Thursday, September 30, 2004

The Waiver Brief

The Office of the Federal Public Defender of the Northern District of Texas submitted a brief on behalf of the respondents. Interestingly, the brief does not address either of the two question before the Court in Booker and Fanfan. Instead, the brief addresses the situation in which a defendant makes a simple admission of fact, and under what conditions, if any, such an admission constitutes a waiver of constitutional rights. The brief argues that simple admissions are not sufficient to waive a defendant’s constitutional rights.

Here is the brief’s conclusion which summarizes the argument quite well:

Blakely, citing Apprendi, discussing Almendarez- Torres does not support the proposition that a defendant can waive constitutional rights by simply admitting facts, which are not facts related to a prior conviction, that increase the relevant statutory maximum sentence. Any such statement is contrary to this Court’s precedent. The defendant, however, can admit facts in conjunction with a valid waiver of enumerated rights that will allow the judge to increase the relevant statutory maximum sentence. As part of this procedure, the sentencing court must fully inform the defendant of the rights being waived and the results of such a waiver. Only then will a defendant knowingly and voluntarily have waived constitutional and statutory rights.15 Cf. Boykin, 395 U.S. at 242-244; Johnson, 304 U.S. at 464.

The bottom line is that the application of Blakely to the Federal Sentencing Guidelines, when combined with admitted facts and valid waivers, will result in defendants actually receiving the guideline range that they bargained for: this would be real “truth in sentencing.”16

I’m going to defer any commentary on this topic pending the oral argument in Booker and Fanfan. Since this question isn’t before the Court, and the petitioners aren’t raising the issue, unless the Justices ask about it, I’m going to put this topic on hold.

I will point out, however, that at the end of a lengthy footnote (FN 14) the amici make an argument which bears on Blakely’s impact on plea agreements. They argue that, “In a defense attorney’s eyes, the best result of applying Blakely to the Federal Sentencing Guidelines will be reducing a probation officer’s impact in determining the offense-level and allowing the prosecuting and defense attorneys to come to an agreement as to a defendant’s 'enhancements' and relevant statutory maximum sentence. When this occurs, a defendant will truly know what offense level he or she is bargaining for and then we can all truthfully say that the defendant has knowingly and voluntarily waived constitutional rights.” This argument, if true, would seem to foster more plea agreements over the status quo, or the status quo ex ante, you know what I mean.

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