United States District Court, W.D. Missouri, Western Division
Fernando J. Gaitan, Jr. United States District Judge
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).
Motion to Correct Sheppard's Sentence in Light of
Apprendi & Jones.
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
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).
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 ...