure, in part, because "[t]he Framers would not have thought it too much to demand that, before depriving a man of [ten] more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to `the unanimous suffrage of twelve of his equals and neighbors,' rather than a lone employee of the State." Id. at 238, 125 S.Ct. 738 (quoting Blakely, 542 U.S. at 313-14, 124 S.Ct. 2531 (citation omitted)).

By failing timely to object, and indeed by presenting the special question to the Court as the means of determining whether a mandatory minimum sentence applied, the government accepted the Court's use of the special question to establish the factual foundation for the statutory range and the mandatory minimum and maximum analysis. See Fed. R.Crim.P. 30(d) ("A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate."). The government both requested and approved the Court's use of the question for the purpose of determining if the drug quantity triggered a statutory range with a higher mandatory minimum sentence, and the jury found that less than 28 grams of crack cocaine were attributable to Gurley.

The government essentially sought a second bite at the apple by arguing at the sentencing hearing that the jury determination on drug quantity addressed only the statutory maximum issue and was "wholly separate" from the mandatory minimum analysis, disregarding the fact that they constitute a statutory range. The Court concluded that the government had waived any objection to its procedures and their legal effect. Nevertheless, the Court requested further briefing from the parties on issues regarding the mandatory minimum sentence and ultimately continued the sentencing hearing for several months. Tr. Sentencing Hr'g 28:6-29:8.

Concluding that the government had waived its objection to this Court's procedures did not, of course, obviate the need to sentence Gurley in accordance with the Sentencing Reform Act and the Sentencing Guidelines. At this juncture the Court's failure to follow its own procedures came back to bedevil it. What I should have done, of course, was set out on the verdict form the drug quantity brackets below 28 grams so that I knew what drug quantity the jury had found to support its guilty finding in answer to question one on the verdict slip.12

Having failed to do so, the Court first advanced the idea that it was bound to sentence somewhere within the lowest guideline quantity bracket. The government properly argued that Gurley had been convicted of possession with intent to distribute, rather than mere possession. Id. at 9:18-10:24. Therefore, the amount could not be negligible, as it would be if the Court found, for example, less than 500 milligrams attributable to Gurley. Id. at 10:22-24. The Court next seized on the idea that the 4.29 grams found on the night stand closest to the bed was the proper amount. The Court's tentative determination was buttressed by defense counsel's statement that a finding of 4.29 grams was "reasonable." Id. at 16.6-9. For the purpose of sentencing, the Court understood defense counsel's statement as an admission that, were Gurley guilty, he was in possession with intent to distribute 4.29 grams of crack cocaine.

Upon reflection following the initial hearing the Court reached the only logical conclusion available: 4.29 grams. The evidence showed that 4.29 grams of crack cocaine were found in a plastic bag on the night stand within arm's reach of where Gurley was sleeping. See id. at 11:16-23; Tr. Evidence & Jury Charge Conference 20:6-12. The evidence showed that three plastic bags of crack cocaine, weighing 13.42 grams, 13.55 grams, and .76 grams, were found on top of the dresser. See Tr. Sentencing Hr'g 12:18-13:19; Tr. Evidence & Jury Charge Conference 20:13-21:6. All together, the amounts totaled 32.02 grams. Thus, the Court reached the only principled conclusion: the drugs on the night stand immediately adjacent to Gurley, 4.29 grams of crack cocaine, were attributable to him.13

The Court reconvened the parties on March 12, 2012, to impose a sentence. Disposition, ECF No. 76. The Court determined that the mandatory minimum sentence of ten years did not apply to Gurley, id. at 2:21-22, and found, that 4.29 grams of cocaine base was attributable to Gurley, Tr. Sentencing Hr'g 15:6-8. On this basis, the Court ultimately determined that the applicable base level was sixteen, the criminal history category was two, and the sentencing range was not less than twenty-four months nor more that thirty months. Disposition 2:23-3:1. The Court entertained argument on where within the range to sentence Gurley, and imposed a sentence of thirty months, the top end of the guideline range. Id. at 5:7-12.

II. The Statutory and Decisional Framework: The Principle of Juror Lenity

I am a district judge sitting in the First Circuit. I owe the utmost fidelity to the Acts of Congress, the decisions of the Supreme Court, and those of the First Circuit. Government waiver aside, I owe a duty to explain that my post-Booker insistence on keeping the jury-front-and-center is fully consonant with the controlling statutes and case law.

The issues presented to this Court are whether the Court "must" apply the ten-year mandatory minimum sentence to the basic sentencing range set out in 21 U.S.C. § 841(b)(1)(C) and whether the principle of juror lenity bears on determinations as to the authorized sentence range.

I answer to the first question in the negative because the statutory range authorized by the jury does not provide for a mandatory minimum sentence. As to the second question, Supreme Court precedent binds this Court to recognize the principle of juror lenity in determining the applicable sentencing range. In doing so, this Court does not abdicate its post-Booker discretion to decide a just sentence based on a fair preponderance of the evidence as counseled by the Sentencing Guidelines. Rather, this Court endeavors to harmonize the principle of juror lenity with the jury's recognized authority to acquit a defendant should a sentencing range appear to it disproportionate.

A. The Court's Discretion in Sentencing Is Bound by the Range of Sentencing Options Prescribed by Congress and the Specific Range Authorized by the Jury

The first issue is whether a district court is required to impose a minimum sentence when none is mandated under Section 841(b)(1)(C).

The statutory length of a sentence is dictated by Congress. United States v. Jones, 674 F.3d 88, 96 (1st Cir.2012) (noting that "Congress — which unlike the judiciary is popularly elected — sets both sentencing policy and the prescribed range of sentences for federal drug crimes"); see Plumley v. Southern Container, Inc., 303 F.3d 364, 374 (1st Cir.2002) (explaining that "it is Congress's mission to set the policy of positive law," whereas a court's role is "to interpret that law"). Congress has the power to enact laws providing for a mandatory fixed-term sentence, which gives no discretion to the judge to individualize punishment, or, by contrast, a sentencing range, which does give discretion to the judge to arrive at a fair sentence based on the particular facts of the case. See Apprendi v. New Jersey, 530 U.S. 466, 481, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (noting that judges' discretion in sentencing "is bound by the range of sentencing options prescribed by the legislature").

Congress has prescribed the sentencing ranges for possession with intent to distribute crack cocaine. See 21 U.S.C. § 841(b)(1)(C) (providing that a person with a prior conviction and found in possession of any quantity of crack cocaine with intent to distribute shall be sentenced within a sentencing range of zero to thirty years imprisonment); id. at § 841(b)(1)(B) (providing that a person with a prior drug felony conviction and found in possession of 28 grams or more of crack cocaine with intent to distribute shall be sentenced within a sentencing range of not less than ten years to life imprisonment). The sentencing range under Section 841(b)(1)(C) does not provide for a mandatory minimum sentence.

Here, the government argues that it would be error to refuse to impose on Gurley a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B). Gov't's Supplemental Sentencing Mem. 11. The government did not dispute, however, that the jury verdict authorized this Court to sentence Gurley within the statutory range under 21 U.S.C. § 841(b)(1)(C), that is, to a maximum sentence of thirty years. Id. at 6 ("In this case, the maximum charge applicable to the Indictment is thirty years, given the language of 21 U.S.C. § 841(b)(1)(C)."). This Court had to decide whether it was within its discretion to use two different statutory ranges when making an independent finding of drug quantity, and in making its finding, whether that finding was consonant with the statutory range authorized by the jury's verdict.

To determine the applicable sentencing range from the statutory options prescribed by Congress, the Court and the government must abide by certain procedural steps.14

The first step: initially determining the applicable statutory range through indictment sentencing is within the government's discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Under 21 U.S.C. § 841 the government may charge the basic range or seek enhancements based on the drug quantity and the existence of a prior felony drug conviction. Jones, 674 F.3d at 96-97 ("[T]he prosecution also had discretion in this case to not seek the mandatory sentence."). Any enhancement increases the maximum penalty, thus under Supreme Court precedent, the drug quantity has to be submitted to the jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (citing Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)); see Booker, 543 U.S. at 232, 125 S.Ct. 738 (holding that the jury must "find the existence of `any particular fact' that the law makes essential to [a defendant's] punishment" (quoting Blakely, 542 U.S. at 301, 124 S.Ct. 2531)).

The decision to prove the quantity enhanced range or the felony-plus-quantity enhanced range, rather than the basic range, involves tactical choices for the prosecution. On the one hand, an enhanced range requires the government to prove more, and on the other, proving a quantity of drugs can trigger a minimum mandatory sentence as well as increase the statutory maximum sentence. Compare 21 U.S.C. § 841(b)(1)(B), with id. at § 841(b)(1)(C). Usually, the verdict slip contains a special question as to the quantity of drugs for the jury to find provided they found the defendant guilty. See, e.g., United States v. Dickerson, 514 F.3d 60, 63 (1st Cir.2008) ("A special verdict form can cure a potential Apprendi problem ... [and] is used to elicit a specific jury finding on drug quantity and type."); United States v. Gomez-Rosario, 418 F.3d 90, 103 (1st Cir.2005) (citing Apprendi, 530 U.S. at 490, 120 S.Ct. 2348); United States v. Wiggin, 429 F.3d 31, 38-39 (1st Cir.2005).

The Court must then determine which applicable statutory range conforms with the jury verdict. Apprendi, 530 U.S. at 484, 120 S.Ct. 2348 (reiterating the Supreme Court's rulings that "due process and associated jury protections extend, to some degree, `to determinations that [go] not to a defendant's guilt or innocence, but simply to the length of his sentence'" (citations omitted)). Because the jury's finding of drug quantity under Section 841(b) triggers the mandatory statutory maximum and minimum sentence, the drug quantity finding, or the absence of such a finding, will guide the judge as to the authorized statutory range. McMillan v. Pennsylvania, 477 U.S. 79, 87-88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (the statute "operate[d] solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it."); accord Harris v. United States, 536 U.S. 545, 563-64, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (confirming the ruling in McMillan which "merely required the judge to impose `a specific sentence within the range authorized by the jury's finding that the defendant [was] guilty'" (citing Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348)); id. at 564, 122 S.Ct. 2406 (noting that the "issue [in McMillan] rose from a provision that a judge's finding (by a preponderance) of visible possession of a firearm would require a mandatory minimum sentence for certain felonies, but a minimum that fell within the sentencing ranges otherwise prescribed." (emphasis added) (quoting Jones, 526 U.S. at 242, 119 S.Ct. 1215)); see Booker, 543 U.S. at 233, 125 S.Ct. 738 ("We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range." (emphasis added)); Apprendi, 530 U.S. at 482 n. 9, 120 S.Ct. 2348 (stating that the judge has discretion to pronounce sentence, "yet not to exceed the limits fixed for what crime is within the allegation and the verdict." (quoting 1 J. Bishop, Criminal Law §§ 948 (9th ed.1923))); id. at 490, 120 S.Ct. 2348 ("It 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." (quoting Jones, 526 U.S. at 252, 119 S.Ct. 1215 (Stevens, J., concurring))); Jones, 526 U.S. at 253, 119 S.Ct. 1215 (Scalia, J., concurring) (same).

Therefore, the Court's discretion in sentencing is bound by the sentencing options prescribed by Congress and the specific range authorized by the jury. Here, as the government has conceded, the jury verdict authorized this Court to sentence Gurley within the statutory range of zero to thirty years imprisonment under 21 U.S.C. § 841(b)(1)(C), which range does not provide for a mandatory minimum sentence. Thus, where a drug quantity specified in Sections 841(b)(1)(A) or 841(b)(1)(B) is neither proved to a jury nor admitted by a defendant, a district court is not required to impose the minimum sentence mandated by those sections even if it may impose that same sentence pursuant to Section 841(b)(1)(C).

B. The Principle of Lenity Applied to Sentencing Ranges

The second issue is whether a jury's finding that determine the length of the statutory maximum sentence may also signal a finding of a greater or lesser degree of culpability.

In the context of sentencing length, the Supreme Court has recognized that juries may devise "extralegal ways of avoiding a guilty verdict, at least of the more severe form of the offense alleged, if the punishment associated with the offense seemed to them disproportionate to the seriousness of the conduct of the particular defendant." Apprendi, 530 U.S. at 480, 120 S.Ct. 2348 (citing Jones, 526 U.S. at 245, 119 S.Ct. 1215); id. at 479 n. 5, 120 S.Ct. 2348 ("This power to thwart Parliament and Crown took the form not only of flat-out acquittals in the face of guilt but of what today we would call verdicts of guilty to lesser included offenses.") (citations omitted).

This recognition is consistent with United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (noting the "recognition of the jury's historic function, in criminal trials, as a check against arbitrary or oppressive exercises of power by the Executive Branch"). In Powell, a jury acquitted the defendant of drug conspiracy and possession counts, but found the defendant guilty of offenses involving the use of a telephone in "committing and in causing and facilitating" the alleged conspiracy and possession. Id. at 59-60, 105 S.Ct. 471. This verdict was inconsistent and Powell appealed. Id. Because inconsistent verdicts "may be the result of [jurors'] lenity, coupled with the Government's inability to invoke review," the Supreme Court held that "the best course to take is simply to insulate jury verdicts from review on this ground." Id. at 66, 69, 105 S.Ct. 471; see United States v. Cianci, 378 F.3d 71, 92 (1st Cir.2004) (refusing to carve out exceptions to the rule in Powell when jury finds inconsistent answers in a special verdict form). In Powell the Court reasoned:

Powell, 469 U.S. at 65, 105 S.Ct. 471. Therefore, a "jury verdict [which] is internally inconsistent ... is essentially unreviewable." United States v. Alicea, 205 F.3d 480, 484 (1st Cir.2000); see Powell, 469 U.S. at 66, 105 S.Ct. 471; Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Lara, 181 F.3d 183, 206 (1st Cir.1999).

The First Circuit has upheld jury verdicts that implicate a lesser degree of culpability in the context of drug quantity enhancements. Gomez-Rosario, 418 F.3d at 104-05. In Gomez-Rosario, the defendant was charged with conspiracy to possess approximately 975 grams of heroin. Id. at 104. The jury found the defendant guilty, yet also found on the special verdict form that the conspiracy involved "less than 100 grams of heroin." Id. In light of the inconsistency, the defendant appealed, arguing that the special question allowed the jury to consider an uncharged conspiracy, which involved less than 100 grams of heroin. Id. The First Circuit was not persuaded by this argument and reasoned that it is "not erroneous per se to allow a jury to find that a defendant is guilty of the crime charged but responsible for a lesser quantity of drugs than that specified in the indictment." Id. at 105 (citing United States v. Ruiz Solorio, 337 F.3d 580, 589-91 (6th Cir.2003)). Therefore, the First Circuit held that "the special verdict form left room for the jury" to find that the defendant "participated in the charged conspiracy but to limit his responsibility to a lower amount." Id. In other words, the resulting verdict imposed a lesser degree of culpability authorized, limiting the defendant's responsibility to a lower amount for sentencing purposes.

In the case at hand, Gurley was convicted of possession with intent to distribute, rather than mere possession. Tr. Sentencing Hr'g 9:18-10:24. The jury verdict, however, exculpated Gurley from any drug amount above 28 grams; therefore, the only drugs which could reasonably be attributable to Gurley under the jury verdict are those found on the night stand within his arm's reach where he was sleeping, id. at 11:16-23, or in the alternative, a negligible amount, id. at 10:22-24. The jury verdict is, of course, consistent with a mere drug possession charge, a charge upon which he was not indicted, rather than the possession with intent to distribute charged by the government.

This Court does not need to resolve this inconsistency in the jury verdict. The jury found a "lower amount," less than 28 grams, thus, limiting Gurley's culpability to the basic range with a zero to thirty year statutory range. See Gomez-Rosario, 418 F.3d at 104-05. Furthermore, in light of Powell and First Circuit law, this Court is bound to assume that the jury sought lenity for Gurley, and "the punishment associated with the offense seemed to them disproportionate to the seriousness" of Gurley's conduct. Apprendi, 530 U.S. at 480, 120 S.Ct. 2348. The result of Gurley's acquittal of the more than 28 gram drug enhancement is "the Government's inability to invoke review," Powell, 469 U.S. at 66, 105 S.Ct. 471, or "otherwise upset[] such an acquittal," id. at 65, 105 S.Ct. 471, and the Court is bound by the Supreme Court's holding that "the best course to take is simply to insulate jury verdicts from review on this ground," id. at 69, 105 S.Ct. 471.

Therefore, applying the principle of juror lenity, this Court is authorized by the jury verdict to apply the basic range of zero to thirty years; the jury having acquitted Gurley of the felony-plus-drug range with its mandatory minimum of ten years up to a maximum of life in prison.

C. The Court Cannot Combine Two Different Statutory Ranges When the Jury Verdict Authorized Only the Basic, While Acquitting Gurley of the Enhanced Felony-Plus-Quantity Range

The government is essentially asking this Court to use its judicial discretion to choose to keep the statutory maximum of thirty years (from the basic range of zero to thirty years under 21 U.S.C. § 841(b)(1)(C)), while imposing a ten-year mandatory minimum sentence from another statutory range (the felony-plus-quantity range of ten years to life in prison under 21 U.S.C. § 841(b)(1)(B)). Gov't's Supplemental Sentencing Mem. 6, 15. Under the very extraordinary factual circumstances presented here, this approach would contradict Harris and allow the Court to sentence from a composite range authorized by neither the statute or the jury verdict.

As a matter of statutory interpretation, a "sentencing range" is a measure of time within specified limits in which a penalty can be imposed, viz., a length of time within a minimum and a maximum number of years. See, e.g., United States v. Colon-Torres, 382 F.3d 76, 80 (1st Cir.2004). The statutory ranges under Section 841(b) are defined in separate subsections and they have been construed as constituting different statutory ranges. Compare 21 U.S.C. § 841(b)(1)(B), with id. § 841(b)(1)(C). The statutory ranges "operate as unified and independent wholes." Gonzalez, 420 F.3d at 115-16. In other words, the minimum and maximum of the statutory range are not independent variables unless the statute allows it. See Harris, 536 U.S. at 550-51, 122 S.Ct. 2406. In the context of Section 841(b), the drug quantity simultaneously triggers both a mandatory maximum and minimum. 21 U.S.C. § 841(b).

Here, the propriety of submitting the drug quantity to the jury is not in dispute. Gov't's Supplemental Sentencing Mem. 6 ("As was noted in the government's original sentencing memorandum, the quantity of drugs which establishes the maximum term of imprisonment is determined by the jury."). Because Gurley was exposed to a penalty exceeding the statutory maximum sentence for the basic range, and any higher sentence was contingent on a finding that he possessed 28 grams of crack cocaine with intent to distribute, this fact "must be found by a jury beyond a reasonable doubt." Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Derman v. United States, 298 F.3d 34, 42 & n. 4 (1st Cir.2002) (finding that Apprendi error had occurred where court did not ask the jury to determine beyond a reasonable doubt whether underlying conspiracy involved a drug quantity sufficient to trigger a sentence higher than the five year statutory maximum).

The First Circuit, however, has declined to hold that sentencing factors are elements of the crime for purposes of Section 841(b).15 Goodine, 326 F.3d at 28; see also United States v. Malouf, 466 F.3d 21, 26 (1st Cir.2006); United States v. Lizardo, 445 F.3d 73, 90 (1st Cir.2006). But see Washington v. Recuenco, 548 U.S. 212, 220, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (Thomas, J., joined by Roberts, Scalia, Kennedy, Souter, Breyer, and Alito, JJ.,) (holding that "the Court has treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt").

In the First Circuit, drug quantity under Section 841(b) is a factor for the purpose of determining the mandatory minimum sentence. Here, however, the distinction between factor and element is irrelevant at this point of the Court's analysis because under Section 841(b) drug quantity determines both the minimum and the maximum statutory range. Goodine, 326 F.3d at 33 ("Apprendi's limitation on punishment beyond the statutory maximum applies regardless of whether the fact is considered an `element' or a `sentencing factor.'" (citing Harris, 536 U.S. at 576, 122 S.Ct. 2406)); accord Harris, 536 U.S. at 576-577, 122 S.Ct. 2406 ("The legislature is free to decree, within constitutional limits, which facts are elements that constitute a crime," however, "[t]his constitutional limitation neither interferes with the legislature's ability to define statutory ranges of punishment nor calls into question judicial discretion to impose `judgment within the range prescribed by statute.'" (citing Apprendi, 530 U.S. at 481, 120 S.Ct. 2348)).

Therefore, this case is distinguishable from Goodine and its progeny. In Goodine, the defendant raised an Apprendi challenge, arguing that the mandatory minimum sentence exceeded the sentencing guideline range. 326 F.3d at 27. The court reasoned that the top end of the sentencing guidelines range was not the equivalent of the statutory maximum, id. at 33, therefore, where the top of the statutory range exceeds the guidelines range, then the statute overrides the guidelines, id. at 33-34 (citing 18 U.S.C. Appx. § 5G1.1 (2002)).

Here, this Court is not presented with an issue of whether the drug quantities under Section 841(b) are elements or sentencing factors, or whether the statutory range exceeds the Sentencing Guideline's range. Rather, this Court had to untangle the issue where the jury has partially acquitted Gurley by entering a verdict for a lesser statutory sentencing range than the range sought to be proved by the government.

The issue in Gurley's case does not involve the Sentencing Guidelines at all. The facts of Gurley's case are also distinguishable from Goodine because, in Goodine, the judge's finding did not simultaneously alter the maximum and minimum penalty. The jury found that Goodine possessed at least five grams of drugs, but less than fifty grams. Id. at 27-28. Due to the defendant's prior record of conviction, he faced a range of ten years to life in prison under Section 841(b)(1)(B). Id. The judge determined, however, that Goodine was responsible for 309.2 grams of drugs, which triggered a sentence of twenty years to life in prison under Section 841(b)(1)(A). Id. There, switching between Sections 841(b)(1)(B) and 841(b)(1)(A) did not alter the statutory range authorized by the jury. Id. at 27 ("Goodine was not sentenced to a penalty greater than that authorized by the jury's findings."); see id. at 31 ("[A] switch from 841(b)(1)(B) to 841(b)(1)(A) does not affect the `substance' of the charge." (quoting United States v. Eirby, 262 F.3d 31, 38 (1st Cir.2001))); Eirby, 262 F.3d at 38 (noting that "the switch did not usurp the prerogative of the grand jury"). There, the First Circuit affirmed Goodine's sentence because it was within the statutory range set by the jury. Goodine, 326 F.3d at 34.

Goodine's holding, however, does not help this Court to solve the issue in Gurley's case. Here, a switch between Sections 841(b)(1)(B) and 841(b)(1)(C) does indeed disrupt the jury verdict and the statutory range, because the Court is asked to use its discretion to combine the mandatory minimum of one statutory range while using the authorized mandatory maximum of another. This switch usurps the prerogative of the jury to authorize the applicable statutory range since the jury acquitted Gurley of the application of the felony-plus-quantity range.16 See Eirby, 262 F.3d at 38.

McMillan and Harris are distinguishable from the case at hand as well. In McMillan, the statute did not "alte[r] the maximum penalty for the crime" but "operate[d] solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it." McMillan, 477 U.S. at 87-88, 106 S.Ct. 2411. Similarly, Harris was a jury waived trial where the statute in question altered only the minimum and authorized incorporating the sentencing minimum (but not a maximum) into the statutory range. 536 U.S. at 550-51, 122 S.Ct. 2406. All statutory minimums were incorporated by statute within the same "life in prison" maximum, thus the judge's finding did not alter the maximum in any way. Id. The statutes in McMillan and Harris are distinguishable, therefore, because they do not create a statutory range different from the range authorized by the jury verdict. In this respect, the Supreme Court carefully carved out the distinction between Harris and Apprendi. Harris, 536 U.S. at 566, 122 S.Ct. 2406 (noting that in each case the facts increasing the minimum sentence were distinct from the facts extending the mandatory maximum). Conversely, in Gurley's case, the same fact (whether 28 grams of crack cocaine were attributable to Gurley) triggers simultaneously both the minimum and the maximum, changing the range authorized by the jury. The Supreme Court in Harris made it clear that it is not the function of the judge to establish the applicable statutory range authorized by the jury verdict. Harris, 536 U.S. at 565, 122 S.Ct. 2406 ("The judge may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from those juries — and without contradicting Apprendi.").

Here, imposing a mandatory minimum in disregard of the jury's verdict that authorized only a lower sentencing range (without such a mandatory minimum), would encroach upon the historical role of the jury to authorize the sentencing range. Furthermore, foreclosing the jury's power to acquit of a greater and drop down to a lesser offence under the principle of juror lenity would raise a constitutional issue because it is a "threat to the jury's domain as a bulwark at trial between the State and the accused." Oregon v. Ice, 555 U.S. 160, 170, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009) ("[T]he scope of the constitutional jury right must be informed by the historical role of the jury at common law."); Booker, 543 U.S. at 233, 125 S.Ct. 738 ("We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range."); Powell, 469 U.S. at 65, 105 S.Ct. 471 (noting the "recognition of the jury's historic function, in criminal trials, as a check against arbitrary or oppressive exercises of power by the Executive Branch").

In conclusion, the application of the mandatory minimum in this case is inappropriate because it erodes the jury's traditional role to establish the sentencing range. In this particular case, the jury verdict would be disrupted, were the Court to impose a ten year sentence as a mandatory minimum because the jury acquitted Gurley of the felony-plus-quantity enhanced sentencing range.

D. Constitutional Avoidance — Double Jeopardy

To ignore the facts found by the jury beyond a reasonable doubt regarding the quantity of drugs attributable to Gurley would also raise serious double jeopardy concerns.

The Double Jeopardy Clause of the Fifth Amendment provides that no person "shall ... be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. For purposes of the Double Jeopardy Clause, jeopardy attaches in a jury trial when the jury is impaneled and sworn. United States v. Toribio-Lugo, 376 F.3d 33, 38 (1st Cir. 2004).

The Supreme Court has held that the Double Jeopardy Clause does not apply at the sentencing stage in a criminal prosecution when a defendant's precise punishment is determined. Monge v. California, 524 U.S. 721, 728, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998); see also United States v. Watts, 519 U.S. 148, 155, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (holding that sentence enhancements are not construed as additional punishment for the previous crime of which the defendant was not convicted; rather, they act to increase a sentence "because of the manner in which [the defendant] committed the crime of conviction"); Witte v. United States, 515 U.S. 389, 403-404, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (holding that the Double Jeopardy Clause did not bar a prosecution for conduct that had provided the basis for an enhancement of the defendant's sentence in a prior case). But see Witte, 515 U.S. at 407, 115 S.Ct. 2199 (Scalia, J., concurring) (noting that there is "no real difference" between "punishing twice for the same offense" and "punishing twice as much for one offense" solely because the defendant also committed another offense, for which the defendant will also be punished).

In Constitutional Booker the Supreme Court briefly addressed the Double Jeopardy Clause and recognized that "[i]n neither Witte nor Watts was there any contention that the sentencing enhancement had exceeded the sentence authorized by the jury verdict...." 543 U.S. at 240, 125 S.Ct. 738. In fact, whether the jury verdict authorized the felony-plus-quantity enhancement resulting in an increase of the sentencing range is the exact issue with which the Court deals in this case. Here, the jury was presented with a choice between two alternatives together with standards to guide their decision. The facts found by the jury beyond a reasonable doubt make clear that the amount of crack cocaine properly attributable to Gurley did not exceed 28 grams.

"Yet once the jury finds all those facts, Apprendi says that the defendant has been convicted of the crime; the Fifth and Sixth Amendments have been observed; and the Government has been authorized to impose any sentence below the maximum." Harris, 536 U.S. at 565, 122 S.Ct. 2406. In other words, the sentence ought remain within the outer limits established by the jury verdict. Were the Court now to ignore the jury finding and itself to find that the amount of crack cocaine attributable to Gurley exceeds 28 grams, it would subject Gurley to a different statutory range than the one authorized by the jury verdict and would constitute an aggravated offense as compared with the offense found by the jury. In light of the jury finding and the heightened procedural protection that necessarily accompanies it, this Court thus determines the Gurley sentencing is distinguishable from traditional sentencing, where double jeopardy provision generally does not apply. See Schiro v. Farley, 510 U.S. 222, 231, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994). Ignoring the limits of punishment established by the jury verdict would constitute a violation of the Double Jeopardy Clause. See Booker, 543 U.S. at 240, 125 S.Ct. 738; see also Carissa Byrne Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, 99 Cal. L.Rev. 47, 59 (2011) (arguing that the principle behind the Double Jeopardy Clause is to prevent multiple attempts to punish for the same conduct).

This Court is well aware of the First Circuit's holding that "drug quantity for purposes of § 841 is a sentencing factor." Goodine, 326 F.3d at 32. This case, however, presents a unique instance where, were the Court to find that the amount of crack cocaine attributable to Gurley exceeded 28 grams, as the government urged, he would be transported into a different statutory sentencing range. In Harris, the Supreme Court explained that "McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are elements of the crime for the purposes of the constitutional analysis," Harris, 536 U.S. at 567, 122 S.Ct. 2406.17 Thus, in the unique circumstances of this case, following the rationale of Apprendi, and for the purposes of the constitutional analysis only, the Court considers the drug quantity attributable to Gurley an element of the crime. Because once the jury finds the elements of the crime, Apprendi holds that the defendant has been convicted of that crime, for a judge then to arrogate to himself the fact-finding function and possibly to find the same element to an aggravated degree by a preponderance of evidence and thus find the defendant guilty of a different crime would constitute a double jeopardy violation.

III. Conclusion

For these reasons, on March 12, 2012, the Court resumed the sentencing hearing, "determined that the mandatory minimum does not apply," Disposition at 2:21-22, and sentenced Gurley to the high end of the applicable guideline — thirty months.

As in any opinion, I have tried — truthfully and accurately — to explain the reasons for the choices I have made. As I pulled this opinion together, however, I was swept with the realization that all this intricate reasoning has but a single goal — the preservation of the direct democracy of the American people through upholding and giving effect to the verdict of one of its juries. It ought not be this complex. Why do it?

This single opinion — narrow and unimportant as it is in the grander scheme of things — may serve as a buoy or failed sea anchor to mark how far we have drifted as a nation from the magnificent conception of the jury given us by the framers.18 "[A] criminal judge sitting without a criminal jury was simply not a duly constituted federal court capable of trying cases, just as the Senate sitting without the House was not a duly constituted federal legislature capable of enacting statutes." Akhil Reed Amar, America's Constitution: A Biography 236 (2005); see Jackie Gardina, Compromising Liberty: A Structural Critique of the Sentencing Guidelines, 38 U. Mich. J.L. Reform 345, 377 (2005); Roger Roots, The Rise and Fall of the American Jury, 8 Seton Hall Cir. R. 1, 2-4 (2011). But see Recent Case, 125 Harv. L.Rev. 1860 (2012). As Thomas Jefferson said so aptly: "I consider [trial by jury] as the only answer ever yet imagined by man, by which a government can be held to the principles of its constitution." Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), in 7 The Writings of Thomas Jefferson 404, 408 (Albert Ellery Bergh ed.1907).

Today, however, we have marginalized the American jury as never before in the history of the republic. Actual fact-finding rarely occurs, so a jury is rarely needed. See George Fisher, Plea Bargaining's Triumph, 109 Yale L.J. 857 (2000). Instead, we have a criminal justice system so rife with charge — and fact — bargaining that the public correctly suspects it has abandoned its quest for "the whole truth." See William Stuntz, The Collapse of American Criminal Justice (2011).19

And what of federal trial judges? Has sending the jury to the sidelines enhanced their moral authority? Brought them to the forefront of criminal case adjudication? Just the reverse. Without juries, judges find their role deconstructed, reduced to little more than insuring that plea procedures are followed and then imposing a largely pre-determined sentence. See Brock Hornby, The Business of the U.S. District Courts, 10 Green Bay 2d 4535 (2007).

Prosecutors run our federal criminal justice system today. Judges play a subordinate role — necessary yes, but subordinate nonetheless. Defense counsel take what they can get.

Perhaps sensing the diminishing role of judges and juries, Congress, acting under article I, has created a host of "judges" to assist the Executive in implementing Congressional mandates. Today, we have administrative law "judges," immigration "judges," military judges, and the like.

Yet, alone among this plethora of perhaps more biddable public officers, only the 678 United States District Judges (and their Senior Judge colleagues) can summon an American jury and call it to its constitutional duty. If we district judges do not defend the American jury at every turn, if we are no longer imbued with the wonder and majesty of direct democracy in action, then truly we have slipped our anchor and are drifting toward a dark and not so distant shore whose contours are beginning to appear.20 See Editorial, The Road We Need Not Have Traveled, N.Y. Times, Apr. 8, 2012, at 10.

It is inexpressibly sad.