Wednesday, July 21, 2004

9th Circuit Issues A Blakely Ruling

A sua sponte ruling from the 9th Circuit on Blakely can be found here. After a very, very quick look-over, I can say that the court has found that Blakely limits the judge to the top of the base level range for the offense, meaning that a drug quantity finding by the judge cannot be relied upon to enhance the sentence. More to come...

Some Highlights From the Majority
(Yes, there's a dissent)   

Rejecting the government’s attempt to distinguish the federal guidelines from the Washington system:   

We are unconvinced that the Congressional delegation of authority to the Sentencing Commission to set presumptive sentencing ranges in the first instance creates any meaningful distinction. Congress retains the authority to, and indeed must, ratify the Guidelines. Every Sentencing Guideline promulgated by the Commission must be ratified by Congress, which “can revoke or amend any or all of the Guidelines as it sees fit either within the 180-day waiting period or at any time.” Mistretta v. United States, 488 U.S. 361, 393-94 (1989); 28 U.S.C. § 994(p). The Court has previously held that the Sentencing Guidelines have the force of law, Stinson v. United States, 508 U.S. 36, 45 (1993), and “bind judges and courts in the exercise of their uncontested responsibility to pass sentence in criminal cases.” Mistretta, 488 U.S. at 391. See also Bahe, 201 F.3d at 1129 n.5. Congress has utilized this authority to shape the Guidelines directly, twice rejecting attempts by the United States Sentencing Commission to modify the powder to crack cocaine sentencing ratio. More recently, Congress acted directly to amend the Guidelines regarding child pornography, limiting judicial discretion to depart downward and changing the appellate standard of review of criminal sentences. See PROTECT Act, Pub. L. 108-21, 117 Stat. 668-69, 671-73 (2003). In short, we agree with the Seventh Circuit that “[t]he pattern [of the Guidelines] is the same as that in the Washington statute, and it is hard to believe that the fact that the guidelines are promulgated by the U.S. Sentencing Commission rather than by a legislature can make a difference.” Booker, 2004 WL 1535858, at *2.11  

An interesting, if not troubling footnote for what it suggests about the last 17 years:   

15 Blakely’s application to the Sentencing Guidelines will likely lead to greater accuracy in sentencing. We have long held “a defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information.” United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993). A jury finding beyond a reasonable doubt material sentencing facts that will increase the level of punishment, as opposed to a district judge making such findings by a preponderance of the evidence, will likely lead to more reliable information during the sentencing process. While theoretically the disputed hearsay relied upon to increase Ameline’s base offense level to 34 might have satisfied the district court that it was more likely true than not, it is far less certain that its questionable reliability would satisfy a jury (or district judge, assuming a proper jury waiver) beyond a reasonable doubt that Ameline had engaged in distribution of those amounts.   

Rejecting the government argument that the guidelines are severable:   

However, we decline the government’s invitation to invalidate the Guidelines wholesale and to permit the district court unfettered discretion on resentencing to sentence Ameline to a term within the statutory range of 0 to 20 years. Instead, we hold that, although these procedural aspects of applying the Sentencing Guidelines violate Ameline’s Sixth Amendment right to a jury trial, they are severable. 
We begin with the “presumption . . . in favor of severability,” a presumption that is based on the idea that “a court should refrain from invalidating more of the statute than is necessary” because “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Regan v. Time, 468 U.S. 641, 652-53 (1984). Reflecting this presumption, the test for determining severability provides that “[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Champlin Refining Co. v. Corp. Comm’n of Okla., 286 U.S. 210, 234 (1932). As this standard implies, the issue is “essentially an inquiry into legislative intent.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999). 
We therefore turn to Congress’ intent in enacting the Sentencing Guidelines. Congress had three objectives in mind when it enacted the Guidelines: honesty, uniformity and proportionality. U.S.S.G. § 1A1.1, cmt. 3 (2003). Congress sought to promote honesty in sentencing by eliminating the indeterminate sentencing system under which defendants often served far less than the sentence imposed by the district court. Congress’ second purpose was to achieve “uniformity” by “narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders.” Id. Finally, Congress intended that the Guidelines would also ensure proportionality by treating different criminal conduct differently. In short, Congress’ goal was to eliminate the uncertainty that accompanied indeterminate sentencing. 
The Sentencing Guidelines will still promote this goal even if the requirements for judge fact finding by a preponderance of the evidence are severed as violating the Sixth Amendment in circumstances like those confronting Ameline. The Sentencing Guidelines seek to achieve these Congressional objectives because they contemplate similar sentences once a given set of facts are found to exist. Although severance would change how those facts are determined, and by whom, severance would have no effect on the Congressional goal of achieving consistency of sentences in cases that involve similar offense conduct. In fact, were we to hold that Blakely precludes application of the Guidelines as a whole, we would do far greater violence to Congress’ intent than if we merely excised the unconstitutional procedural requirements. We are reluctant to establish by judicial fiat an indeterminate sentencing scheme.16 Absent the Sentencing Guidelines, we would return to a system of indeterminate sentencing with all of its attendant problems. Rather than undermining Congress’ objectives, severance facilitates them.  
[There’s more but I think this captures most of this argument]  

District Courts can convene sentencing juries:

 However, should the government seek to obtain a higher sentence for the offense of conviction, the district court may convene a sentencing jury to try the drug quantity and firearm issues, which, if proven beyond a reasonable doubt, may be used to increase Ameline’s sentence.19 As the Seventh Circuit in Booker noted, federal courts have long employed bifurcated juries in the capital punishment context, as well as in the civil context where a jury may only determine damages once it has separately determined liability. “There is no novelty in a separate jury trial with regard to the sentence, just as there is no novelty in a bifurcated jury trial.” 2004 WL 1535858, at *5; see also United States v. Khan, 2004 U.S. Dist. LEXIS 13192 at *16 (E.D.N.Y. July 12, 2004) (noting the success of the bifurcated jury system in capital cases).20    


The Dissent

The first paragraph of Judge Gould’s dissent:  
Blakely does not conclusively require that we hold constitutionally invalid the application of the Federal Sentencing Guidelines (“Guidelines”) to Ameline. The United States Supreme Court’s prior opinions have upheld the constitutionality of the Guidelines. I agree with Part II.A of the Fifth Circuit’s opinion in United States v. Pineiro, No. 03-30437, 2004 WL 1543170 (5th Cir. July 12, 2004), analyzing the impact of Blakely and holding that the Guidelines are not affected by it. I also agree with the dissent in United States v. Booker, No. 03-4225, 2004 WL 1535858, at *6-*11 (7th Cir. July 9, 2004) (Easterbrook, J., dissenting). While reasonable jurists may now disagree on the long-range impact of the reasoning of Blakely, in the short run we remain bound to apply the Guidelines unless and until the Supreme Court holds otherwise.21  
An interesting footnote from the first paragraph:  
21 Though I disagree with the majority’s analysis of the impact of Blakely, and believe the district court properly could apply the Guidelines in total, I would still vacate Ameline’s sentence under a different theory: The district court erred in shifting from the government to Ameline the burden of proof for the facts in the Presentence Report about drug quantity. I agree with the majority’s observation on this issue in its footnote 14.    
A great way to end your dissent:
Although I understand those who would contend that the logic of the majority opinion in Blakely compels the result my colleagues reach, “[t]he life of the law has not been logic,” as Justice Holmes observed, “it has been experience.” OLIVER WENDELL HOLMES, The Common Law 1 (1881). Considering the experience of our federal court system with sentencing reform under the Guidelines for twenty years, the prior Supreme Court precedent friendly to the Guidelines, and the array of disruptive issues that will necessarily follow in Blakely’s train if it is applied to the Guidelines,26 I conclude that the Supreme Court itself is the proper Court to decide if the Guidelines are constitutionally infirm in any fundamental way.27
I respectfully dissent. 

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