Tuesday, September 14, 2004

Adding Fuel to the Blakely Fire

LawFuel.com (no, I didn't make that up) has a story on another white collar sentence which has been affected by Blakely. I'll let the Fuel do the talking:

The former chief executive of a Southern California electronics company, who was convicted of "cooking" the company's books and making false statements to the Securities and Exchange Commission, was sentenced today to six months in federal prison and ordered to pay a fine of $1.25 million and nearly $3.2 million in restitution.

Richard I. Berger, 61, of Rolling Hills Estates, was sentenced by United States District Judge Robert M. Takasugi, who made it clear that he was forced to limit Berger's prison sentence because of the United States Supreme Court's recent decision in Blakely v. Washington, 124 S.Ct. 2531 (2004), and the ruling of the 9th U.S. Circuit Court of Appeals in United States v. Ameline, 376 F.3d 967 (2004), which applied Blakely to the federal sentencing guidelines.

The article goes on to say:

Because neither Blakely nor Ameline affects criminal fines or restitution, Judge Takasugi was able to impose the hefty monetary penalties after making judicial findings that include Berger causing losses of $3,144,832 million to victim banks and at least $2 million to investors.

This is an interesting, if unexplored point. Why shouldn't Blakely apply to restitution? Sentencing Law and Policy discusses the matter here and here.

Why shouldn't Blakely apply to restitution? Frankly, I started asking why Apprendi shouldn't apply to restitution. The answer I got from the Eighth
Circut (which would cover the Blakely question as well) is to be found at United States v. Ross, 279 F.3d 600, 609 (8th Cir. 2002). The amount of restitution
authorized by statute does have its outer limits (otherwise would be subject to the vagueness attack I lodged) and that "outer limit" is defined by the scope of the criminal scheme described in the indictment.
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