Saturday, July 03, 2004

Bowman, Stith, Stuntz and The Guidelines

On June 29th, Professors Stith and Stuntz penned an op-ed piece for the New York Times. They suggested that prosecutors were “already at work drafting plea bargains to try to bypass the court's ruling, but no one knows how these bargains will be received.”

United States v. Medas, 2004 U.S. Dist. LEXIS 12135, a case in the Eastern District of New York, offers some early insights into how prosecutors are adjusting to Blakely. In Medas, the prosecutor asked the judge to submit to the jury a 20 page Supplemental Verdict Sheet. The Special Verdict Sheet asked the jury to deliberate, beyond a reasonable doubt, on a long list of what would have been typical enhancements decided by the judge prior to Blakely. The judge refused on the grounds that the prosecutor’s request would violate the defendant’s Sixth Amendment rights because Medas did not have an opportunity during the trial to respond to the enhancements.

As one possible course of action, Stith and Stuntz suggest that Congress transform the guidelines into recommendations. “Congress has the power to untie these legal knots while also restoring a system of checks and balances in federal criminal sentencing. It should amend the Sentencing Reform Act of 1984 (which established the sentencing commission and made its rules binding on judges) to change the commission's many rules into recommendations. Federal district judges would have the legal discretion to fix sentences, within the range now fixed by statutes — the statutes that were largely superseded by the guidelines.”

But is that really necessary? Professor Bowman’s recommendation (available here) to raise the upper limit of the Guidelines, by way of comparison, would preserve the Guidelines pretty much the way we knew them to operate before Blakely. It would not be necessary to convert the Guidelines into “recommendations” because, as Prof. Bowman points out, Harris was undisturbed by Blakely. Harris allows a judge to make a post-conviction factual finding that would raise the minimum sentence, so long as that minimum was itself below the statutory maximum. Stith and Stuntz’s approach could lead to wildly divergent applications of the Guidelines under their new status as “recommendations.” The inconsistencies which plagued sentencing prior the 1984 Sentencing Reform Act would surely resurface.

So, is a return to indeterminate sentencing possible? According to Stith and Stuntz, “Nowhere in Blakely does the court suggest that there is anything unconstitutional in a system of advisory sentencing guidelines. Justice Scalia went out of his way to affirm the constitutionality of the pre-1984 federal system, which allowed judges to give sentences within wide statutory limits.”

We’ve already seen one judge invalidate a portion of the guidelines because of Blakely. Judge Cassell’s thoughtful opinion in US v. Croxford presents three options for sentencing the defendant. Option one is to create a sentencing jury. Option two is to apply the portions of the guidelines that don’t violate the Sixth Amendment. Option three, which he ultimately chose, was to ignore the entire Sentencing Guidelines and sentence the defendant somewhere between the statutory maximum and the minimum.

Sounds like indeterminate sentencing to me. Stith and Stuntz don’t think this is a positive development either: “[T]hat system [indeterminate sentencing] gave judges too much discretion. How much prison time a defendant got often depended on which judge heard his case — not a healthy state of affairs, and not a world anyone should want to return to.”

I wonder what Judge Frankel would have said about all of this.

Prof. Frank Bowman Offers the US Sentencing Commission Some Advice

Shortly after Blakely was decided, Professor Frank Bowman wrote a memo outlining his thoughts on the implications of the decision and offering a few suggestions for how the Sentencing Commission could respond to the opinion.

An interesting part of the memo suggests the following changes to "save" the Guidelines:

"Assuming that one wants to preserve the fundamental Guidelines structure or at least to avoid the risks presented by letting Blakely play itself out, what can be done? I believe that the Guidelines structure can be preserved essentially unchanged with a simple modification – amend the sentencing ranges on the Chapter 5 Sentencing Table to increase the top of each guideline range to the statutory maximum of the offense(s) of conviction."

Professor Bowman is a respected criminal law scholar, especially in the area of sentencing. Professor Bowman served as Special Counsel to the US Sentencing Commission from 1995 to 1996, in addition to working for the DOJ and US Attorney's Office earlier in his career. Accordingly, his memo will probably be read very carefully by the Sentencing Commission, among others.

You can read the memo here.

(A special thanks to Tom and Amy at Goldstein & Howe for the link.)

More News from Maine

Judges in Maine are either working faster than other judges or the local papers are doing a better job of covering their sentencing decisions. There is another decision from Maine where the court has refused to depart upwards because the enhancement, although in the indictment, was not submitted to the jury. The Bangor Daily News reports that Judge Woodcock stated that, "But for Blakely, I would impose the ... increase."

The sentencing hearing is not available online yet, when it becomes available I will post a link here. For now, you can read a news story about the case here.

Friday, July 02, 2004

NACDL To Discuss Blakely at Annual Meeting

The National Association of Criminal Defense Lawyers has put together a special panel at their annual meeting in San Francisco to discuss Blakely v. Washington. Panelists include: Jeffrey Fisher, Peter Goldberger, Steve Kalar, and others. The panel will be moderated by Carmen Hernandez. The discussion will take place July 29th. Additional details can be found here.

Daily News Stories

The Chicago Tribune has covered Blakely's local impact in a story on a drug conspiracy case. In the article U.S. District Chief Judge Charles Kocoras is quoted as saying that the ruling has created a "mass uncertainty" concerning the continued viability of the federal sentencing guidelines.

Thursday, July 01, 2004

USA v. Fanfan - Drug Quantity

It appears as though federal drug law has met Blakely for the first time. On June 28th, Federal District Judge D. Brock Hornby of Portland, Maine applied the new Blakely rule to a defendant’s sentencing for conspiracy to distribute controlled substances.

Fanfan was charged with conspiracy to distribute cocaine powder. The jury verdict stated that Fanfan was guilty of a conspiracy involving at least 500 grams of cocaine power. The base offense level for such a crime is 26 (63-78 months).

Judge Hornby reasoned that Blakely constrained his sentencing discretion to the jury’s finding that Fanfan was responsible for at least 500 grams of cocaine powder. As a result of that limitation, he concludes that he may not consider Fanfan’s leadership role or any enhancements for the involvement of crack cocaine as relevant conduct.

Judge Hornby calculates that Fanfan’s sentence pre-Blakely would have been in the 188 to 235 month range (an offense level of 36), but given the restrictions imposed by Blakely, he sentenced Fanfan to 63-78 months, which represents the guideline range for at least 500 grams of cocaine powder.

A transcript of the Sentencing Hearing can be accessed here. Below, you’ll find a few key excerpts from the hearing.

“Now if that reasoning of Blakely applies here, all the jury verdict permits us to conclude in this case is that Mr. Fanfan was guilty of a conspiracy and that it involved at least 500 grams of cocaine powder.

The verdict from the jury permits no conclusion as to how much above the 500 grams the conspiracy involved. The jury verdict does not permit us to reach a conclusion about crack cocaine. Crack cocaine was not even charged in the indictment. And the verdict does not permit us any conclusion as to this defendant’s leadership role in the conspiracy.”

“Accordingly, following Blakely, I conclude that it is unconstitutional for me to apply the federal guideline enhancements in the sentence of Duncan Fanfan, which is to say, an increase in the drug quantity beyond that found by the jury, or any role enhancement. To do so would unconstitutionally impinge upon Mr. Fanfan’s Sixth Amendment right to a jury trial as explained by Blakely.

I therefore cannot follow the federal sentencing guidelines in those respects which involve drug quantity and role enhancement. Instead, I’m going to sentence the defendant based solely upon the jury verdict in this case.”

“Here the jury was asked to define -- to find the scope of the conspiracy by way of drug quantity, it was not asked that precise question, but I find that there is no other way to interpret its verdict given the facts, testimony, the evidence that was presented to the jury.

The whole case against this defendant that the jury heard was that he was the sole source of all of the drugs. And so this is not an instance where the jury could have assigned responsibility to this defendant for amounts some other member of the conspiracy had been involved in he had not, instead, the drugs all originated with him.”

“So the guideline range that I will use as I say is the 63 to 78 months.”

Blakely in the News

The New York Times has a story on Judge Cassell's opinion from the Eastern District of Utah. The story mentions two other cases where Blakely has been applied, as soon as possible I'll track those decisions down and publish them.
U.S. Judge Overturns Guidelines for Sentences, By Adam Liptak

The Washington Post has a story entitled, "U.S. Judge Cuts Farmer's Sentence In Mall Standoff."

In an article published yesterday (which mistakenly refers to Oregon instead of Washington as the sentencing scheme struck down in Blakely)by the Charleston Gazette of West Virginia. The article is entitled, "Sentencing ruling delays hearings - Supreme Court limits penalties to what jury hears." The article mentions a case where Blakely was applied to a drug case. More on this later...

Wednesday, June 30, 2004

First Federal District Court To Apply Blakely Invalidates Portions of the Federal Sentencing Guidelines

Judge Cassell, an otherwise ardent defender of the Sentencing Guidelines (See Paul G. Cassell,Too Severe?: A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums), 56 Stan. L. Rev. 1017 (2004)), has ruled that the Sentencing Guidelines are unconstitutional under Blakely v. Washington. The opinion can be read here.

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