Saturday, July 10, 2004

The Incredible Shrinking Judiciary

Slate is featuring an article entitled "The Incredible Shrinking Judiciary." The article discusses how judges are increasingly powerless in their courtrooms. The article discusses Blakely and makes the following claim:

But the Blakely case stands for something else—a recognition that sentencing should happen in courtrooms as opposed to legislatures. The case was yet another blow to the creeping power of legislatures in sentencing decisions.

I'm not sure I agree with that. Nor do I agree with the concluding paragraph:

The result won't be the Congressional power-tripping scheme we have now. Nor will it be a return to the old discretionary sentencing scheme, in which judges get the final say. Instead, when Congress and the court are done shooting each other down, the one man still standing—or actually, the 12 men still standing—will be the jury. Judicial control of the courtroom is dead, and Congressional control is foundering. The result will be an experiment in direct democracy more radical than any of Gray Davis' nightmares. The glamour days of the federal judiciary might be over, but jury duty is about to get a lot more interesting.

Blakely is not about curbing the legislature; it's about revitalizing the jury. Blakely did not curb the legislature's authority to set the range of penalties for federal crimes. Nothing in Blakley would prevent Congress from creating mandatory minimum sentences for all federal crimes, for example. I think that Blakely is about the role of the jury (which always sits in the courtroom, to my knowledge.) A corollary to that principle is that the Sentencing Guidelines, which by the most part are promulgated by the Sentencing Commission which sits in the Judicial Branch, can't usurp the role of the jury.

A possible result of the Blakely decision may be a more draconian, restrictive system of mandatory minimums and higher statutory maximums. More Congressional muscle flexing, not less. I would consider that to be an unfortunate result but I don't think that Blakely would prevent it. I, therefore, have to disagree with the basic premise of the article.

Great Stuff from Sentencing Law and Policy

Over the last 24 hours or so, Professor Berman has produced a series of thought provoking posts on his Sentencing Law and Policy Blog. Take a look:

The question is when, not whether

Gearing up for the all-star event

Severing Severability?

Food for thought from Utah

A great idea from the NACDL

Weekend plans (help greatly appreciated)

Friday, July 09, 2004

7th Circuit on Blakely

The 7th Circuit has issued an opinion in US v. Booker. In the interest of instant news I’m posting this opinion without having read it. At first glance, this appears to be a drug quantity case. I will certainly have something to say after I read it, drug quantity is the subject of my Note.

PS - The panel sure does have some big hitters on it: Posner, Easterbrook, And Kanne.

Amended Opinion in US v. Croxford

An amended version of Judge Cassell’s decision is US v. Croxford is now online. I haven’t looked at it very closely but there appears to be a new section on Judge Cassell’s “backup” sentencing plan. Judge Cassell is covering all his bases, making clear what sentences he would impose under a few different circumstance (constitutionality of the guidelines being the big one, of course.)

You can find the backup sentencing discussion on page 40.

11th Circuit Limits Blakely's Retroactive Reach

***The 11th Circuit has ruled that Blakely does not apply retroactively in a federal habeas corpus proceeding to cases on collateral review. You can get the ruling here. The case name is In re WILL DEAN and can also be found at 2004 U.S. App. LEXIS 14191.

***Correction: A reader has written in to correct my sloppy post regarding the 11th Circuit ruling. The reader wrote in to say that my post should say that: the court held that Blakely is not a new rule "made retroactive to cases on collateral review by the Supreme Court," for purposes of filing a SECOND OR SUCCESSIVE section 2255 motion.

Thanks for noticing the error. I will do my best to keep any future errors to a minimum.

New York Setencing Law

A friend from law school who is working for the public defender’s office has written to me regarding his most recent assignment:

What impact, if any, does Blakely have on New York’s persistent violent felony offender statute (NY CLS Penal § 70.08 and 70.10)

NY CLS Penal § 70.08 requires judges to increase a defendant’s sentence if the defendant is a “persistent violent felony offender.” Under 70.10, the sentence is discretioanry. Sounds like Almendarez-Torres meets Blakely.

Two More Cases

Professor Berman has posted some excerpts and links to two new Blakely cases. On of them is by Judge Cassell (Yes, that Judge Cassell).

Reform and Salvage Of The U.S. Sentencing Guidelines Post-Blakely By Professor Mark Osler

Baylor Law Professor Mark Osler has sent me a paper he authored entitled Reform and Salvage Of The U.S. Sentencing Guidelines Post-Blakely. I have not read it yet but I’m looking forward to it.

You can access Professor Osler’s proposal here.

More Mandatory Minimums

Well, we now know how Rep. Howard Coble (R - North Carolina) feels:

I have stated previously that opponents of mandatory minimums would have a far stronger argument if they could assure Congress that federal judges were faithfully adhering to the federal sentencing guidelines. Sadly, that is not always the case. Moreover, only recently, the Supreme Court in Blakely v.Washington has cast doubt upon the continued viability of the federal sentencing guidelines. While neither Congress nor the judiciary should react in haste without thoughtful consideration of the decision, it seems clear that mandatory minimums may well take on added importance in assuring appropriate sentences for serious federal crimes as a result of the Supreme Court's action.

(Taken from his testimony on July 6, before the House Judiciary Committee)

James Comey on Ken Lay and Blakely

The following is from a DOJ Press Conference where James Comey addressed the Ken Lay indictment:

QUESTION: Let me just follow up on that for a second. In your statements you've said that he oversaw a massive conspiracy, that he was a participant?

Is that different in your mind from conceived and initiated the scheme?

COMEY: I shouldn't go there. The indictment speaks for itself, as you'll -- there's more detail in this indictment about the government's allegations with respect to role than in most because the last couple pages are new, in the wake of the Supreme Court's decision with Blakely, and they lay out some of the sentencing factors, where we allege that he had a role of a leader, supervisor, organizer.

COMEY: But beyond that I can't characterize and sort those terms.

QUESTION: Can you give a range of possible jail time or civil penalties, monetary penalties?

COMEY: I cannot. The maximum jail -- if you've been at any press conference I've done before, I stay away from stacking up all the penalties. It's enormous, you know, 150 years. But it will be driven, we hope, by the sentencing guidelines, because the Department of Justice believes they are still valid and in existence. But you can't predict at the outset what they'll be, and especially in light of the Supreme Court's decision, that's even more challenging.

Update from Waco

Yesterday, a reader of this blog reported on Blakely developments from Waco, TX. You can read the post here.

Today, my source reports that Judge Smith will issue an opinion on Monday, if he issues one at all.

Updating the update - The name of this case is United States v. Charles Dennis Rucker, No. 03-CR-00039 (W. D. Tex. July 7, 2004). Here's a story from the Waco Tribune-Herald on the case.

From Sentencing Law and Policy - More DOJ analysis and strategizing

A must read from Prof. Berman. Apparently there's a longer version of the DOJ memo. Click here to read more.

Morning News

A reader of this blog writes:

News from Connecticut

Senior US District Judge Peter Dorsey of the District of Connecticut has
issued a memorandum opinion adopting what Croxford considers "the second
option" - that is, finding that upward enhancements are barred by
Blakely but that, under the maxim that courts must avoid constitutional
consequences at all costs, the Guidelines as a whole need not be found
unconstitutional. The case is US v. Toro, 3:02CR362(PCD). (Thanks to Prof. Berman for posting this information earlier in the day)

From the Third Circuit

Supplemental briefing on Blakely in the Third Circuit will be available shortly. The case is US v Mussare & Bruce. The reader cautions that due to very strict and stingly page limits, the analysis is cursory. Apparently, the court has not requested an argument on the issue.

The 11th Circuit

The following news comes from a reader in the 11th Circuit:

The case holds that Apprendi and Blakely do not
apply to a drug sentence enhanced by a judge who makes a
preponderance-of-evidence determination that the crime caused death or
serious bodily injury: "Whatever other effect the Supreme Court's recent decision in
Blakely v. Washington, 542 U.S. __, __ S. Ct. __, No. 02-1632, slip. op. at 7 (June
24, 2004), may have, it does not undermine the validity of minimum mandatory
sentences, at least not where the enhanced minimum does not exceed the

SPERO v. USA , No. 03-14586 (11th Cir. July 08, 2004)

To read the full text of this opinion, click here

Good Stuff

Several readers have written in with their views, opinions and daily Blakely encounters. A reader from Georgia writes:

I have been wanting to file a motion for over a year on the separation of powers issue & unconstitutionality of the guidelines.

Much more to come, stay tuned…

Thursday, July 08, 2004

How You Can Share Information On This Blog

I've been contacted by several people in the short life of this blog who want to share Blakely developments with this blog. If you have information to share you can either:

- Post your information using the "comment" link at the bottom of each post, or

- Send me the information directly at

If you don't want me to use your name, just say so and I'll leave your name off any information you provide.

How Will Martha Stewart's Sentence be Affected?

That's what Marcia J. Oddi of the Indiana Law Blog asks.

I've posted my thoughts on that in the "comments" section.

Ken Lay's Indictment - Now Blakely Compatible

Ken Lay's indictment has been cleaned-up so that it's compatible with Blakely. Blakely followers will find page 64 to be of primary interest. You can see a copy of the indictment here.

Blakely Posts At SCOTUS Blog

Marty Lederman has a series of posts on Blakely at the SCOTUS Blog. (Sidebar - I got my start in the blogging business working at Goldstein & Howe last summer.) Here are some highlights:

More on the DOJ Response to Blakely - this post poses some good questions about the first argument in the DOJ sample brief which is that until the SC rules otherwise, lower courts are bound to adhere to the Guidelines

DOJ's Blakely Policies and Legal Positions

Esteemed Court reporter Lyle Denniston also has a few posts on Blakely at SCOTUS blog:

Blakely: a ruling with an immediate impact

Whither the Sentencing Guidelines?

Transcript of Hearing in U.S. v. Watson

From the folks at USSGuide:

on June 30, 2004 before Judge Jackson (D.D.C.) in U.S. v. Watson, CR 03-0146. Judge Jackson concluded that an earlier sentence he had imposed was unconstitutional under Blakely. Perhaps the most interesting aspect of this transcript was the Government's rather startling argument that "the guidelines are not statutes. They're sentencing rules that have been entrusted to the Commission . . . . For that reason, there's a strong argument that the guidelines do not implicate the concerns addressed by Apprendi." (Transcript, id., at p. 6, line 7-14). As a matter of interest, Judge Jackson merely responded: "Beg your pardon?"

Thanks to USSGuide, you can access the transcipt of the hearing here.

Prof. John Coffee On Blakley's Impact on Keny Lay's Possible Sentencing

Columbia Law Professor John Coffee (who happens to have been my Corporations professor last semester) has been interviewed by NPR regarding Ken Lay's possible sentencing and how Blakely will affect it.(The Blakely part comes at about the 4 minute mark)

Morning News

I was recently alerted to the presence of another site which is tracking Blakely updates. USS Guide has a site worth looking into, you can access the Blakely page here. Many thanks to Peter Schmidt of USS Guide for the email.

Case developments:

Patterson v. United States, 2004 U.S. Dist. LEXIS 12402

Footnote three addresses retroactivity issues, concluding that the defendant cannot avail himself of Blakely because Blakely is an extension of Apprendi, which the Court has already said is not retroactive.

People v. Lane, 2004 Cal. App. LEXIS 1079

Additional briefing on Blakely issues was requested by the California Court of Appeals. It’s unclear what the issue is.

Wednesday, July 07, 2004

Wow! People are reading this blog

Yesterday was a big day for the Blakely blog. The following notable events took place:

- I had several fruitful email exchanges with Professor Berman, who runs the very excellent Sentencing Law and Policy Blog. Professor Berman even included a very nice plug about this blog. If you only go to one Blakely-related blog this whole summer, go to Sentencing Law and Policy; if you go to two, see the Blakely Blog.

- I had my first ever contact with a “secret” source. A source deep within the government. Very Tom Clancy.

- Three people posted comments to one of my posts, including a citation correction. Figures.

- One of this blog’s readers wrote in to offer some information from news in his hometown.

- The EIC of my Journal agreed that my Note is not dead (yet).

- I wrote to Jeff Fisher, who argued Blakely, to offer my congratulations and refer him to the blog. He wished me luck.

All very exciting, especially the Deep Throat part. Keep reading, I appreciate it.

Another Judge Strikes Down the Guidelines - News from Waco, TX

A reader of this blog was kind enough to write to me with the following report from Waco:

Today, United States District Judge Walter Smith, Jr., Chief District Judge of the Western District of Texas, declared the Sentencing Guidelines unconstitutional. I am awaiting word tomorrow morning whether there will be a written opinion or not. His holding was that to uphold the Guidelines as would be allowable under Blakely would "allow the Government to select the charges and the punishment for the offense in question," violating the Separation of Powers provision of the US Constitution.

I don't recall a separation of powers argument in any of the previous decisions which have struck down the Guidelines. We eagerly await an opinion...

DOJ - If you can't apply the Guidelines, just give them "due regard"

The final portion of the Government’s Sample Brief walks a fine line between following the Guidelines and giving them their “due regard.” The Government asserts that even if the judge does not strictly follow the Guidelines the judge can still “consider” the Guideline range that would have applied had it not been for Blakely. This is suspect.

The Government argues that indeterminate sentencing is acceptable under Blakely. Fair enough. But kinda using the Guidelines to say, “guide” but not direct the judge’s sentencing decision comes awfully close to crossing the line (if it doesn’t).

Depending on what giving “due regard” means, consider this passage from Blakely which comes right after the Court says that indeterminate sentencing is constitutional:

Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence—and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury.

The DOJ's Best Argument?

In my opinion, the best argument from the government's Sample Brief for why Blakely does not apply to the Guidelines turns on the understanding of what a "statutory maximum" means and what the top of the guideline range means. The government argues that the top of the guideline range is not the statutory maximum and to rule otherwise would be to create a second statutory maximum. The government sets this argument up by comparing the federal sentencing system, in which there is only one statutory maximum, with the Washington system which has two statutory ranges.

Here's a passage from the government's sample brief:

In so ruling, the Court clearly viewed the Guidelines enhancements not as "statutory maximums" (requiring proof to a jury beyond a reasonable doubt), but as rules channeling the discretion of judges within the congressionally set maximums in the U.S. Code. Indeed, the Court explicitly said as much in Edwards, which it notably cited with approval in Apprendi:
Of course, petitioners’ statutory and constitutional claims [that the court must base its Guidelines sentence exclusively on the cocaine-only facts found by the jury] would make a difference if it were possible to argue, say, that the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only conspiracy. That is because a maximum sentence set by statute trumps a higher sentence set forth in the Guidelines.

Edwards, 523 U.S. at 515; Apprendi, 530 U.S. at 497 n.21; see also Witte, 515 U.S. at 399-400 (although Guidelines enhancement for uncharged conduct resulted in higher Guidelines range than otherwise would have applied, range "still falls within the scope of the legislatively authorized penalty" and is thus constitutionally permissible); Mistretta, 488 U.S. at 396 (Guidelines "do not . . . establish[] minimum and maximum penalties" for crimes).
The Court has thus analyzed the Guidelines as channeling judicial discretion within congressionally set statutory maximums, not as creating lower statutory maximums for the offenses defined by Congress.

In the end though, I don't think that distinction makes a difference. Justice Scalia's opinion is very clear on this: "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." To me, that statement makes the government's distinction irrelevant. In fact, the government’s brief seems to be making the argument that Scalia directly rejects. The pertinent “maximum” is not the one enacted by Congress for the offense, it’s what the jury’s verdict or the defendant’s plea authorizes.

Breaking News - DOJ Sample Brief & Memos

Just moments ago, Professor Berman's Sentencing Law and Policy Blog posted four documents from the DOJ which came from an anonymous source. You can see his post and download the documents here. I too received those documents, from the same source.

The most interesting document is the DOJ Sample Brief which was alluded to in the DOJ Memo from James Comey. Part I of the 36 page brief argues that Blakely does not invalidate the Sentencing Guidelines. Part II argues that if the court finds the Guidelines unconstitutional, it should "impose a sentence within the statutory maximum and minimum, with due regard to the sentences prescribed by the Guidelines for similar offenses and offenders."

I was also sent three additional files which appear to be memos written to judges by AUSAs addressing sentencing concerns. The memos argue that Blakely does not apply to the Guidelines and suggest how the judge should sentence the defendant should the judge decide not to apply the Guidelines.

More detail and analysis to come.

Morning News Stories

The Salt Lake Tribune has confirmed that the Senate Judiciary Committee will meet on July 13th to discuss Blakely's impact on the SG. Apparently Senators Hatch and Leahy will talk about ways to preserve the guidelines, here's a relevant passage from the article:

The senators agreed and said the Senate should take the lead in making any necessary changes to retain the guidelines, which are used to calculate sentences based on various factors such as criminal history and the severity of a crime.

Bloomberg News has a story on the DOJ memo concerning Blakely.

In a related story from the Seattle Post-Intelligencer, the paper discussed how prosecutors are being urged to list enhancements in indictments.

Tuesday, July 06, 2004

DOJ Memo Not Working (Sort of)

The first line of attack according to the DOJ memo is for AUSA's to assert that Blakely does not invalidate the Guidelines. That's apparently what Assistant U.S. Attorney Katia Jestin argued before Judge Frederic Block. In a story from Newsday, it looks like that's not working. Here's a relevant passge from the article:

Assistant U.S. Attorney Katia Jestin said the Department of Justice took the position that the recent Supreme Court decision does not apply to the federal sentencing scheme.

"I am not sure I agree with the government," Block responded, indicating he tended to agree with some other federal judges who had found the federal rules unconstitutional.

But all is not lost. Judge Block apparently did not adjust his original 15 year sentence, even in light of Blakely. Newsday says that the judge thought the sentence had a measure of fairness.

Official DOJ Memo - From James Comey to Your Desktop

Thanks to Professor Berman’s excellent blog “Sentencing Law and Policy,” we now have a glimpse inside the DOJ’s thoughts as they pertain to Blakely.

The Government's position is that the Guidelines are constitutional. The bulk of the memo, however, is dedicated to advice on what to do if say, your judge is Paul Cassell. The memo says that DOJ is putting together their arguments for why the Guidelines survive Blakely. So, stay tuned...

You can access the memo here.

Blakely Hearing in the Senate Next Tuesday

The word on the street is that the Senate Committee on the Judiciary will hold a hearing on Tuesday, July 13, 2004, to discuss Blakely and the Sentencing Guidelines.

I hope to attend. If I do, I'll provide a full report.

The Handwriting is on the Wall

Judge Batts, of the Southern District of New York, offers her view of Blakely's impact on the Guidelines in a passage from US v. Gonzalez, 2004 US Dist LEXIS 11760:

"Needless to say, Blakely calls into serious question the long-standing practices of federal courts in implementing the United States Sentencing Guidelines, wherein courts, applying a preponderance of the evidence standard of proof, apply offense [*5] level enhancements that result in more severe sentences on the basis of facts which were neither submitted to a jury nor allocuted to by the defendants themselves, or, as the Majority phrased it in Blakely, "based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong." Blakely, 2004 U.S. LEXIS 4573, 2004 WL 1402697, at *8. While the majority opinion in Blakely, in a dismissive footnote, denies that Blakely is directed at the Federal Sentencing Guidelines, n1 this Court agrees with Justice O'Connor who, in her dissent, said "the structure of the Federal Guidelines likewise does not, as the Government half-heartedly suggests, provide any grounds for distinction ... If anything, the structural differences that do exist make the Federal Guidelines more vulnerable to attack." Blakely, 2004 U.S. LEXIS 4573, 2004 WL 1402697, at *16 (O'Connor, J., dissenting). The Court feels that to ignore the handwriting on the wall would be to the peril of the sentencing process."

Correction:: many thanks to the reader who corrected my mistake on the cite for this case.

Jeffrey L. Fisher - A Rising Star

Learn about Jeffrey L. Fisher, he argued two cases in the Court last term, including Blakely and won both. His 2-0 record is even more impressive when you consider that he represented criminal defendants in both cases. Not bad for a 33 year old attorney.

My favorite moment from Mr. Fisher's argument in Blakely was the following:

QUESTION: I guess the tough question is whether the sentencing guidelines, or rather the Sixth Amendment are unconstitutional, right?

MR. FISHER: I think the Sixth Amendment is constitutional, Justice Scalia -

Prof. Mark Allenbaugh - The Supreme Court's Decision in Blakely v. Washington: A Watershed Ruling that will Usher In Much Needed Sentencing Reform

Professor Allenbaugh has written a very thoughtful article for which you can access here. Professor Allenbaugh's article sketches some of the post-Blakely options for sentencing reform in the US.

Monday, July 05, 2004

The DOJ Finally SPeaks Up (Sort of); Scholars Disagree Over Whether Blakely Helps Defendants has an article, available here, which contains the following quote from a DOJ spokesman:

"The department is currently reviewing the decision and its ramifications in order to properly guide our prosecutors," said Justice Department spokesman John Nowacki.

Well, we figured that.

Also of note, the last two paragraphs of the article discuss Blakely's impact on plea bargaining.

DC Circuit Tease

In US v. Watson, 2004 U.S. App. LEXIS 13780, two DC Circuit judges (Edwards and Randolph) denied an emergency order for a stay in a case which the defendant appears to have invoked Blakely.

I arrive at that conclusion from Judge Roberts opinion which would have granted the stay, citing Blakely v. Washington, No. 02-1632, slip. op. at 9, n.9 (S. Ct. June 24, 2004) ("The Federal Guidelines are not before us, and we express no opinion on them.").

Commentators Speculate that the Court May Hear A Special Argument Sometime Soon

The Government has two options if it wants a quick ruling by the Supreme Court on the constitutionality of the Sentencing Guidelines following Blakely.

Option one - The DOJ could bring an appeal before judgment by the court of appeals, a rarely used procedure but one that will likely be approved given the circumstance.

Option two - The Government could file an emergency appeal, requesting immediate resolution.

Of course, this assumes that the Government feels it has a good case to appeal.

The Associate Press has a story on the Government's options here.

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