Monday, July 12, 2004

Request for Help - A Tough Blakely Question

A reader of this blog has written to me in the hopes that other readers of this blog might offer some advice. He poses a tough question, which you can respond to using the comments or by emailing me (if you too want to conceal your identity) at The readers asks the following:

I'm representing a defendant in a typical federal drug conspiracy case, who is facing a plea or trial decision in the next week. I'm contemplating making a motion to strike or dismiss Blakely-mandated sentencing factors I expect to see shortly in a superseding indictment. This would serve my long-term goal of trying to get a ruling that the non-offending portions of the guidelines are not severable so the judge will simply be able to impose an entirely discretionary sentence. See Croxford,

Freed of all restrictions, the judge would likely give probation if my client pleaded guilty but the indictment alleges an 841(b)(1)(A) conspiracy, with a ten-year mandatory minimum based on drugs actually recovered. As you know, section 3553(f) provides for so-called "safety-valve" relief from mandatory minimums but disqualifies defendants who were "supervisor[s] of others in the offense," section 3553(f)(4). My client, a drug dealer's girlfriend who "recruited" a courier, would likely be disqualified under this provision, regardless of whether the determination were made by a judge or jury. Accordingly, unless I could knock out this provision from the safety-valve statute, my client wouldn't be able to get less than the ten-year mandatory minimum sentence.

Therefore, I'm trying (without great hope, I'm afraid) to develop the following argument: While the guidelines are non-severable, section 3553(f) itself is. The court should stike subsection 3553(f)(4)--because it cross references a "determination" that was supposed to have been made under now-defunct guidelines section 5C1.2. It should then determine safety-valve eligibility without regard to role in the offense because there will no longer be any possibility of "determin[ing] under the sentencing guidelines," whether the defendant had a supervisory role.

I'm afraid that even if the court finds the guidelines non-severable, the cross reference to a "determination under the sentencing guidelines" will simply be transformed into a determination under 3553(f)(4) itself using caselaw developed under the defunct guidelines provision. Theoretically, freed somewhat from jurisprudence under the former guidelines, the court could articulate a more restrictive (and more favorable) common-law definition of "supervisor" under 3553(f)(4) itself. Nevertheless, I would be surprised if it differed materially from the old interpretations under section 5C1.2 and I would expect all of that caselaw under the former guidelines to be applied by analogy. Moreover, as Congress clearly intended 3553(f) to apply only to non-supervisors, it would be challenging to argue that 3553(f)(4) could be severed so that the other safety-valve factors (which my client could satisfy) should be applied without regard to consideration of whether a defendant had an aggravating role in the offense.

So, this seems like a daunting challenge but I wonder if anyone else has any thoughts on how to use Blakely to invalidate cross references to guideline provisions in this or other criminal statutes.

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