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  Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association

July/August 2007     Vol. 30, No. 5


MCLE Article: Sentence Structure

The Supreme Court's decision in Cunningham closely follows the jurisprudence set forth in Apprendi and Blakely

By Nicole Eiland

Nicole Eiland is an associate with the law firm of Kaplan Marino in Beverly Hills. Her practice focuses exclusively on state and federal criminal defense.


By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test.


On January 22, 2007, the U.S. Supreme Court issued its decision in Cunningham v. California,1 galvanizing the California Legislature into action to enact urgency legislation to stabilize the state's sentencing laws. Reiterating previous rulings on the issue, the Supreme Court held in Cunningham that California's Determinate Sentencing Law (DSL) violate the Sixth and Fourteenth Amendments of the U.S. Constitution by permitting judges to impose longer terms based on aggravating factors not admitted by the defendant or found by a jury.

John Cunningham, a former police officer, was tried and convicted in Contra Costa County of continuous sexual abuse of a minor under the age of 14, the defendant's 10-year-old son. Under the California Determinate Sentencing Law the offense was punishable by one of three precise terms of imprisonment: a low-term sentence of 6 years, a middle-term sentence of 12 years, or an upper-term sentence of 16 years. The judge could impose either the lower-, middle-, or upper-term sentence based on his findings on various aggravating and mitigating factors.

The judge found six aggravating factors, among them the vulnerability of the victim, the defendant's violent and vicious conduct, the threat of bodily harm to the victim if he did not recant, and the defendant's employment as a police officer. The court found one mitigating factor--the defendant's lack of criminal history. The court imposed the upper-term sentence of 16 years. Cunningham appealed, asserting that his right to jury trial under the Sixth Amendment had been violated because the facts that increased his sentence were found by a judge using the lower preponderance-of-the-evidence standard, rather than by a jury of his peers using the beyond-a-reasonable-doubt standard.

In an unpublished decision, the California Court of Appeal upheld the conviction and sentence. Writing for the 2-to-1 majority on that issue, Justice Simons concluded simply that the 16-year upper term was the maximum statutorily authorized sentence "for committing a continuous sexual abuse." A footnote acknowledged the Supreme Court's ruling in United States v. Booker2 between the time of sentence and appeal but contended that the California determinate sentencing structure complied with those directives, noting, "Penal Code section 1170 permits, but does not compel, the imposition of an upper term upon the finding of one or more aggravating factors."3 Justice Jones dissented in part, finding the imposition of the upper-term sentence in violation of the Sixth Amendment and the Supreme Court's ruling in Booker.

The California Supreme Court refused review. The U.S. Supreme Court accepted.

The Court's Sixth Amendment Sentencing Crusade

In light of the Supreme Court's line of sentencing decisions in Apprendi,4 Blakely,5 and Booker, the Cunningham ruling was not entirely unexpected. The Supreme Court's disapproval of determinate or mandatory sentencing schemes began with the Court's 2000 decision in Apprendi v. New Jersey.6 The Court held that any fact that is not found by a jury could not be used to increase a defendant's sentence, lest it violate the defendant's Sixth Amendment right to a jury trial.

That decision was followed in 2004 by Blakely v. Washington,7 in which the Court invalidated a Washington state sentencing law that permitted a judge to impose an exceptional sentence beyond the applicable statutory range if the judge found a substantial and compelling reason justifying the sentence. This case, according to Professor Frank Bowman, "plunged Sixth Amendment sentencing law deep down the rabbit hole."8

Two years later, in Booker, the Court applied this same reasoning to the Federal Sentencing Guidelines. In the first part of a two-part opinion, the court found that there was "no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in [Blakely.]" Both were "mandatory and impose[d] binding requirements on all sentencing judges that allowed judges rather than juries to find facts elevating a sentence."9

In the second part of the opinion, the Court remedied this constitutional error by making the Federal Guidelines merely "advisory" rather than mandatory. The remedial portion of the opinion penned by Justice Breyer, a longtime champion of the Federal Guidelines, acknowledges that the Federal Sentencing Guideline's carefully calibrated sentencing structure is constitutionally flawed but leaves the guidelines structurally intact. Federal judges must now "consider" or "take account" of the applicable guidelines but may exercise discretion to "depart" from or "vary" the sentence based on consideration of factors outlined in 18 USC Section 3553(a), such as "characteristics of the defendant," "nature and circumstances of the offense," and "need for treatment."10 In his dissent, Justice Scalia warned that Breyer's remedial action would "wreak havoc" in federal district and appeals courts.

Recognizing that authority to speak "the last word" resides in Congress, the Booker court said, "The ball now lies in Congress' court. The National Legislature is equipped to devise and install, long term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice."11 Despite the high court's attempt to lob the Apprendi–Blakely problem onto the legislature's court, Congress has yet to take up legislation to remedy the guidelines, leaving the Court's "advisory" fix in place.

The Court's fractured opinion has led to somewhat schizophrenic results throughout the circuits, drawing more questions regarding the "reasonableness" of a given sentence than it answers. The Booker ruling also left state courts with little guidance in remedying their own constitutionally offensive sentencing laws.

The California Supreme Court attempted to defend its sentencing laws in People v. Black.12 The court distinguished California's practice from the invalidated Federal Sentencing Guidelines by reasoning that in the Booker decision, the U.S. Supreme Court reiterated that the decision in Blakely was to avoid the government's practice of taking facts that could be, or once used to be, elements of crimes decided by juries, and giving them to judges to decide. That practice, the California court explained, was not implicated in the Black case, as none of the aggravating factors that a judge could use to justify picking the highest term involved facts traditionally charged to juries as elements of the crime.

However, a majority of the justices on the U.S. Supreme Court did not agree with the state supreme court's hair-splitting distinction, finding that "in all material respects, California's DSL resembles the sentencing systems invalidated in Blakely and Booker. Following the reasoning in those cases, the middle term prescribed under California law, not the upper term, is the relevant statutory maximum. Because aggravating facts that authorize the upper term are found by the judge, and need only be established by a preponderance of the evidence, the DSL violates the rule of Apprendi."13

Justice Alito's dissenting opinion, joined by Justices Kennedy and Breyer, found California's sentencing law to be indistinguishable in any constitutionally significant respect from the advisory guidelines scheme that the Court approved in Booker.14 Alito reasoned that because both systems subject the exercise of that discretion to appellate review for "reasonableness," and because both California law explicitly, and the federal scheme implicitly, require a sentencing judge to find some factor to justify a sentence above the minimum that could be imposed based solely on the jury's verdict, there was no constitutional difference between California's determinate sentencing and the advisory remedy under Booker.

The apparent dichotomy between the Apprendi-Blakely rule and the Booker remedy was highlighted by Justice Alito's dissenting opinion. While the majority agrees that judicial discretion is proper,15 judicial fact finding is unacceptable. This ruling effectively gives sentencing courts full discretion in fashioning sentences. However, at the same time it encourages judges not to make specific and articulated findings of fact on the record, making the sentences handed down under these constitutional "indeterminate" and "advisory" remedial sentencing systems virtually unreviewable on appeal. This result seems to fly in the face of an important principle underlying the legislative intent of these various sentencing structures: to avoid disparity in sentencing between similarly situated defendants.

As with past Supreme Court sentencing decisions, the Cunningham majority was an odd alliance of traditionally antagonistic justices. Joining the liberal Justice Ginsburg were the usual suspects--Justices Stevens and Souter--but also joining were conservative Justices Scalia, Thomas, and new Chief Justice Roberts, who favor a traditional reading of the Sixth and Fourteenth amendments. Justices Kennedy, Breyer, and Alito dissented, echoing their continued disagreement with the entire line of cases beginning with Apprendi in 2000.

Temporary Remedies

In her opinion for the Court in Cunningham, Justice Ginsburg said that it is the state's choice how it will bring its system into constitutional compliance. Several states, she noted, have modified their systems by calling on the jury to find any fact necessary for the imposition of an elevated sentence.

California's Determinate Sentencing Law became operative on July 1, 1977,16 replacing the prior system under which most offenses carried an indeterminate sentence range from which judges had the option of choosing a term at any point along that range. As the California Legislature explained, "[E]limination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion"17--that is, three choices rather than a nearly infinite number along a range.

A week after the Cunningham ruling, California State Senator and Democratic Majority Leader Gloria Romero proposed SB 40, an amended version of Penal Code Section 1170, in an effort to temporarily stabilize California's sentencing system. This bill was given "urgency status" and was passed into law on March 28, 2007, with little opposition in either the Senate or Assembly.18 The bill, which took effect immediately, permits the judge in each case to choose between the lower, middle, or upper term provided by law for the particular crime without making certain findings of fact. This fix essentially reverts sentencing law back to California's pre-1977 indeterminate sentencing days.

While the California Public Defenders Association remained neutral on the bill, some public defenders, such as San Francisco's Jeff Adachi, lobbied against the remedy, favoring a "plead and prove" approach that would require prosecutors to include aggravating sentencing factors in charging documents and bifurcated trials to consider those aggravating factors. In an opinion piece, Adachi voiced concerns that SB 40 would make it easier for judges to increase sentences and thereby increase the burden on the already overcrowded California prison system.19

Currently California has 172,000 inmates crammed into facilities built to house about 100,000. Because of the uncertain impact on prison populations and the threat of a federally imposed inmate cap, SB 40 includes a two-year sunset provision based on the expected timeline for the establishment of a formal state sentencing commission. Perhaps anticipating the U.S. Supreme Court's ruling in Cunningham, on January 18, 2007, Senator Romero had also proposed SB 110, which would create "a nonpartisan, independently staffed sentencing commission charged with the responsibility of collecting and analyzing sentencing and corrections data, developing statewide sentencing and corrections policies, and achieving uniformity and consistency in our sentencing practices."20

Other lawmakers question whether SB 40 actually solves the problem identified by the High Court. The bill allows judges more latitude in imposing sentences but does not provide for jury fact finding. Some legal experts, as well as State Senator Tom McClintock, argued that the bill should have provided for bifurcated sentencing proceedings in order to ensure its constitutionality.

California is also faced with the expensive task of resentencing cases in which a Blakely issue was raised on appeal and that are not yet final, with some predicting that as many as 10,000 previously sentenced inmates could be affected.21 The California Supreme Court has granted review in a number of those cases. Until the California Supreme Court provides guidance, it is unclear how Blakely-Cunningham errors will be resolved. For now, the Court's ruling limits application to cases in which the upper-term sentence was imposed.

Some guidance as to allowable procedural mechanisms for remedying the Cunningham error came on March 28, 2007, from the Third Appellate District of the California Appellate Court. In its decision in Barragan v. Superior Court,22 the court allowed prosecutors to allege aggravating factors by amendment to the charging document and judges to hold a bifurcated trial on those allegations. In Barragan, the defendant, Alejandro Barragan, was accused of attempted murder and other crimes, the jury was impanelled, and the prosecution presented the first witness on January 23, 2007, before the prosecutor had learned of the Supreme Court's ruling in Cunningham v. California the previous day. The prosecutor immediately moved to amend the information to charge a number of aggravating facts. The defense objected to this unconventional procedural tactic and filed a demurrer to the amended information alleging that this procedure did not conform with governing statutes.

On appeal, the court upheld the trial court's decision to overrule the demurer and bifurcate the trial so that the aggravating facts would be submitted to the jury only if it found the defendant guilty of one or more of the charged crimes. The court found that the statutory scheme does not require the prosecution to plead and prove aggravating facts at the preliminary examination. By providing prosecutors with a way to retroactively amend informations to include aggravating factors, the Third Appellate District seems to be encouraging the "plead and prove" remedy to California's constitutional errors.

The Second Appellate District weighed in with People v. Diaz. In Diaz, a Los Angeles Superior Court judge imposed an upper-term sentence, finding four factors in aggravation. The appellate court overturned this sentence, finding that this was "precisely the type of judicial fact finding that is prohibited by Apprendi, Blakely, and Cunningham."23 Once again, it was the remedy that proved to be the more difficult task. The court was unwilling to reverse the sentence and require the trial court to impanel a sentencing jury to weigh aggravating factors beyond a reasonable doubt, noting that California currently had no statutory system in place for selecting noncapital sentencing juries and, as such, had no procedural or evidentiary rules to govern such a sentencing "trial." Therefore, acknowledging these real-life impossibilities, the appellate court imposed the midterm sentence on the defendant, referencing both the Barragan decision and the newly enacted sentencing legislation.

While awaiting a definitive answer from the California Supreme Court, California prosecutors have improvised ways to work within the ruling in Cunningham. Los Angeles County is the most heavily affected by Cunningham, as the county handles 40 percent of the state's criminal cases. The Los Angeles County District Attorney's Office issued a memorandum on February 16, 2007, directing its attorneys to give notice of aggravating circumstances in informations, and to seek jury findings on them at trial. There are few procedural mechanisms for such findings, however, leaving judges to decide questions of notice, discovery, and jury instructions.24 A majority of cases in the county are resolved by plea agreement. Prosecutors in Los Angeles County have received instructions to ensure that all plea bargains avoid any Cunningham issues by obtaining the appropriate waivers and admissions from defendants.

The Booker ruling has given federal district courts more leeway in fashioning sentences, allowing jurists to account for sentencing factors under 18 USC Section 3553(a), such as "nature and characteristics of the defendant" as well as other "discouraged" factors. To complicate matters, the ever-elusive "reasonableness" standard has been established to review out-of-guidelines sentences. Federal circuits have spent the last year wrestling with the reasonableness of various sentences handed down by district court judges.

Statistical evidence gathered by the Federal Sentencing Commission in the year since the Booker decision shows that sentences that dipped below the recommended guideline range have doubled from 6 percent pre-Booker to 12.2 percent post-Booker. Upward departures or variances have also increased from 0.78 percent before Booker to 1.4 percent, suggesting that given more discretion, federal judges are more likely to be lenient.25 However, even with all of the increased discretion allotted to sentencing courts, 61 percent of cases still fell within the recommended guideline range and 25.4 percent fell outside of the guideline range only on a motion by the government recognizing the defendant's "substantial assistance" under U.S. Sentencing Guidelines Section 5K1.1. Given similarly increased leeway it remains to be seen whether California judges will be more or less lenient.

Finding a Bright Line

On February 22, 2007, the U.S. Supreme Court heard oral argument in Claiborne v. United States and Rita v. United States--opening the next chapter in the Apprendi-Blakely-Booker saga. Many observers had presumed that these cases would generate some bright line rule defining "reasonableness" under the now "advisory" federal guidelines. At issue was how much weight judges should give to the guidelines now that they are only advisory. Currently, seven of the twelve federal courts of appeal have adopted the stance that a sentence within the guidelines must be accorded a presumption of reasonableness or at least be given greater weight among the other sentencing factors. The other five circuits argue that sentencing judges should be free to adopt or reject the guidelines and allow judges to use reasoned judgment rather than tether them to mechanized sentencing formulas. The Rita and Claiborne cases sought to harmonize the definition of reasonableness among the circuits.

Mario Claiborne pled guilty to two counts of possessing and distributing 5.03 grams of cocaine base in violation of 21 USC §§841(a)(1) and 844(a). The district court determined Claiborne's advisory guidelines sentencing range to be 37 to 46 months in prison. He provided evidence of a stable home life, that he had no prior criminal history, and there was no violence or threat of violence during the commission of the crime. Based on these mitigating factors, the sentencing court imposed a 15-month sentence representing a 60 percent variance from the advisory guideline sentence.

On review, the Eighth Circuit found that this sentence represented an unreasonable departure, reasoning that such an extraordinary variance required equally extraordinary circumstances that were not present.26 Prior Eighth Circuit decisions have not offered any helpful guidance on the issue of reasonableness, stating merely that a sentence is reasonable "[s]o long as the judge offers appropriate justification under the factors specified in 18 U.S.C. §3553(a),"27 and that a "range of reasonableness" is within the court's discretion.28

Victor Rita is a decorated Vietnam combat veteran who was convicted by a North Carolina jury of making two false statements to federal agents about a parts kit he had purchased for a vintage battle rifle. As with Claiborne, Rita had no prior criminal history and there were no aggravating characteristics related to his background. However, the presentence report prepared by the probation department after his conviction classified Rita as an "accessory after the fact" to alleged importation violations by the company that sold him the parts kit. This classification doubled his guideline sentence from 15 months to 33 months. The judge sentenced Rita to 33 months in prison in accordance with the recommended guideline range. Rita appealed to the Fourth Circuit, claiming that the judge gave too much deference to the guidelines and without explanation as to why other factors that would mitigate his advisory sentence were rejected. In upholding the sentence of 33 months, the Fourth Circuit found "that the district court properly calculated the guideline range and appropriately treated the guidelines as advisory."29 Thus, the sentence imposed was effectively double the sentence that would be contemplated solely under the facts found by a jury beyond a reasonable doubt.

In oral argument before the Supreme Court, lawyers for Claiborne and Rita argued that granting a "presumption of reasonableness" to guideline sentences negates the remedial portion of Booker by effectively making the guidelines mandatory and thereby merely playing lip service to the mandates laid out in the first part of Booker. The government argues for some kind of bright line rule that would tether district court judges to the guideline range.

Many different amici also jumped into the fray. In an amicus brief penned by Solicitor General Paul Clement, the Bush Administration urged the Court to declare that the guidelines are entitled to a presumption of reasonableness, hoping to set definite limits to judicial discretion. "The Guidelines are written and revised by an expert agency, with an intent to integrate all other sentencing factors with input from Congress and sentencing judges across the country."30 The Justice Department as well as three U.S. senators--Edward Kennedy of Massachusetts, Dianne Feinstein of California, and Orrin Hatch of Utah--joined in a brief in the Claiborne case in defense of the Sentencing Commission and the guideline regime.31

The National Association of Criminal Defense Lawyers (NACDL) argued in its amicus submission that both a presumption of reasonableness and an added burden of extraordinary justification for below-guideline sentences perpetrate the same constitutional violations supposedly remedied by the Booker ruling. By awarding the guidelines presumptive reasonableness and requiring judges to find extraordinary facts needed to justify significant guideline departures, the NACDL argues that the guidelines retain the same effect they did before the Court's ruling in Booker, making the promised Sixth Amendment protections mere dicta. "Because judges continue to make the factual findings that determine the guideline range (or that permit deviation from it), the range must be no more than one factor among many that the judge should consider."32

Adding to the drama in this line of cases, Mario Claiborne was killed on May 30, 2007, in an attempted car theft.33 On June 4, the Supreme Court declared the Claiborne portion of the case moot.34 Under Supreme Court Rule 35, when a party to a case has died, a personal representative may be named if the legal interests would survive the death. Obviously, this is not possible in a case involving a convicted and sentenced individual who has the sole legal interest in the outcome. While the companion case in Rita will still be decided, a decision in that case is not likely to provide a resolution to the the specific issue of the reasonableness of a below-guidelines sentence.

In a somewhat impassioned supplemental memorandum, Solicitor General Clement implored the Court to take up Beal v. United States.35 The case, also out of the Eighth Circuit, "squarely raises the same legal issue that this Court granted certiorari to decide in Claiborne.36 If granted, Clement has asked that the case be placed on an expedited briefing schedule and oral arguments heard in early October so that a decision could be made this term. In his filing, Clement drew the Court's attention to the mounting backlog of appellate court dockets awaiting clarification on this issue, stating, "The federal criminal justice system has a great need for this Court's guidance concerning the nature and scope of review of out-of-guidelines sentences under Booker."

Thus, it does not appear that the sentencing confusion caused by Booker will be resolved as soon as it once seemed, and criminal defense practitioners and clients will continue down the "rabbit hole." Lamenting this uncomfortable descent after the Court's ruling in Blakely, Bowman, paraphrasing the sentencing blogger Douglas Berman,37 wrote that Cunningham makes clear that at least six justices have "bought tickets to Blakely-land, so the most the rest of us can do is offer constructive suggestions about how to best order the affairs of that particular region."38 Perhaps this latest sentencing hiccup will call the legislature to action, as it certainly seems California is in need of some kind of sheriff to bring order to Blakely-Land.



1 Cunningham v. California, 127 S. Ct. 856 (2007).
2 United States v. Booker, 543 U.S. 220 (2006).
3 People v. Cunningham, 2005 WL 880983, *9 (Cal. App. 1st Dist. 2005).
4 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
5 Blakely v. Washington, 542 U.S. 296 (2004).
6 Apprendi, 530 U.S. 466.
7 Blakely, 542 U.S. 296.
8 Frank O. Bowman III, The Question Is Which Is to Be Master—That's All: Cunningham, Claiborne, Rita and the Sixth Amendment Muddle, 19 Federal Sentencing Reporter ____ (2007).
9 United States v. Booker, 543 U.S. 220, 221 (2006).
10 Id. at 259.
11 Id. at 265.
12 People v. Black, 35 Cal. 4th 1238 (2005).
13 Cunningham v. California, 127 S. Ct. 856, 858 (2007).
14 Id. at 873.
15 United States v. Booker, 543 U.S. 220, 233 (2006) ("We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.…For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.").
16 Pen. Code §1170.
17 Id.
18 Rapattoni, Governor Gets Bill to Correct Sentencing Law, L.A. Daily J., Mar. 29, 2007.
19 Jeff Adachi, Sentencing Bill Would Worsen State's Prison Crisis, L.A. Daily J., Mar. 26, 2007.
20 Press Release, Sen. Gloria Romero (Jan. 18, 2007), available at http://dist24.casen.govoffice.com/. Versions of the bill have passed both houses of the legislature, and proponents believe that it will not be difficult to work out the differences. Governor Schwarzenegger has given no indication that he would veto the bill.
21 Ken Ofgang, Governor Approves Changes to California Sentencing Law, Metropolitan News, Apr. 2, 2007.
22 Barragan v. Superior Court of Yolo County, 148 Cal. App. 4th 1478 (2007).
23 People v. Diaz, Daily J. DAR 5829 at 5837 (Cal. App. 2d Dist. Apr. 27, 2007).
24 Oliver, Prosecutors Go Their Own Ways on Cunningham—Patchwork of Strategies Emerge on Sentencing Issues, L.A. Daily J., Feb. 26, 2007.
25 U.S. Sentencing Commission, Preliminary Quarterly Data Report through Dec. 31, 2006, available at http://www.ussc.gov.
26 United States v. Claiborne, 439 F. 3d 479, 480 (8th Cir. 2006).
27 United States v. Johnson, 427 F. 3d 423, 426-27 (7th Cir. 2005).
28 United States v. Saenz, 428 F. 3d 1159, 1165 (8th Cir. 2005).
29 United States v. Rita, 177 Fed. Appx. 357, *358, 2006 WL 1144508, (Cal. App. 4th Dist. 2006).
30 U.S. Justice Department, Amicus Brief, Paul Clement available at http://www.usdoj.gov.
31 Lyle Denniston ed., Salvaging the Guidelines, SCOTUS Blog, Akin, Gump, Strauss, Hauer Feld LLP (Feb. 19, 2007), available at http://www.scotusblog.com.
32 National Association of Criminal Defense Lawyers, Amicus Curiae Brief, available at http://www.nacdl.org
33 Bill Bryan, Late-Night Truck Fracas Leaves One Dead, St. Louis Post Dispatch, May 31, 2007, available at http://www.stltoday.com.
34 Claiborne v. United States, Case No. 06-5618, Slip Opinion 551 U.S. __ (2007), available at http://www .supremecourtus.gov.
35 Beal v. United States, Case No. 06-8498, Supplemental Memorandum for the United States, Paul Clement, Solicitor General, 2007 available at http://www.scotusblog.com.
36 Id. at 2.
37 Douglas Berman ed., Sentencing Law and Policy, available at http://sentencing.typepad.com.
38 Bowman, supra, note 8.
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