The Maximum Term of Imprisonment is the Statutory Maximum (not the Maximum Range under Federal Sentencing Guidelines)

By Benjamin Lowenthal -

State v. Andres (ICA October 20, 2011)

Background. Ray Andres was charged with promoting a dangerous drug in the second degree. HRS § 712-1242. The date of the alleged offense occurred on November 6, 2006. The prosecution moved for a mandatory minimum term of three years and four months of imprisonment without the possibility of parole. Over Andres' objection, the circuit court determined that Andres was eligible for a mandatory minimum based on a conviction for a federal drug offense in 1991. In that case, Andres pleaded guilty to attempting to possess over 100 grams of crystal methamphetamine on July 3, 1991 and was sentenced on July 8, 1991. The federal court determined that Andres was subject to a range of 121 to 151 months. The circuit court imposed a mandatory minimum on Andres. Andres appealed.

The Repeat-Offender Statute. Andres was found guilty of a class B felony and sentenced pursuant to the repeat-offender statute. "[A]ny person convicted of . . . any class B felony . . . and who has a prior conviction or prior convictions for the following felonies . . . or any felony conviction of another jurisdiction, shall be sentenced to a mandatory minimum period of imprisonment without the possibility of parole[.]" HRS § 706-606.5(1). However, "a person shall not be sentenced to a mandatory minimum period of imprisonment under this section unless the instant felony offense was committed during such period as follows . . . [w]ithin the maximum term of imprisonment possible after a prior felony conviction of another jurisdiction." HRS § 706-606.5(2)(f).

What's the "Maximum Term of Imprisonment"? Andres argued that the exception applied to him because the date of the current offense--November 6, 2006--occurred beyond the "maximum term of imprisonment" for the federal offense. Andres argued that the "maximum term of imprisonment" was the 151 months from the federal sentencing guidelines, which were mandatory at the time of the sentencing. On the other hand, the prosecution argued that the "maximum term of imprisonment" refers to the statutory maximum. Here, Andres was convicted of violating a federal statute. 21 U.S.C. § 841(b)(1)(A). The statutory maximum is a life sentence.

Maximum Term of Imprisonment = the Statutory Max. under the laws of that Jurisdiction. The ICA rejected Andres' argument. "The phrase 'maximum term of imprisonment possible' in HRS § 706-606.5(2)(f) . . . refers to the maximum term of imprisonment to which a court in a foreign jurisdiction may possibly sentence a convicted defendant." State v. Heggland, 118 Hawai'i 425, 436, 193 P.3d 341, 352 (2008). In determining the maximum term possible, the HSC looked to the jurisdiction that sentenced the defendant. Here, the ICA turned to federal authorities to determine the maximum possible sentence. According to the ICA, the federal authority is clear: the maximum term of imprisonment stems from the United States Code, not the federal sentencing guidelines. United States v. Ray, 484 F.3d 1168, 1171 (9th Cir. 2007); United States v. Hinson, 429 F.3d 114, 119 (5th Cir. 2005); United States v. Work, 409 F.3d 383, 488-92 (1st Cir. 2005). The ICA held that the maximum term of imprisonment for Andres was a life term. Thus, any subsequent offense was within the maximum term of imprisonment.

What's the Maximum when you can go Beyond the Statutory Maximum? This is a straight-forward case. The ICA held that the statutory maximum is the measuring stick, not the maximum guideline range. So far, so good. But sticky problems await. Some statutes allow the sentencing court to go beyond the statutory maximum and impose enhanced sentences provided that certain evidence is proven by the prosecution before a jury. See Apprendi v. New Jersey, 530 U.S. 466 (2000). So what's "the maximum term of imprisonment" in that situation? Would it be the enhanced sentence if the prosecution went proved those facts? Probably. But what if it didn't, but it could have done it? Would the measuring stick still be the enhanced sentence? Heggland states that "the maximum term of imprisonment to which a court in a foreign jurisdiction may possibly sentence a convicted defendant." State v. Heggland, 118 Hawai'i at 436, 193 P.3d at 352. And a court could possibly sentence a defendant to the enhanced sentence. Then again, the answer could be no. A "convicted defendant" suggests that the maximum term is limited to the statutory maximum without the enhancing facts. Either way, that issue is out there waiting for resolution.

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