Saturday, July 17, 2004

Back to the future has posted a truly amazing story about a man who turned himself in to authorities after he skipped out on his sentencing hearing, twenty years ago! Ok, so why is this Blakely related? Because the judge is required to sentence him under the law as it stood in 1984, when he committed the offense. That's right, no guidelines. Wait a minute, that's kinda like 2004. After serving 45 days in prison, the judge told the man to go home.
This is just too much fun.

Case Developments

Judge Goodwin: Let’s Wait a Little Longer
Judge Joseph Goodwin of the Southern District of West Virginia issued the following order in United States v. Thompson, 2004 U.S. Dist. LEXIS 13213 (NO. 2:03-00187-02), which basically calls a sentencing “timeout” of sorts. 

The court FINDS that consistent application of the law is of paramount importance in sentencing matters. Therefore, in the interests of justice, the court will move all sentencing hearings to a date after October 15, 2004. The sentencing hearing in this case that was previously scheduled for July 16, 2004, at 10:00 am is now SCHEDULED for October 21, 2004, at 10:00 am. The court will consider rescheduling the hearing for a earlier date on motion of a party and for good cause shown.

Judge Sachs: I’m using the pre-Guidelines sentencing system
From the Western District of Missouri, Judge Howard F. Sachs declares: Unless and until a new system is devised, I anticipate using pre-Guideline methods of sentencing
The case is US v. Lamoreaux, 2004 U.S. Dist. LEXIS 13225 (No. 03-00399-01/02-CR-W-HFS):  

Blakely does not invalidate indictments but simply affects punishment in certain instances, where a jury has not found enhancing factors which would cause sentencing beyond the statutory maximum. The Blakely analysis lends some support to an argument that base offense levels should be treated as fixing statutory maximum sentences, contrary to the rulings of the various Courts of Appeal. The court is aware that some district judges, in the wake of Blakely, have grudgingly used base offense levels exclusively in setting sentences. See, e.g., United States v. Shamblin, 2004 WL 1468561 (S.D.W.Va. 2004), relying on the practice first used by Chief Judge Young in United States v. Green, 2004 WL 1381101 (D.Mass. 2004), a pre-Blakely decision which anticipates the Blakely holding on enhancements. News items confirm that exclusive use of base offense levels tends to yield excessively lenient punishment, contrary to Congressional intent, Sentencing Commission formulations and judicial good judgment.

I have indicated in several courtroom proceedings that I find more persuasive the ruling of Judge Cassell in United States v. Croxford, 2004 WL 1462111 (D.Utah 2004) concluding that we have a constitutionally failed system of sentencing, and must disregard both base offense levels and enhancements as mandatory calibrators at sentencing in the wake of Blakely. n1 Guideline provisions seem generally incapable of being severed in a sensible fashion. Unless and until a new system is devised, I anticipate using pre-Guideline methods of sentencing, giving due deference to facts and factors developed for sentencing use-but of course subject to statutory restrictions. If a twenty year sentence is the statutory maximum in this case there should be no impediment to sentencing, if necessary, that balances the need for appropriate severity and sound moderation.

Judge Witt: Tennessee’s sentencing regime may be in big trouble
From the Criminal Court of Appeals in Tennessee, Judge James Curwood Witt, Jr wrote the following in State v. Ramey, 2004 Tenn. Crim. App. LEXIS 636  (No. E2003-01840-CCA-R3-CD) 

We further recognize that the rule in Ralph Howard Blakely may well obliterate Tennessee's procedure for determinate sentencing by a judge utilizing statutory enhancement factors. See Tenn. Code Ann. § 40-35-114 (enumerating statutory enhancement factors). If so, and if Ralph Howard Blakely is determined to be applicable to the present case, the judge's application of the abuse-of-private-trust enhancement factor violates the defendant's right to jury trial. See Ralph Howard Blakely, slip op. at 9-10. We believe that in that circumstance, however, the application in the present case of the Apprendi-approved history of prior convictions alone justifies the defendant's mid-range sentence.


News Stories and Blog Updates

I have quite a few news stories to post. I've divided them into two categories: easy to read and hard to read. The difference has nothing to do with the subject matter, or the use of the work "ukase," rather it all has to do with whether the site has a dreaded registration requirement.
Come, on. Register.

Divide and Rule by GW law professor Jeffrey Rosen, who writes: 

This conflict between pragmatists and legalists was at the center of other important battles on the Court this term.
Next month, the state of South Carolina will hear a Blakely-based appeal to the state's sentencing guidelines. The article is entitled: Sentencing guidelines decision affects several S.C. cases 

The Knoxville News-Sentinel (Tennessee) reports: Judge tests limits of new federal sentencing

No registration required.

From the New York Law Journal: 2nd Circuit Is Next Stop in Saga of Martha Stewart. Here an interesting snippet: 
And the appeal, which will be handled by a team led by Walter Dellinger III of O'Melveny & Myers in Washington, D.C., is also expected to renew the Stewart team's challenge to the sentence under the U.S. Sentencing Guidelines in light of the U.S. Supreme Court's recent decision in Blakely v. Washington.

Newsday: Judge cites Supreme Court ruling in releasing Stewart
The Texas Lawyer has this article from the future (07-19-2004 ): 5th Circuit Says 'Blakely' Doesn't Apply to Sentencing Guidelines
The Kentucky Post reports: Judges left confused by demise of guidelines

From the Sunshine State (not Denver, Colorado, contrary to what some may believe): Judges asked to assess ruling. A class action request of sorts? (I admit that I've never heard of this procedure, can anyone shed light on this in the comments?) Here's the article's opening line: 
A Fort Lauderdale lawyer on Friday asked all 24 federal judges in the Southern District of Florida to rule on the constitutionality of a far-reaching U.S. Supreme Court decision on sentencing guidelines.

From Slate, we have an article from the omnipresent Doug Berman: Supreme Court Cleanup in Aisle 4: Blakely is too big and messy to ignore
Blog Updates.
From Sentencing Law and Policy: California dreaming...
From the Mamas and the Papas: California Dreaming...

Friday, July 16, 2004

Another Blakely Opinion in the 7th Circuit

Marcia Oddi of The Indiana Law Blog has alerted me to Simpson v. US,  a case from the Seventh Circuit. The opening paragraph of the opinion states:

William Simpson asks this court’s permission to file a second or successive collateral attack under 28 U.S.C. § 2255. He proposes attacking his conviction under Blakely v. Washington, 124 S. Ct. 2531 (2004). For the reasons that follow, we dismiss Simpson’s application without prejudice to renewing his request should the Supreme Court make the rule announced in Blakely applicable to cases on collateral review.

2 Cases decided by Judge Jack Weinstein - EDNY

I've been sent two opinions by Judge Weinstein of the Eastern District of New York. Judge Weinstein, in the past, has not been afraid to depart downwards. His opinions, which I have not read, promise to be very interesting. For now, here are the cases.
US v. Khan
US v. Landgarten

Morning News Stories

Apparently, Martha Stewart is going camping (not the kind of camping you’re thinking of, probably) 
The Washington Post reports: Judge Turns Down Stewart Defense 
The Boston Globe writes: Federal court weighs in on guidelines 
Dahlia Lithwick, who is no fan of this site, has written an article entitled, “No-Good Lazy Justices.” The article discusses Sentencing Law and Policy extensively, which I have said is the best site around on all this stuff. But let me say this, I know this isn’t Sentencing Law and Policy but this is a pretty good blog too, you know. Check out the counter I installed at 2 pm yesterday. Not bad, huh? This blog keeps pretty good tabs on Blakely developments and on occasion says a smart thing or two. So, feel free to mention the Blakely Blog in the future, ok? 

The Recorder has an article entitled, "Calif. Supreme Court to Weigh 'Blakely' Impact in State" - The article suggests that Blakely may soon be illuminated -- at least in California.   
The American Constitution Society recently conducted a Supreme Court round-up. You can access the transcript here, and yes, there’s a Blakely discussion towards the end.  
Arizona Update: The Yuma Sun is reporting on the first case affected by the Blakely decision in Arizona. The paper reports, "Decision has immediate impact on manslaughter case in Yuma."

United States V. Einstman - "We have to look a human being in the eye and pronounce his fate..."

From the Southern District of NY, Judge McMahon has issued an opinion in United States V. Einstman, 2004 U.S. Dist. LEXIS 13166.
The opinion handles a number of Blakely issues including the constitutionality of the SG, severability as well as a number of other topics. This opinion is distinct from the others thus far in that it endeavors to discuss some of the more “human” aspects of sentencing. Read it and I think you’ll see what I mean.
For quick review, I have selected a few passages from the opinion (but you really should read the whole thing): 

As to point one, I continue to believe - along, apparently, with several member of the United States Supreme Court, as well as a number of my brothers and sisters in various district courts - that the necessary implication of Blakely is that the USSG as they currently exist must be unconstitutional. 


As to point 2: I have read the Seventh Circuit's majority opinion in Booker, Judge Easterbrook's spirited dissent in that case, and the Fifth Circuit's opinion in United States v. Pineiro, 200 WL 1543170 (5th Cir. July 12, 2004), as well as the Government's Blakely brief. I, like Judge Posner, conclude that we should not simply adhere to the Guidelines system until the Supreme Court clarifies its position on the USSG. I cannot improve on Judge Posner's articulation of the fallacy in the Government's insistence that lower courts must pretend that Blakely never happened and blindly follow Mistretta and its progeny - precedents of whose constitutionality my own Circuit Court of Appeals is obviously mistrustful, see United States v. Penaranda, 2004 WL 1551369 (2d Cir. July 12, 2004)(certifying questions concerning the constitutionality of the USSG after Blakely to the United States Supreme Court).  
[*16]  I therefore adopt his reasoning as my own on this issue. I take the liberty, however, of adding a word from the perspective of a district judge.

I agree wholeheartedly with the Government's position that the USSG are not severable, so the unconstitutionality of the provisions concerning the judicial fact-finding of sentencing enhancements necessarily means that the entire USSG scheme falls. 

The result - the return to indeterminate sentencing, in which judges are free to consider all relevant factors and to sentence the defendant anywhere between the statutory minimum (if there be one) and the statutory maximum n3 - should not be seen as a negative.  
[*23]  I seriously doubt that today's district judges will fail to consult the Guidelines, or fail to be guided by them in most cases, simply because those provision are now in fact guidelines rather than mandates.

Thursday, July 15, 2004

Summarizing the Afternoon's Events

A series of useful posts are up on Sentencing Law and Policy. I’ll continue to cross reference Prof. Berman’s posts but frankly, if you’re a true Blakely fanatic, you really should be reading both the Blakely Blog and Sentencing Law and Policy. Here goes…

More SCOTUS Scuttlebutt - an interesting look into an email exchange between Prof. Berman and Lyle Denniston of the SCOTUS blog

The Sixth Sense - it’s hard to describe this post, you just have to read it

District Court dynamics - an interesting look into US District for the SDNY Judge Lewis Kaplan’s reasoning in US v. Roberts.

And, finally, Spanning the globe, Blakely style. A collection of Blakely news stories.

New stuff...

Some news from the Martha Stewart case is available on U.S. District Judge Miriam Cedarbaum denied Stewart's lawyer's argument that the guidelines are unconstitutional. Basically, Martha's sentence won't require any enhancements so she will not benefit from Blakely.

Why the Bowman proposal is unconstitutional

Yesterday, I had a very pleasant email exchange with Rachel Barkow, a professor of law at NYU and one of the panelists at Tuesday's Senate hearing. (She even admitted to reading this blog, imagine that!) Although I have posted her official testimony, for which she was only given 4 minutes to explain, I'd like to highlight an important aspect of her testimony.

Based on news stories, and rumors, it appears as though the Senate is looking for a quick fix to the current sentencing "situation." Among the possible reform ideas being kicked around, some have suggested that Prof. Bowman's (available here) is in the lead. Here's the gist of the proposal from the memo - 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.

Below, I've pasted a segment of Prof. Barkow's testimony which addresses the constitutionality of the Bowman proposal. (For ease, I've omitted footnotes, if you want to read the footnotes, this portion of Prof. Barkow's testimony appears on pages 9-11.) I think this merits further discussion.

Prof. Barkow:

Congress should flatly reject this proposal as unconstitutional. As I have expressed elsewhere, I believe that Members of Congress take seriously their oath to uphold the Constitution. In this instance, obeying the oath requires rejection of Professor Bowman’s proposal because it unconstitutionally interferes with the jury guarantee. Apprendi made clear that “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” A range is increased either by raising its upper limit or its lower one. In both instances, “[t]he degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant’s very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment.”

That is why five Justices – a majority of the Court – stated in Harris that Apprendi’s logic applies to factors that increase a minimum sentence just as it does to factors that increase a maximum sentence. Congress cannot ignore the logic of Apprendi without defying its independent obligation to uphold the Constitution.

Moreover, it is far from clear that the same five Justices that approved of the mandatory minimum law in Harris would uphold this proposal. One of the votes upholding the defendant’s sentence in Harris was Justice Breyer’s. As noted, Justice Breyer stated that Apprendi’s logic applied, but he was not yet prepared to accept the outcome of Apprendi because he “believe[d] that extending Apprendi to mandatory minimums would have adverse practical, as well as legal consequences.” Justice Breyer was concerned that taking Apprendi to its logical conclusion would lead to the destruction of the Sentencing Guidelines. Now that Blakely makes that all but a foregone conclusion, the premise of Justice Breyer’s vote in Harris is undermined. Accordingly, it is uncertain if not unlikely that Justice Breyer would accept a modification of the Guidelines along the lines suggested by Professor Bowman.

Justice Scalia may also disapprove of the proposal. He joined the plurality opinion in Harris, but he also joined the Court’s opinion in Apprendi. The Court’s opinion in Apprendi makes clear that, if a legislature revised the its criminal code in an attempt to duck the Court’s rule, the Court would then “be required to question whether the revision was constitutional under this Court’s prior decisions” There was no evidence in Harris that Congress enacted the mandatory minimum provision with any intent to bypass the criminal jury. In contrast, there is no other reason for adopting Professor Bowman’s proposal. The Court is likely to view the two situations very differently.

The unconstitutionality of this proposal should make it a dead letter. But it is fundamentally flawed in a second respect. It also undermines the reasons for having guidelines in the first place and would have disastrous policy consequences. Under this proposal, a judicial decision to sentence a defendant below the Guidelines floor would be subject to de novo appellate review while a decision to increase a sentence above the floor would be subject either to no review or abuse of discretion review. This asymmetry has no rational basis and would lead to precisely the kind of unwarranted disparity the Guidelines were intended to eliminate.

There was a good reason behind the Sentencing Reform Act’s mandate that the maximum sentence for each range would not exceed the minimum by more than the six months or 25 percent, whichever is greater. Sentencing ranges were narrowed precisely because the existing statutory ranges were seen as too broad and creating too much disparity. This proposal would recreate the potential for unwarranted disparity. The only difference is that this proposal would also serve to increase sentences. But there is no evidence that an across-the-board increase of Guidelines sentences is justified or wise. It would be unnecessarily costly and unjust to introduce such a scheme without some showing that sentences need to be increased to effectuate the purposes of punishment.

Indeed, it goes against the entire purpose and structure of the Guidelines to engage in such asymmetric manipulation. Judge Cassell has eloquently explained the dangers of an approach that favors departures in one direction. To paraphrase his opinion, under such a scheme the government would be able to say to each defendant, “‘what’s mine is mine, what’s yours is negotiable.’” This undercuts the entire premise of the Guidelines, which, as Judge Cassell explains, “are a holistic system, calibrated to produce a fair sentence by a series of both downward and upward adjustments.” Judge Cassell cautions against “look[ing] at only one half of the equation,” as Professor Bowman’s proposal does, because it would inevitably pull criminal sentences in one direction. In this case, sentences would be pulled ever upward, and there is no reason to believe the resulting punishment would be either just or rational. Judge Cassell states that “[t]he Congress would never have adopted such a one-sided approach.” It certainly should not do so now.

News Stories

Calif. Law Professor Leads Effort to Rehear 'Blakely' - as has been mentioned previously, the state of Washington has hired Hastings College of the Law professor Rory Little to spearhead Washington's request for a rehearing. SCOTUS guru Tom Goldstein was interviewed for the article and according to him, Washington's chances don't look good.

Wednesday, July 14, 2004

Morning News

An editorial from the Washington Post entitled, "A Supreme Mess," is available. The article even cites Marbury v. Madison, that's a hard one to slip into an editorial. Well done.

US v. Montgomery - 6th Cir.

You can get the decision as a pdf file here. As has been previously mentioned, the 6th Circuit ruled that the SG are unconstitutional under Blakely.

More details tomorrow...

An AP story on the decision in now available.

Evening Update

For those of you who need your bedtime update:

The California Appellate Courts will soon take up the following questions:

In addition to the issue raised in the petition for review, the parties shall address the following issues:

(1) Does Blakely v. Washington (June 24, 2004) __ U.S. __ [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence?

(2) If so, what standard of review applies, and was the error in this case prejudicial?

An interesting article: Hatch exploring a 'fix' for sentencing turmoil
No worries, the article says that Senator Hatch is seeking a "temporary bipartisan fix."

En Banc 4th Circuit Set to Hear Blakely Appeal

I have been informed that the en banc 4th Circuit will soon hear Blakely arguments in US v. Mohamad Y. Hammoud, 03-4253. Argument is set for Monday, Aug. 2nd.

More Blakely News

Thanks to Dana for spotting these article:

New York Law Journal: 'Blakely' Prompts Question From 2nd Circuit to High Court

The Recorder: First 'Blakely' Sighting at 9th Circuit; More Expected

What's Next? - Lyle Denniston of SCOTUS Blog

Lyle Denniston has posted some "insider" thoughts as to the sense of urgency (or lack thereof) for the Court to resolve the post-Blakely "situation." Here's one line from a must read post:

In short, along the marble hallways, there is no detectable sense that a crisis has arisen that the Justices must act swiftly to quell.

And Marty Lederman, also of SCOTUS blog, asks: Blakely Split Intensifies -- But has the court declared a federal statute unconstitutional?

6th Circuit - SG Unconstitutional

Call it a train wreck, chaos, disruptive or an opportunity, the 6th Circuit has joined the fray and declared the SG unconstitutional.

The case is US v. Montgomery.

Update: You can get some good analysis of this decision at Sentencing Law and Policy.

Blakely Updates

As one of my classmates reminds me, the last time I updated the blog was 4:30 yesterday. So, here's some fresh (and not so fresh) news:

News Stories has an article discussing U.S. District Judge Stewart Dalzell’s decision to sentence a drug dealer to a decidedly lighter sentence due to Blakely. has an article on the Martha Stewart sentencing, available here.

More 7th Circuit news is available here - this article discusses a fourth sentencing option adopted by U.S. District Judge Michael J. Reagan: wait.

Read about Blakely developments in the state of Tennessee here.

From the Deseret News: Sentencing angst deepens

Also from Desert: Former convict gets 5-year term for illegally possessing firearms. In this case the judge sentenced the defendant to the top of the base guideline range after finding that Blakely prohibited his finding any enhancements.

The NYT has several stories:
High Court Sentence Views Flummox Judges

Justices' Sentencing Ruling May Have Model in Kansas

Stewart Sentence Could Mean Prison Time

Slate's Jurisprudence: High Court's Sentencing Chaos (audio)
NPR's Madeleine Brand talks with Slate legal analyst Dahlia Lithwick about a recent U.S. Supreme Court ruling that challenges established sentencing guidelines for several states and the federal judiciary. The ruling, Lithwick says, is causing judicial chaos.

Case Developments

From the "nice try" files, the 7th Circuit rejects a Blakely appeal:

Before Posner, Easterbrook and Kanne:

Just before oral argument, Bahena filed a supplemental brief contending that Blakely v. Washington, No. 02-1632 (U.S. June 24, 2004), implies that the Sentencing Guidelines violate the sixth amendment by withholding critical decisions from the jury. Bahena, who pleaded guilty, is not well situated to say that he has been deprived of his right to a jury. Moreover, his argument does not depend at all on Blakely. He does not contend, as Blakely did, that his sentence was increased by virtue of a fact neither admitted by the defendant nor submitted to a jury for decision. A quantity of drugs was alleged in this indictment, and Bahena pleaded guilty to the charge. Ever since Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), [*4] we have insisted that indictments allege, and prosecutors be prepared to prove beyond a reasonable doubt, the quantities of drugs that determine statutory maximum sentences. See United States v. Nance, 236 F.3d 820 (7th Cir. 2000). Five kilograms, which this indictment alleged, raises the maximum lawful sentence to life imprisonment. 21 U.S.C. § 841(b)(1)(A)(ii). The written plea agreement says that the prosecutor and Bahena agree that the actual quantity of cocaine Bahena possessed was 35 kilograms. That admission suffices under Blakely to support a sentence.

Some excellent posts from Sentencing Law and Policy:

Thoughts and holdings on Blakely retroactivity

Revised King-Klien Beyond Blakely

What the....? (aka The 9th Circuit mumbles)

A means for Supreme Court (re)consideration

Another helpful (future FSR) resource

Tuesday, July 13, 2004

Some observations from today’s hearing*

The following is collection of thoughts I have put together following today’s hearing in the Senate. Rather than recap the testimony of everyone who appeared before the committee, I’ve collected a “food for thought” approach to this summary.

Kansas. The state of Kansas reformed its sentencing guidelines in the wake of Apprendi and many have pointed to Kansas as model for federal reform. For more on that thought, see the Sentencing Law and Policy post entitled, “Can the Kansas system work for the feds?” I was surprised, however, at how little play the Kansas system got during the hearing. (In keeping with our baseball motif for the day we can probably blame that on the fact that Kansas is a small market, or on Bud Selig, take your pick.) In fact, only Mr. Vinegrad discussed the Kansas sentencing system, and only briefly.

Is the status quo chaos? Several of the panelists disagreed over whether the current “situation” let’s say, is disruptive/chaotic/a mess. My impression is that the senators think the status quo is chaotic and disruptive, at least that’s what Hatch, Leahy and Sessions indicated.

Consensus: Congress should wait. There appears to have been a consensus (or a near consensus) that the Congress should wait for the Supreme Court to weigh in before it makes any changes to the guidelines. The first panel was unanimous in that regard; the second panel many not have been unanimous on this point.

Consensus: The theoretical framework of the SG is sound, it’s implementation is less than perfect. I think there was agreement on this point. No one expressed an interest in a return to indeterminate sentencing. This topic raises an interesting question. During the hearing it was suggested that prior to 1987 a sentence could only be appealed if the sentence violated the constitution. I’ll go on the record as saying that I don’t think that’s right. I recall reading that sentences could be appealed if, for example, the judge relied on false information in the imposition of a sentence. I recall reading this somewhere. Any help would be appreciated.

The DOJ brief.
It was my impression that the Hon. John Steer’s testimony was a recitation of the DOJ brief.

The Feeney Amendments. The Feeney Amendments and the PROTECT Act generally, crept into the discussion.

Bowman proposal. Prof. Barkow suggested that the Bowman proposal would be inconsistent with Blakely. This merits further discussion.

In the end, I think Prof. Barkow recommended making the guidelines “advisory” rather than rules.

Mandatory Minimums. I think mandatory minimums were given a bipartisan trouncing today. If someone was willing to defend them, they were silent. There was a lot of mandatory minimum bashing today coming from academics and both parties.

Side Bar (Random Comments)

Judge Sessions’s made the point that the SG disproportionately impact Native American communities. I have never thought of that.

I must say that I was very impressed with the questions asked by Senator Durbin and by Professor Bowman’s testimony. Both were excellent today.

I was very impressed by our academic and political leaders today. It appears as though everyone is moving carefully, and cautiously on this issue. I hope we continue to think this through without resorting to any quick legislative fixes. We’ve been presented with a rare opportunity to have a meaningful, national debate about sentencing in this country. We should seize it and meaningfully reform a system that is sound in principle but imperfect in it’s execution.

* These are my own personal views. Feel free to publicly disagree or challenge any factual statements.

News from the Senate

I have just returned from the hearing and I have lots to share. I see that Sentencing Law and Policy has done a bang-up job of covering the hearing and providing access to testimony form the hearing. You can read Prof. Berman’s account here.

I have some materials to share that are not currently, to my knowledge, available on the web.

I have scanned and converted into pdf files the testimony of Rachel Barkow, a professor at NYU and the testimony of Alan Vinegard, former United States Attorney for the Eastern District of New York.

More later.

Monday, July 12, 2004

All Star Tuesday

As Sentencing Law and Policy pointed out, today is a big day. In addition to the MLB All Star game, a different sort of All Stars will gather in Washington DC to discuss what has quickly consumed all of my free time and most of my not-so-free time: Blakely v. Washington.

Yesterday, courtesy of the 2nd Cir, we got a bit of a procedural surprise: the court of appeals certifying three questions to the Supreme Court. It was only fitting that the All Star homerun derby winner was also a surprise: Miguel Tejada. What will happen in today's big events is anyone's guess, but one thing is for sure: this one counts.

At 10am this morning, the Senate Judiciary Committee will hold a hearing "to examine Blakely v. Washington and the future of the federal sentencing guidelines."

I plan on attending. I will provide a full report when I return. I also plan on including more parallels to baseball (not really.)

Great Questions Pertaining to the 2nd Circuit Decision

Marty Lederman of SCOTUS Blog has raised some interesting questions regarding the 2nd Circuit's ruling today.

Here's a teaser (click on the link if you want the whole story):

It should be noted that historically the Supreme Court has greatly disfavored certified questions, especially where (as here) it can answer the questions in a case raising them on certiorari...

If the Court decides to answer the court of appeals' certified question, there's a curious facet of the certification: The court's opinion today correctly notes that if the Supreme Court does invalidate the Guidelines, that only begins to address the impending "chaos," because there would then be a very difficult statutory question -- which can be viewed as a question of severability -- about how to proceed if certain Guidelines-prescribed methods of sentence-enhancement are invalid.

2nd Circuit Certifies 3 Blakley-related Questions to the Supreme Court!!!

You just have to read this to believe it. The 2nd Circuit, not content to just issue an opinion like all the other circuits, has one-upped everyone by certifying the following three questions to be heard by the Supreme Court "at its earliest convenience, with an expedited briefing and hearing schedule..."

1. Does the Sixth Amendment permit a federal judge to find facts, not reflected in a
jury’s verdict or admitted by a defendant, that form the basis for determining the applicable adjusted offense level under the federal Sentencing Guidelines and any upward departure from that offense level?

2. In a case where a jury has convicted a defendant of possessing with intent to distribute five kilograms or more of cocaine and one kilogram or more of heroin, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated,
under U.S.S.G. § 2D1.1?

3. In a case where a defendant has pled guilty to conspiring to distribute five kilograms or more of cocaine, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, (a) the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding
sentencing range will be calculated, under U.S.S.G. § 2D1.1, (b) the applicability of a two- level enhancement to the base offense level for carrying a gun in connection with the offense, under U.S.S.G. § 2D1.1(b)(1), and (c) the applicability of a three-level managerial role enhancement under U.S.S.G. § 3B1.1(b)?

Run-on Sentencing By Gerald Shargel

There's a new Slate article out there. The concluding paragraph says:

The future of criminal sentences may not be all that bright. A conservative Congress may respond with draconian mandatory minimum sentences that make defendants pine for the bad old days of the guidelines. But at least for now, trial by jury has resumed its rightful place as the bedrock of our constitutional justice system.

Tomorrow, we may get a hint about that.

The author is Gerald Shargel who has represented many high-profile clients, including John Gotti. He is a practitioner in residence at Brooklyn Law School, where he also teaches. (From Slate)

Another Cassell Opinion (Collect all 3!)

I'm not even sue how this is possible, but Judge Cassell has another opinion, a third on Blakely related matters. This one even incorporates US v. Booker and US v. Pineiro. This is amazing. Get the third installment here.

Fifth Circuit - US v. Pineiro - Food for Thought

Some facts from US v. Pineiro:

The jury said that Pineiro conspired to distribute less than 50 grams of cocaine and less than 50 kilograms of marijuana.

The PSR, accepted by the judge (but not submitted to the jury), said that Pineiro conspired to distribute 1,048.95 grams of cocaine and 453.6 kilograms of marijuana.

The judge sentences based on the PSR report (which is the difference between a base offense of 28 v. 20, by my count). Pineiro appeals based on Blakely.

The 5th Circuit says:

Given the nature of the Guidelines, we think the better view--and one that respects the prior decisions of both the Supreme Court and this court--is that the relevant “offenses” and “maximum punishments” are those defined and authorized by Congress in the United States Code.

Compare that from this passage from Blakely v. Washington:

Our precedents make clear, however, that 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. [citations omitted]… In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” Bishop, supra, §87, at 55, and the judge exceeds his proper authority.

ABA Letter on Blakely

Proving once again that he has access to all the best information, Professor Berman has posted a copy of "the letter sent by the American Bar Assocation President Dennis Archer to Senators Hatch and Leahy, which aparently responds to a letter from the Senators asking for the ABA's views on Blakely."

Read the full post, and get a copy of the letter, here.

(For Batman fans: Where does he get those wonderful toys?)

Request for Help - A Tough Blakely Question

A reader of this blog has written to me in the hopes that other readers of this blog might offer some advice. He poses a tough question, which you can respond to using the comments or by emailing me (if you too want to conceal your identity) at The readers asks the following:

I'm representing a defendant in a typical federal drug conspiracy case, who is facing a plea or trial decision in the next week. I'm contemplating making a motion to strike or dismiss Blakely-mandated sentencing factors I expect to see shortly in a superseding indictment. This would serve my long-term goal of trying to get a ruling that the non-offending portions of the guidelines are not severable so the judge will simply be able to impose an entirely discretionary sentence. See Croxford,

Freed of all restrictions, the judge would likely give probation if my client pleaded guilty but the indictment alleges an 841(b)(1)(A) conspiracy, with a ten-year mandatory minimum based on drugs actually recovered. As you know, section 3553(f) provides for so-called "safety-valve" relief from mandatory minimums but disqualifies defendants who were "supervisor[s] of others in the offense," section 3553(f)(4). My client, a drug dealer's girlfriend who "recruited" a courier, would likely be disqualified under this provision, regardless of whether the determination were made by a judge or jury. Accordingly, unless I could knock out this provision from the safety-valve statute, my client wouldn't be able to get less than the ten-year mandatory minimum sentence.

Therefore, I'm trying (without great hope, I'm afraid) to develop the following argument: While the guidelines are non-severable, section 3553(f) itself is. The court should stike subsection 3553(f)(4)--because it cross references a "determination" that was supposed to have been made under now-defunct guidelines section 5C1.2. It should then determine safety-valve eligibility without regard to role in the offense because there will no longer be any possibility of "determin[ing] under the sentencing guidelines," whether the defendant had a supervisory role.

I'm afraid that even if the court finds the guidelines non-severable, the cross reference to a "determination under the sentencing guidelines" will simply be transformed into a determination under 3553(f)(4) itself using caselaw developed under the defunct guidelines provision. Theoretically, freed somewhat from jurisprudence under the former guidelines, the court could articulate a more restrictive (and more favorable) common-law definition of "supervisor" under 3553(f)(4) itself. Nevertheless, I would be surprised if it differed materially from the old interpretations under section 5C1.2 and I would expect all of that caselaw under the former guidelines to be applied by analogy. Moreover, as Congress clearly intended 3553(f) to apply only to non-supervisors, it would be challenging to argue that 3553(f)(4) could be severed so that the other safety-valve factors (which my client could satisfy) should be applied without regard to consideration of whether a defendant had an aggravating role in the offense.

So, this seems like a daunting challenge but I wonder if anyone else has any thoughts on how to use Blakely to invalidate cross references to guideline provisions in this or other criminal statutes.

Former Bridgeport Mayor Joseph Ganim's Lawyer Asks for Some Blakely Time

From Newsday we get a story about former Bridgeport, Conn. Mayor Joseph Ganim. Ganim's lawyer is wisely asking for an extension of time to present a brief to the Second Circuit on Blakely's impact on Ganim's conviction and possible sentencing.

5th Circuit Bucks the Trend - SG Constitutional

The opinion in US vs. Pineiro, no. 03-30437 can be found here. From the second paragraph:
This court assuredly will not be the final arbiter of whether Blakely applies to the federal Guidelines, but the unremitting press of sentencing appeals requires us to produce a decision. We have undertaken to discern, consistent with our role as an intermediate appellate court, what remains the governing law in the wake of Blakely. Having considered the Blakely decision, prior Supreme Court cases, and our own circuit precedent, we hold that Blakely does not extend to the federal Guidelines and that Pineiro’s sentence did not violate the Constitution. Accordingly, the defendant’s sentence is affirmed.


Supplemental Briefs From US v. Booker

You can read the brief for Mr. Booker, written by reader of this blog T. Christopher Kelly, here. (You also should be reading TalkLeft, where Chris does some blogging of his own.)

The government's supplemental brief is available here (no word on whether the government reads this blog).

Another SG ruling

This one comes from the Western District of Missouri. The case is US v. Lamoreaux. You can read the opinion here.

News from the Eastern District of NY

Sentencing Law and Policy has posted a link to a story from the NY Lawyer which reports that another judge has struck down the SG.

Response to the Blakely-Harris Question

Many, many thanks to Clayton A. Sweeney, Jr. who has taken the time to write a very lengthy and thoughtful response to my Blakely-Harris dilemma. I've posted the entire response but the basic answer from his post seems to be: Under the rationale of both Harris and Blakely, all that is "legally essential" to a life sentence in the judges' discretion is a conviction under 924(c).

That's not to discount the rest of the post, it's very much worth reading. In fact, the direction Mr. Clayton takes the post in is a little eerie given that my Note (the preempted one, remember) argues that Congress intended drug quantity to be an element of 21 USC 841. In fact, Mr. Clayton cites the case of US v. Goodine, which not only appears in Blakely, but is the very case that got me into this whole mess when I was working at Goldstein & Howe last summer (failed cert pet.) Enough from me, Clayton's response:

If I understand your question, you raise a generally valid point about mandatory minima having the effect of increasing the statutory maximum--but one that just does not clearly apply to the statute in Harris because of the way the statute has been (mis)interpreted.

I assume from your comments that by just reading the statute, you concluded that 924(c) precisely mandates the specific sentences enunmerated in the statute. Under this interpretation an increase in the minimum under 924(c) necessarily increases the statutory maximum as well.

While I believe that is consistent with congressional intent, that is not how the statute is interpreted (or the basis upon which Harris was decided). Despite the rule of lenity and the fact that Congress regularly expressly specifies "life" as the maximum sentence when it intends life to be the maximum sentence, statutes mandate a minimum sentence in terms of "no less than 'x' years" have been held to carry an impled life sentence. Thus, for all subsections of 924(c), there is an implied life sentence. Under the rationale of both Harris and Blakely, all that is "legally essential" to a life sentence in the judges' discretion is a conviction under 924(c).

Section 2K2.4 of the Guidelines Manual, however, provides that for one "convicted under" 924(c) "the term of imprisonment it that required by statute." (Note that the guideline provides some support for the proposition that the implied life maximum interpretation is erroneous--and that even the drafters of the Guidelines believed Congress intended its applicability to turn upon the jury verdict, not judicial factfinding as the Harris Court held).

While under 924(c) alone, there is no Blakely problem, there may be one when 924(c) is combined with the section 2K2.4 (assuming, of course, that the guidelines survive at all). Based upon the conviction alone, the guideline base offense level is 5 years. Judicial factfinding, however, then raises the statutory sentence and, in consequence, the guideline base offense level. Blakely bells should go off regarding the latter effect. The assumption that 2K2.4 sets a base offense level independently of the statute, however, may be resolved against the defendant, particularly since the base offense is expressly set by reference to the statute.

The idea that a properly determined "guidelines range" may trump a judicially determined mandatory minimum is not limited in application to 924(c) and section 2K2.4. Take for instance, the facts of United States v. Goodine, 326 F.3d 26 (1st Cir. 2003). The defendant was convicted by a jury for more than 5 grams of cocaine base, but acquitted with respect to more than 50 grams of cocaine. The defendant had one prior felony drug conviction. The judge ruled that the mandatory minimum sentence under 841 was not governed by the jury verdict, but by judicial factfinding. He rejected the jury verdict, attributed 309 grams of crack to the defendant, and applied a 20 year mandatory minimum sentence under section 841(b)(1)(A).

According to Blakely (again assuming the guidelines survive somehow), the "guideline range" sentence should have been 70-87 months under under U.S.S.G. 1B1.1(g) & Part 5A (5 grams of crack/CHC II). As the determination of the guideline range is complete at that stage, it is much clearer than with 924(c) and 2K2.4 that the guideline range is independent of the statutory mandatory minimum, notwithstanding superior status conferred to statutes in Part 5G for purposes of imposing the sentence.

As an aside to this analysis (but critically important to the proper functioning of the criminal justice system under a system of federalism), the guideline range actually calculated by the judge in Goodine was 168 months to 210 months--30 months below the statutory mandatory minimum imposed under 841(b)(1)(A). If, as Judge Becker has persuasively demonstrated in United States v. Vazquez, 271 F.3d 93, 107-115 (3d Cir. 2001)(en banc) (Becker, C.J., concurring in result), Congress intended drug amount to be an all-purpose offense element, Mr. Goodine has been sentenced for an offense of which the jury acquitted him.

Judge Becker's interpretation is not necessarily a pro-defendant or pro-prosecution argument. Had Mr. Goodine been convicted of an 841(b)(1)(A) offense, the mandatory minimum would present no Blakely issue. Moreover, the district court could not evade the mandatory minimum by judicial factfinding. Cf., e.g., United States v. Chapple, 985 F.2d 729, 731 (3d Cir. 1993). As reading the legislative history Judge Becker cited shows, Congress intended to bind judges to the jury verdict for purposes of the mandatory minimum; like the Feeney amendments, the mandatory minimum sentences (re)introduced in 1986 manifested congressional antipathy to the exercise of judicial discretion in favor of defendants. Those who would interpret Apprendi and its progeny rendering statutory interpretation irrelevant do not account well for the history and specific purposes of the federal drug laws.

Morning News Stories

From the USA Today: High court ruling sows confusion

From the Chicago Tribune: Sentencing ruling splits court

From the Baltimore Sun: Sentencing policy on trial

Blakely and US v. Harris, Are they consistent?

Although I anticipate this week’s frenzied Blakely decisions, hearings and happenings will overshadow the subject of this post, I have to raise a question that has been on my mind for a few days now: Does US v. Harris survive Blakely?

I know, I know – Scalia says as much in Blakley. And several commentators have said as much. But before we accept that as gospel let me remind you that three weeks ago, you probably thought that you knew what “statutory maximum” meant. So at least entertain some of the following thoughts…

I think that the following edict from Blakely compels a reversal of Harris:

In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” Bishop, supra, §87, at 55, and the judge exceeds his proper authority.

Here’s why. Consider the statute in Harris:

“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–
“(i) be sentenced to a term of imprisonment of not less than 5 years;
“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

Harris was charged with the following: “during and in relation to a drug trafficking crime,” petitioner had “knowingly carr[ied] a firearm.” The jury finds that statement true beyond a reasonable doubt. Ok, so he gets 5 years, right? Nope, he gets 7 because the judge, based on a preponderance of the evidence, said he “brandished” the weapon.

If the jury’s finding is limited to “you carried a firearm,” why can the judge, given what we now know from Blakely, “find” that you brandished it and sentence the defendant to a 7 year sentence? Is the distinction that the brandishing provision is in the statute? If that’s the answer, how is this “hybrid” or “superfact” (terms used by King and Klein, Beyond Blakely at 6) distinct from drug quantity in 21 USC 841? Distributing any detectable amount of cocaine violates 21 USC 841, but judges can’t just sentence you to life because the jury said you had a detectable amount of drugs. A judge couldn’t do that before Blakely, much less after it (see US v. Booker).

Why does it matter that the judge’s finding triggers a mandatory minimum? Doesn’t this rely on a rather truncated view of the 6th Amendment, one that Blakely has challenged?

Still not convinced? Take a look at my excerpt from Blakley a few paragraphs above this one. Notice the quotation from Bishop. Compare that with this excerpt from Harris:

McMillan was on firm historical ground, then, when it held that a legislature may specify the condition for a mandatory minimum without making the condition an element of the crime. The fact of visible firearm possession was more like the facts considered by judges when selecting a sentence within the statutory range–facts that, as the authorities from the 19th century confirm, have never been charged in the indictment, submitted to the jury, or proved beyond a reasonable doubt:

“[W]ithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment. Where the law permits the heaviest punishment, on a scale laid down, to be inflicted, and has merely committed to the judge the authority to interpose its mercy and inflict a punishment of a lighter grade, no rights of the accused are violated though in the indictment there is no mention of mitigating circumstances. The aggravating circumstances spoken of cannot swell the penalty above what the law has provided for the acts charged against the prisoner, and they are interposed merely to check the judicial discretion in the exercise of the permitted mercy. This is an entirely different thing from punishing one for what is not alleged against him.” Bishop, Criminal Procedure, §85, at 54.

Again, in Blakely, Scalia cites Bishop in a footnote:

Rather, the entire chapter of his treatise is devoted to the point that “every fact which is legally essential to the punishment” must be charged in the indictment and proved to a jury. 1 J. Bishop, Criminal Procedure, ch. 6, pp. 50–56 (2d ed. 1872). As one “example” of this principle (appearing several pages before the language we quote in text above), he notes a statute aggravating common-law assault. Id., §82, at 51–52.

I take that to mean that if you want to punish Harris for 7 years, you have to allege that he brandished the weapon. So, which Bishop controls?

I have lots of questions, here’s possibly my best one: Assume the statute does not contain the brandishing enhancement or the discharging the weapon enhancement. Instead, those enhancements appear in the SG. The judge, under this revised statute, sentences Harris to 7 years because he brandished the weapon. How, if at all, does this change the result in Harris?

Please, please post a response. I’ll likely post those responses onto the “main” page, so don’t fear that your crushing rebuttal will be relegated to the obscure nether-regions of the “comments” page.

Sunday, July 11, 2004

Daily Blakely News

1. From Louisiana, we get the following story: Sentencing guidelines in question - Supreme Court ruling has judges reviewing cases

The article discusses U.S. District Judge Frank Polozola’s practice of backup sentencing. Here’s an interesting passage:

"Some judges around the country have already declared the guidelines to be unconstitutional, and I'm not certain what the appellate courts will do," Polozola told Marks during his sentencing hearing last week. "I will give you two sentences today. One will be under the guidelines, and one will be without -- just like I did when in the '80s when I came on the bench."

The article says that the Fifth Circuit has taken up Blakely in U.S. v. Francisco Pineiro.

2. An article about the Rigas sentencing can be found here.

3. Meet Judge Cassell, the youngest judge to be confirmed for the federal bench in Utah. The Deseret News has a story about Judge Cassell.

Blakely in Perspective

Here's a look at some of the major Blakely devlopments of the last few weeks.***

A Recap of the Last 2 to 3 Weeks

June 24 - The Supreme Court decided Blakely. Legal anarchy would soon follow.

June 29 - Just five days after Blakely, Judge Cassell deals the Sentencing Guidelines their first post-Blakely blow. The opinion is widely heralded at very well written.

June 24-29

- Sometime between June 24 and June 29, Chief Judge Young of Massachusetts, probably thinks to himself, "I told you so," as he laments his decision in US v. Green which declared the SG unconstitutional before it was cool to do so.

- Prosecutors are adjusting by: a) Requiring defendants to plead to the facts that give rise to enhancements, or b) prove the enhancements to the jury beyond a reasonable doubt.

- Sentencing options. From what we’ve seen so far, most judges appear to be selecting option two from Judge Cassell's Croxford opinion: use the parts of the guidelines to sentence the defendant that survive Blakely.

July 3 - Professors Bowman, Stith, and Stuntz offer some suggestions for fixing the guidelines.

July 6 - The first DOJ documents instructing AUSAs on responding to Blakely are leaked.

July 7 - More DOJ materials are leaked. The DOJ tells AUSAs to argue that Blakely does not invalidate the guidelines, but if that is unsuccessful, they should argue that the judge can either sentence within the statutory range or use the guidelines as a suggestion.

July 8 - Ken Lay's indictment is cleaned up to ensure Blakely compliance.

July 9

- An amended version of Judge Cassell's Croxford decision is released. The amended opinion contains "backup" sentences, some judicial insurance to cover a few possible permutations of constitutionality.

- The 7th Circuit speaks. Just about everybody (except for Judge Easterbrook) thinks that the Sentencing Guidelines are in trouble, including Judges Posner and Kanne. There appears to be a strong consensus that Blakely prohibits a judge to enhance a defendant's sentence unless the defendant agrees to waive his Blakely rights, agrees to the enhancements (or the underling facts) in the plea agreement or the enhancements are submitted to the jury. This opinion promises to spark a great deal of discussion.

July 11 - Professors King and Klein make available to the public a paper entitled Beyond Blakely which makes this recap of events look like it belongs on a law student's blog.

Things to Look Forward To:

July 13th at 10am, the Senate Judiciary Committee will have a
hearing on all of this stuff. I'll be there; I'll be the one in a dark suit.

*** I've left a number of minor to moderate developments out of this list.

Professors King and Klein - Beyond Blakely

Professors King and Klein have released a draft version of a paper that will soon appear in the Federal Sentencing Reporter. Beyond Blakely, the title of the piece, appears to put the last few weeks into perspective, while offering suggestions for moving forward. Thanks to Prof. Berman and USSGuide, a work-in-progress draft has been made available to the public. Apparently, the authors welcome comments and suggestions.

You can read more about the paper and download a copy here.

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