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19 July 2004

Stephen J. Kane - Jeffrey P. Curtis and Martin A. Sax v. United States of America
Mayer, Brown, Rowe & Maw LLP

Stephen J. Kane in Jeffrey P. Curtis and Martin A. Sax, Petitioners-Appellants v. United States of America, Respondent-Appellee, Docket No. 01-2826.

The petitioners were convicted in separate trials of participating in a conspiracy to distribute marijuana, in violation of 21 U.S.C. § 841. The juries did not decide the drug quantity with which the petitioners were involved. Instead, the district judge made the drug quantity determination under a preponderance of the evidence standard. The district judge's drug quantity determination resulted in sentences of 262 months imprisonment for both petitioners, exceeding the five year maximum sentence permitted by the juries' verdicts.

Subsequently, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), 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." The petitioners then filed their initial habeas petitions, arguing that the district judge's drug quantity determination violated Apprendi and required that the district court reduce their sentences.

The Seventh Circuit asked the Firm to address whether the court should apply Apprendi retroactively to initial habeas petitions. The appeal also raises issues of procedural default, i.e., whether the petitioners have cause for not raising the Apprendi issue at their pre-Apprendi trials, and whether the Apprendi error prejudiced the petitioners. Finally, Mayer, Brown, Rowe & Maw argued that Apprendi renders § 841 and the Sentencing Guidelines unconstitutional.

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