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United States v. Sheppard

United States District Court, W.D. Missouri, Western Division

December 15, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
BRYAN E. SHEPPARD, Defendant.

          ORDER

          Fernando J. Gaitan, Jr. United States District Judge

         Currently pending before the Court is the Government's Motion for Discovery Schedule for Sentencing Hearing (Doc. # 521); Sheppard's Motion and Amended Motion to Correct Sentence in Light of Apprendi and Jones (Doc. # 522, 524); Sheppard's Motion Requesting that 1997 Base Offense Level Calculation Be Declared Unconstitutional and Recalculated (Doc. # 523) and Sheppard's Motion for Hearing (Doc. # 529).

         I. Motion to Correct Sheppard's Sentence in Light of Apprendi & Jones[1].

         On August 25, 2014, the Court granted Sheppard's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to the Supreme Court's decision in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012) holding that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.'” Sheppard was born on March 5, 1971, thus he was 17 years and 8 months old on November 29, 1988, the date of the crime. Sheppard argues that his conviction is not final until after he is resentenced and therefore, his sentence must be corrected in light of the Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Sheppard argues that in these cases the Supreme Court determined 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.” Id. 530 U.S. at 489. Sheppard argues that he was sentenced to term of life imprisonment without the possibility of parole even though the jury was not instructed that it must find beyond a reasonable doubt that his conduct directly and proximately resulted in death. Sheppard argues that “[s]ince ‘death' was not included in the instructions nor found by the jury to have been the proximate result of death the only sentence allowed now may not exceed ten (10) years.” (Motion to Correct, p. 7). Sheppard argues that:

At his sentencing in 1997, Judge Stevens sentenced Bryan Sheppard to life. The sentence was not based on a finding made by a jury beyond a reasonable doubt. Instead, it was based on the Judges' finding that the arson was the proximate cause of death. Judge Stevens made this finding by a preponderance of the evidence. The jury was not permitted to deliberate on the very facts that were then used to aggravate the sentence from a maximum of ten (10) years to a maximum of mandatory life in prison. Therefore, the Court must vacate the unconstitutional sentence, and enter a sentence, consistent with the law.

(Motion to Correct, p. 9).

         In response, the Government argues that “[t]he defendant's motion completely ignores the record of this case which included a signed waiver by the defendant of ‘any right we have to any jury determination on the sentencing in this case and consent to sentencing by the court.'” (Government's Response, p. 1). The Government also states that the identical issue based on Apprendi and Jones was raised in defendant's original §2255 petition and was rejected by the Court. The Government points to the portions of the trial transcript where Bryan Sheppard waived his right to be sentenced by a jury:

Mr. O'Connor: Yes, Your Honor, at this time, on behalf of Bryan Sheppard, we are going to waive the jury sentencing and leave it with the Court. I believe Mr. Bryan Sheppard has been previously under oath and I would just ask him if he agrees with my decision to waive jury sentencing and leave the sentencing with His Honor, Judge Stevens.
Do you agree with that, Bryan Sheppard?
Defendant Bryan Sheppard: Yes, I do.
The Court: I would be more comfortable if you would say, Mr. Sheppard, and it is up to you, not that it was Mr. O'Connor's decision but you made the decision based on his recommendation, is that correct?
Defendant Bryan Sheppard: Yes. . . .
The Court: I had one more question I wanted to ask Mr. Bryan Sheppard. Do you understand, Mr. Sheppard, that there are no constraints or restrictions or parameters on the potential sentencing the Court might assess in this ...

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