Saturday, July 17, 2004
Judge Joseph Goodwin of the Southern District of West Virginia issued the following order in United States v. Thompson, 2004 U.S. Dist. LEXIS 13213 (NO. 2:03-00187-02), which basically calls a sentencing “timeout” of sorts.
The court FINDS that consistent application of the law is of paramount importance in sentencing matters. Therefore, in the interests of justice, the court will move all sentencing hearings to a date after October 15, 2004. The sentencing hearing in this case that was previously scheduled for July 16, 2004, at 10:00 am is now SCHEDULED for October 21, 2004, at 10:00 am. The court will consider rescheduling the hearing for a earlier date on motion of a party and for good cause shown.
Judge Sachs: I’m using the pre-Guidelines sentencing system
From the Western District of Missouri, Judge Howard F. Sachs declares: Unless and until a new system is devised, I anticipate using pre-Guideline methods of sentencing
The case is US v. Lamoreaux, 2004 U.S. Dist. LEXIS 13225 (No. 03-00399-01/02-CR-W-HFS):
Blakely does not invalidate indictments but simply affects punishment in certain instances, where a jury has not found enhancing factors which would cause sentencing beyond the statutory maximum. The Blakely analysis lends some support to an argument that base offense levels should be treated as fixing statutory maximum sentences, contrary to the rulings of the various Courts of Appeal. The court is aware that some district judges, in the wake of Blakely, have grudgingly used base offense levels exclusively in setting sentences. See, e.g., United States v. Shamblin, 2004 WL 1468561 (S.D.W.Va. 2004), relying on the practice first used by Chief Judge Young in United States v. Green, 2004 WL 1381101 (D.Mass. 2004), a pre-Blakely decision which anticipates the Blakely holding on enhancements. News items confirm that exclusive use of base offense levels tends to yield excessively lenient punishment, contrary to Congressional intent, Sentencing Commission formulations and judicial good judgment.
I have indicated in several courtroom proceedings that I find more persuasive the ruling of Judge Cassell in United States v. Croxford, 2004 WL 1462111 (D.Utah 2004) concluding that we have a constitutionally failed system of sentencing, and must disregard both base offense levels and enhancements as mandatory calibrators at sentencing in the wake of Blakely. n1 Guideline provisions seem generally incapable of being severed in a sensible fashion. Unless and until a new system is devised, I anticipate using pre-Guideline methods of sentencing, giving due deference to facts and factors developed for sentencing use-but of course subject to statutory restrictions. If a twenty year sentence is the statutory maximum in this case there should be no impediment to sentencing, if necessary, that balances the need for appropriate severity and sound moderation.
Judge Witt: Tennessee’s sentencing regime may be in big trouble
From the Criminal Court of Appeals in Tennessee, Judge James Curwood Witt, Jr wrote the following in State v. Ramey, 2004 Tenn. Crim. App. LEXIS 636 (No. E2003-01840-CCA-R3-CD)
We further recognize that the rule in Ralph Howard Blakely may well obliterate Tennessee's procedure for determinate sentencing by a judge utilizing statutory enhancement factors. See Tenn. Code Ann. § 40-35-114 (enumerating statutory enhancement factors). If so, and if Ralph Howard Blakely is determined to be applicable to the present case, the judge's application of the abuse-of-private-trust enhancement factor violates the defendant's right to jury trial. See Ralph Howard Blakely, slip op. at 9-10. We believe that in that circumstance, however, the application in the present case of the Apprendi-approved history of prior convictions alone justifies the defendant's mid-range sentence.