Thursday, September 09, 2004

Thursday News and Updates

Yesterday's big news was the announcement of the 4th Circuit's decision in Hammoud, which you can get courtesy of Sentencing Law and Policy here.


Quattrone gets 18 months. has a story on the sentencing, in which Judge Owen enhanced Quattrone's sentence for perjury, Blakely notwithstanding. The article discusses perjury and Blakely in reasonable detail.

From Mississippi, U.S. District Judge David Bramlette has delayed sentencing a defendant who may have valid Blakely claims. The defendant's case, which involves drug offenses, presents some relevant conduct issues which may be proscribed by Blakely.


The Oregon Court of Appeals has issued a Blakely opinion in Oregon v. Sawatzky
(0003-32189, 0009-37299; A116857 (Control), A117424)(Ore. Ct. App. Sept 8, 2004). The opinion discusses in detail, the workings of the Oregon sentencing guidelines, which have flown under my radar thus far, despite the fact that the Supreme Court vacated and remanded a recent Oregon case for reconsideration in light of Blakely. See Dilts v. Oregon, ___ US ___, 124 S Ct 2906, ___ L Ed 2d ___ (2004). In this case, the defendant's sentence was enhanced based on an "abuse of trust" sentencing factor.

The court summarizes the
Oregon guidelines as follows:

Under Oregon's sentencing guidelines scheme, the presumptive sentence for a felony is based on the elements of the crime itself and the offender's criminal history. The sentencing court "shall" impose the presumptive sentence unless it imposes a departure sentence based on judicial findings of "substantial and compelling reasons" for departure which are not based on, or dependent on, the jury's findings.

Here's how the court sums it all up:

In light of the Court's statements in Blakely, it is apparent that the rationale underlying Dilts was incorrect. The Court has made clear in Blakely that a "statutory maximum" sentence for purposes of the Sixth Amendment is not something that, by mere legislative directive, can encompass a sentence enhancement that is based solely on judicial factfinding.

We conclude, consistently with Blakely, that the relevant "prescribed statutory maximum" under the Oregon sentencing guidelines is the presumptive sentence that the court determines based on the offender's criminal history and crime seriousness score. Guidelines departure sentences, which require judicial findings of fact and are not, under the current scheme, based on facts found by the jury, do not comport with the Sixth Amendment to the United States Constitution.

Sentences vacated; cases remanded for resentencing; otherwise affirmed.

Also from Oregon, the Oregon State Bar has published and article entitled, "Has the Supreme Court made us an offer we can’t refuse?" The article was written by attorney Jesse Wm. Barton, who also happens to have been the victor in Oregon v. Sawatzky. According to Barton:

Blakely is of great interest to the general public, because it presents Oregon a unique opportunity to save tens of millions, and maybe even hundreds of millions of dollars in correctional costs. As Everett Dirksen might have said, this is "real money."

This is a fantastic article for those that have an interest in the Oregon sentencing guidelines, or state guidelines in general. I also happen to like the concluding paragraph:

In other words, any current and future discussions about the appropriate legislative response to Blakely should not slavishly focus on attempting to restore an unconstitutional sentencing scheme created 15 years ago. The discussions instead should focus on the state’s modern priorities and current exigencies. Only that sort of discussion would allow the legislature to "best discern the true interest of" the state and be "least likely to sacrifice it to temporary or partial considerations."

From the 7th Circuit - US v. Loutos
Loutos pled guilty to wire fraud and his sentence was enhanced based on the relevant conduct (amount of loss) proven in the trial of a co-defendant. Despite rejecting the defendant's motion to withdraw his plea agreement, the 7th Circuit remanded Loutos's case for resentencing because the district court judge relied on relevant conduct which was not submitted to the jury.

From the 10th Circuit
In Leonard v. US, 2004 U.S. App. LEXIS 18958 (10th Cir., Sept. 8, 2004), the court denied a defendant's motion under the Antiterrorism and Effective Death Penalty Act (AEDPA) to file a second or successive 28 U.S.C. § 2255 motion based on Blakely.

The Colorado Supreme Court will hear a Blakely appeal. Yesterday, the court issued the following cert. grant:

Whether Blakely v. Washington, 159 L. Ed. 2d 403, 541 U.S. __, 124 S. Ct. 2531 ( June 24, 2004 ), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) prohibit the aggravation of petitioner's sentence because the statutory enhancement factors, defined in section 18-1-105(9)(a)(II) and section 18-1-105(9)(a)(V), were never charged in an information nor pled to by petitioner.


Petition for Writ of Certiorari GRANTED EN BANC.

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