Friday, July 23, 2004
7th Circuit - Bait and Switch
Apparently, the 7th Circuit issued an opinion today which neglected to mention Booker or Blakely (which by now has virtually become a circuit rule: you have to cite one or the other).
So, they pulled the first opinion and replaced it with one that has a Blakely ending.
The case is USA v. Ward.
The Indiana Law Blog has more coverage of both versions of the opinion.
8th Circuit Gets Into the Act
PS - The blog is having technical difficulties today, if you haven't noticed. I hope to fix them shortly (if you know how to fix it, please email me).
US v. Terrell - District Court of Nebraska
In this case, that compels the following conclusion:
The defendant has admitted to being a felon in possession of firearms and ammunition. The government urges that his sentence should be enhanced because the weapon he possessed was a short shotgun and a short shotgun is characterized under the Guidelines as a "destructive device." n5 Although the indictment sets out the make and model of the weapons that the defendant possessed, there is no evidence that either of these weapons was a short shotgun, a sawed-off shotgun, or a destructive device. Statements in the PSR are not evidence. United States v. Wise, 976 F.2d 393, 404 (8th Cir.1992) (en banc). If the government had desired to punish the defendant for possession of a short shotgun, sawed-off shotgun, or destructive device, it could have prosecuted him under the statute that criminalizes possession of such devices. See 26 U.S.C. § 5861.
6th Circuit News -Developments in United States v. Tiffany Montgomery
The defendant filed the appeal challenging the BOP policy which will not honor the district court's recommendation that the defendant be entitled to serve her sentence in a halfway house. After the Sixth Circuit entered the order vacating the Montgomery opinion, the parties have worked the matter out with the result that the defendant will be allowed to serve her sentence in a halfway house.
But, if you will look at the Montgomery decision, you will note that the Sixth Circuit decided not to address the BOP policy at all. It sent the case back to allow the district court to look at some new district court authorities on the policy, and on its own it said that Blakely would free the court from having to be bound by the guidelines. Since the defendant got the relief she requested, the appeal is moot at this point.
Good Morning - It's Time for a Blakely Update
For weeks now, many have claimed that this very procedure would be too difficult and burdensome to carry out.
Enron News - New indictments have been issued in the Enron case (now Blakely friendly)
The re-indictments affect six people charged with conspiracy in the sham sale of electricity-producing Nigerian barges and seven ex-Enron executives accused of touting the company's broadband network as having capabilities it never had to drive up Enron's stock price.
Both sets of new indictments claim each scheme caused the loss of more than $80 million, an allegation that can add years to a sentence, the Houston Chronicle reported in its Friday editions. Also covering the Enron story is the Houston Chronicle.
It's good to be Jeff Fisher - He argued Blakely in the Supreme Court and won. He also won another case for criminal defendants last term. Learn about the one time English major here.
US v. Lockett, 2004 U.S. Dist. LEXIS 13710 (No. 3:04CR017) - Eastern District of Virginia (Now available as a pdf here)
United States District Judge Henry E. Hudson has declared the application of the guidelines unconstitutional in a case where the government was seeking two sentence enhancements. Judge Hudson writes:
The two sentencing enhancements at issue in this case -- the additional drug weight and the firearm possession -- were neither contained in the indictment nor included in the statement offacts. Consequently, and pursuant to the defendant contests the assessment of those enhancements. In opposition, and based on confidential source information, the government urges the Court to apply the two enhancements. The resulting tension creates the type of factual issue specifically found by the Court to be constitutionally fatal.
Thursday, July 22, 2004
Justice O'Connor Speaks to the 9th Circuit
Justice O'Connor spoke at the annual 9th Circuit conference today and addressed a number of issues. Among here themes were: we get by with a little help from our friends ("Try to make a friend out of the members of Congress," O'Connor said.) and oh, yeah - that Blakely thing was a disaster, a 10 on the Richter scale.
Apparently Justice O'Connor likened the Blakely fallout to a No. 10 earthquake. Most of her comments were directed at the Court's other cases this term, however.
The article is entitled: O'Connor to Judges: Explain Yourselves
Update: Additional O'Connor coverage
The Monterey Herald reports that Justice O'Connor told the judges with reference to Blakely:
What does that mean?"We really have a lot of difficulty right now," O'Connor told the 9th Circuit judges Thursday. "I think the consequences are severe and it's going to take a little time to figure out what to do."
Second Circuit Preparing to Hear US v. Penaranda EnBanc
No date has been set, and as I said, this may not be relevant if the Court decides to hear Booker or Fanfan.
Minnesota - Enhancements Must Go to the Jury
As I mentioned earlier today, Minnesota had its first run-in with Blakely in State v. Whitley. The result: findings of fact under Minnesota's pattern sex-offender statute must go to the jury.
Michigan - Michigan Guidelines Constitutional (Maybe)
Sentencing Law and Policy is reporting that Michigan's courts have ruled in Michigan v. Claypool that the Michigan guidelines do not present any Blakely difficulties. But a concurrence in that case may cast doubt on that conclusion. The case and further detail can be found here.
Tennessee - Governor Acts to Preserve Guidelines
The Chattanoogan is reporting that, "By Executive Order, Governor Phil Bredesen today named a panel of criminal justice officials charged with making recommendations to preserve the use of enhancement factors in Tennessee’s criminal sentencing laws, in light of a recent U.S. Supreme Court ruling."
Indiana - Disagreements Over Blakley's Reach
The Indiana Law Blog is reporting that there has been disagreement between the state and defense attorneys over Blakley's impact in Indiana. Imagine that.
Sen. Hatch - Working on a Contingency Plan
Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, said he would develop a "contingency plan to ensure that regardless of what the Supreme Court decides that we will be able to preserve a system that promotes uniformity and reduced sentencing disparity across the country".
Listen Up! US v. Booker Oral Argument
Sentencing Law and Policy
Prof. Berman has a series of great posts analyzing yesterday’s developments with the SG’s filing. In reverse chronological order:
Wednesday's work by the Legislative Branch
Wednesday's work by the Executive Branch
Wednesday's work by the Judicial Branch
Questions as we branch out
Congress clears its throat!!
SCOTUS Blog Musings
Marty Lederman asks and notes:
What About Those Second Circuit Certified Questions in Penaranda?
A Funny Way for the Congress to Speak to the Court
NYT - Court Asked to Decide Cases to Clarify Sentencing Ruling
Law.com - 9th Circuit Bars Sentence Enhancements
Law.com has a story about Judge Rakoff's decision in United States v. Marrero - N.Y. Judge Rules 'Blakely' Renders Federal Guidelines Unconstitutional
Blakely Developments in Minnesota
From the Minnesota Court of Appeals, we get State v. Whitley, 2004 Minn. App. LEXIS 832(No. 02014055):
Viewed in the light most favorable to the verdict, we conclude that the evidence was sufficient to prove appellant guilty beyond a reasonable doubt of fourth-degree criminal sexual conduct; we therefore affirm appellant's conviction. But because the district court failed to inform appellant of his right to have a jury determine whether he committed a predatory offense and because appellant's jury trial waiver did not explicitly include a waiver for purposes of sentencing enhancement, we reverse the imposition of a 40-year sentence as unconstitutional under Apprendi v New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and remand for sentencing not inconsistent with the United States Supreme Court's recent decision in Blakely v. Washington, ___ S. Ct. ___, 2004 WL 1402697 (June 24, 2004).
Wednesday, July 21, 2004
Extra! Extra! Read All About It! SG Files For Expedited Review In Booker and Fanfan
Are Downward Departures Also Unconstitutional?
Marcia's post is an interesting read, comparing recent ruling from 3 different circuits.
9th Circuit Issues A Blakely Ruling
Some Highlights From the Majority
Rejecting the government’s attempt to distinguish the federal guidelines from the Washington system:
We are unconvinced that the Congressional delegation of authority to the Sentencing Commission to set presumptive sentencing ranges in the first instance creates any meaningful distinction. Congress retains the authority to, and indeed must, ratify the Guidelines. Every Sentencing Guideline promulgated by the Commission must be ratified by Congress, which “can revoke or amend any or all of the Guidelines as it sees fit either within the 180-day waiting period or at any time.” Mistretta v. United States, 488 U.S. 361, 393-94 (1989); 28 U.S.C. § 994(p). The Court has previously held that the Sentencing Guidelines have the force of law, Stinson v. United States, 508 U.S. 36, 45 (1993), and “bind judges and courts in the exercise of their uncontested responsibility to pass sentence in criminal cases.” Mistretta, 488 U.S. at 391. See also Bahe, 201 F.3d at 1129 n.5. Congress has utilized this authority to shape the Guidelines directly, twice rejecting attempts by the United States Sentencing Commission to modify the powder to crack cocaine sentencing ratio. More recently, Congress acted directly to amend the Guidelines regarding child pornography, limiting judicial discretion to depart downward and changing the appellate standard of review of criminal sentences. See PROTECT Act, Pub. L. 108-21, 117 Stat. 668-69, 671-73 (2003). In short, we agree with the Seventh Circuit that “[t]he pattern [of the Guidelines] is the same as that in the Washington statute, and it is hard to believe that the fact that the guidelines are promulgated by the U.S. Sentencing Commission rather than by a legislature can make a difference.” Booker, 2004 WL 1535858, at *2.11
An interesting, if not troubling footnote for what it suggests about the last 17 years:
15 Blakely’s application to the Sentencing Guidelines will likely lead to greater accuracy in sentencing. We have long held “a defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information.” United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993). A jury finding beyond a reasonable doubt material sentencing facts that will increase the level of punishment, as opposed to a district judge making such findings by a preponderance of the evidence, will likely lead to more reliable information during the sentencing process. While theoretically the disputed hearsay relied upon to increase Ameline’s base offense level to 34 might have satisfied the district court that it was more likely true than not, it is far less certain that its questionable reliability would satisfy a jury (or district judge, assuming a proper jury waiver) beyond a reasonable doubt that Ameline had engaged in distribution of those amounts.
Rejecting the government argument that the guidelines are severable:
However, we decline the government’s invitation to invalidate the Guidelines wholesale and to permit the district court unfettered discretion on resentencing to sentence Ameline to a term within the statutory range of 0 to 20 years. Instead, we hold that, although these procedural aspects of applying the Sentencing Guidelines violate Ameline’s Sixth Amendment right to a jury trial, they are severable.
We begin with the “presumption . . . in favor of severability,” a presumption that is based on the idea that “a court should refrain from invalidating more of the statute than is necessary” because “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Regan v. Time, 468 U.S. 641, 652-53 (1984). Reflecting this presumption, the test for determining severability provides that “[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Champlin Refining Co. v. Corp. Comm’n of Okla., 286 U.S. 210, 234 (1932). As this standard implies, the issue is “essentially an inquiry into legislative intent.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999).
We therefore turn to Congress’ intent in enacting the Sentencing Guidelines. Congress had three objectives in mind when it enacted the Guidelines: honesty, uniformity and proportionality. U.S.S.G. § 1A1.1, cmt. 3 (2003). Congress sought to promote honesty in sentencing by eliminating the indeterminate sentencing system under which defendants often served far less than the sentence imposed by the district court. Congress’ second purpose was to achieve “uniformity” by “narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders.” Id. Finally, Congress intended that the Guidelines would also ensure proportionality by treating different criminal conduct differently. In short, Congress’ goal was to eliminate the uncertainty that accompanied indeterminate sentencing.
The Sentencing Guidelines will still promote this goal even if the requirements for judge fact finding by a preponderance of the evidence are severed as violating the Sixth Amendment in circumstances like those confronting Ameline. The Sentencing Guidelines seek to achieve these Congressional objectives because they contemplate similar sentences once a given set of facts are found to exist. Although severance would change how those facts are determined, and by whom, severance would have no effect on the Congressional goal of achieving consistency of sentences in cases that involve similar offense conduct. In fact, were we to hold that Blakely precludes application of the Guidelines as a whole, we would do far greater violence to Congress’ intent than if we merely excised the unconstitutional procedural requirements. We are reluctant to establish by judicial fiat an indeterminate sentencing scheme.16 Absent the Sentencing Guidelines, we would return to a system of indeterminate sentencing with all of its attendant problems. Rather than undermining Congress’ objectives, severance facilitates them.
[There’s more but I think this captures most of this argument]
District Courts can convene sentencing juries:
However, should the government seek to obtain a higher sentence for the offense of conviction, the district court may convene a sentencing jury to try the drug quantity and firearm issues, which, if proven beyond a reasonable doubt, may be used to increase Ameline’s sentence.19 As the Seventh Circuit in Booker noted, federal courts have long employed bifurcated juries in the capital punishment context, as well as in the civil context where a jury may only determine damages once it has separately determined liability. “There is no novelty in a separate jury trial with regard to the sentence, just as there is no novelty in a bifurcated jury trial.” 2004 WL 1535858, at *5; see also United States v. Khan, 2004 U.S. Dist. LEXIS 13192 at *16 (E.D.N.Y. July 12, 2004) (noting the success of the bifurcated jury system in capital cases).20
The first paragraph of Judge Gould’s dissent:
Blakely does not conclusively require that we hold constitutionally invalid the application of the Federal Sentencing Guidelines (“Guidelines”) to Ameline. The United States Supreme Court’s prior opinions have upheld the constitutionality of the Guidelines. I agree with Part II.A of the Fifth Circuit’s opinion in United States v. Pineiro, No. 03-30437, 2004 WL 1543170 (5th Cir. July 12, 2004), analyzing the impact of Blakely and holding that the Guidelines are not affected by it. I also agree with the dissent in United States v. Booker, No. 03-4225, 2004 WL 1535858, at *6-*11 (7th Cir. July 9, 2004) (Easterbrook, J., dissenting). While reasonable jurists may now disagree on the long-range impact of the reasoning of Blakely, in the short run we remain bound to apply the Guidelines unless and until the Supreme Court holds otherwise.21
An interesting footnote from the first paragraph:
21 Though I disagree with the majority’s analysis of the impact of Blakely, and believe the district court properly could apply the Guidelines in total, I would still vacate Ameline’s sentence under a different theory: The district court erred in shifting from the government to Ameline the burden of proof for the facts in the Presentence Report about drug quantity. I agree with the majority’s observation on this issue in its footnote 14.
A great way to end your dissent:
Although I understand those who would contend that the logic of the majority opinion in Blakely compels the result my colleagues reach, “[t]he life of the law has not been logic,” as Justice Holmes observed, “it has been experience.” OLIVER WENDELL HOLMES, The Common Law 1 (1881). Considering the experience of our federal court system with sentencing reform under the Guidelines for twenty years, the prior Supreme Court precedent friendly to the Guidelines, and the array of disruptive issues that will necessarily follow in Blakely’s train if it is applied to the Guidelines,26 I conclude that the Supreme Court itself is the proper Court to decide if the Guidelines are constitutionally infirm in any fundamental way.27
I respectfully dissent.
Even if the Blakely ruling is construed to mean that a jury must find every fact upon which a sentenced is increased under the guidelines, Cebull said, "Our jury system is so good, jurors can do this.''
The Rochester Democrat and Chronicle reports: Judge postpones fraud sentencing. From the article:
U.S. District Judge David Larimer said he expects the Supreme Court to return and decide whether its June decision — Blakely v. State of Washington — means that federal sentencing mandates are now unconstitutional.An interesting article from yesterday's The Recorder is out there entitled, "Family affair - Breyer to head sentencing study." I have not found a free copy of the story but having read it I can report that U.S. District Judge Charles Breyer has been asked to head a Ninth Circuit committee to explore federal sentencing reforms in light of Blakely. And, in what appears to be the first word from the 9th Cir. (albeit outside the courtroom), Chief Judge Mary Schroeder is on the record as stating that sentencing reform is now "essential," suggesting that a "complete restructuring" may be appropriate.
Finally, the best story of the day comes from The Miami Daily Business Review which has an article entitled, "Federal Judge in Miami Rules Sentencing Guidelines Unconstitutional." The article discusses yesterday's ruling in US v. King, as well as a district court en banc request to sort out Blakely issues which may make some sense given that in addition to a circuit split, district courts are now starting to diverge.
Tuesday, July 20, 2004
First Blakely Decision From Florida
Taking Blakely to its logical conclusion, the determinate scheme set up by the Guidelines violates the Constitution and can no longer be used in any case. The Court notes, however, that despite a return to an indeterminate sentencing scheme, it will continue to rely on the Guidelines as recommendations worthy of serious consideration. Slip op. at p. 12 (emphasis added).
Additional details can be found here.
Update: US v. Booker, US v. Fanfan and the Supreme Court
That leaves open the question of whether the SG will file a petition in US v. Fafan.
Update: My source tells me that the SG will, in fact, file a cert pet in US v. Fanfan as well.
Marcia Oddi (who is a trusted source but not the one I refer to in this post) has brought to my attention that the 7th Circuit has amended US v. Booker, available here. When I figure out what has been changed, I'll post that information here.
Update: I've been informed that the following paragraph was added to the opinion:
Because the government does not argue that Booker's Sixth Amendment challenge to the guidelines was forfeited by not being made in the district court, we need not consider the application of the doctrine of plain error, e.g., United States v. Olano, 507 U.S. 725, 731 (1993), to challenges inspired by the Blakely decision.Another Update: Lyle Denniston of SCOTUS Blog has posted an extended discussion of Booker and Fanfan, with lots of potential twists and turns.
What is Blakely's reach with respect to corporations?
The article maintains (in a footnote) that Blakely will not affect proposed amendments to the guidelines which will affect the practice of sentencing business organizations. In the words of the author, the amendments will "more extensively define and expand the standards, structures and procedures of an 'effective' compliance program." Mr. Chilton maintains that the proposal is likely to be adopted by the Congress and applied retroactively.
Just how rare is it for a circuit court to certify questions to the Supreme Court? This article answers that question and provides plenty of SCOTUS trivia knowledge which you can use to impress your friends, colleagues and loved ones.
Monday, July 19, 2004
Blakely to the SCOTUS
As additional details become available, I will post them here.
Update: Tomorrow's NYT will have a story on this topic available here. (And if it's ok with the American criminal justice system, I'm going to get some sleep now, so let's hold off on the Blakely news for a few hours. I appreciate it.)
6th Circuit Vacates US v. Montgomery
The parties have been asked to file a supplemental brief by July 28, 2004.
Additional confirmation of this story (as details are sparse) would be appreciated.
Update: We now have confirmation, the 6th Cir. has vacated Montgomery in favor of an en banc rehearing.
Case Developments in the SDNY and Indiana
From the Southern District of NY, Judge Rakoff held that Blakely applied to the USSG and that the guidelines were not severable. Accordingly, he sentenced the defendant without being bound by the guidelines. More information is available here.
The Blakely ruling — and Stewart's sentence — also might signal a retreat by judges from the tougher white-collar crime penalties called for by the public and politicians since the Enron scandal, legal experts say.
From Washington, the Columbian reports: Burglar's sentence beyond max. The article discusses the role of prior convictions in sentencing. Many have speculated that Almendarez-Torres is susceptible given the Blakely ruling and the fact that Justice Thomas has expressed grave doubts about the viability of Almendarez-Torres.
The Houston Chronicle reports: Doubt weighs on federal sentences.
The Salt Lake Tribune reports: Sentencing rules face high scrutiny in wake of ruling. The article raises the question, can jurys decide sentencing factors as a practical matter? One commentator thinks not:
However, Michael Goldsmith, a Brigham Young University law professor, predicts "an unbelievable mess" if the Supreme Court decides juries must determine all sentencing factors. Courts will clog as trials become longer and defense attorneys request new sentencings for clients already serving time, he said.
Blog it and they will come
The article is entitled, “Law Professor's Web Log Is Jurists' Must-Read.” The vast majority of the article is about Prof. Berman’s Sentencing Law and Policy blog, as it should be. I'd like to take a moment to note that the article says that this blog is Prof. Berman's primary competition. Nothing could be further from the truth. Prof. Berman and I communicate on an almost daily basis to share information, thoughts and news. Our relationship is not marked by competition but cooperation. Prof. Berman could have easily ignored me but he has treated me like a colleague, not a competitor. For that, I am very grateful.
Now, some blog stats. When Laurie interviewed me she asked me how many visitors the site was getting. I didn’t know the answer because the site doesn’t have a counter, so I installed on one last Thursday at 2pm. On Friday at 2pm, I had a little over 1,300 hits. At the time of this post, the blog has about 2500 hits. That’s great volume for a 15 day old blog dedicated to an Apprendi-related matter, don't you think?
I’d like to take this opportunity to thank Laurie at the WSJ for taking the time to interview me and for mentioning my blog. I also would like to thank the readers of this blog who write to me with comments, suggestions, information and spelling errors. I’ve been told there is no such thing as the word “porposal."
Following Blakely developments has been a lot of fun (is fun the right word? I think it is.), I look forward to what’s ahead.
Sunday, July 18, 2004
Federal case developments in Pennsylvania
US v. Harris, 2004 U.S. Dist. LEXIS 13290 (No. 03-244-03)
This case is from the Western District of Pennsylvania. Judge Arthur J. Schwab appears to have presided over the first Blakely waiver, or at least the first one that has been published that I know of.
There are two key passages in the opinion:
Thus this Court finds that the federal sentencing guidelines are an unseverable and unconstitutional whole.
But that conclusion never really came into play because...
Thus, although this Court has declared the United States Sentencing Guidelines unconstitutional under Blakely, the sentence in this case ultimately was crafted under the guidelines, by agreement of the parties.
US v. Leach, 2004 U.S. Dist. LEXIS 13291 (No. 02-172-14)
This case comes from the Eastern District, Judge Stewart Dalzell was presiding.
The opinion states:
Under the teaching of Blakely and Booker, we therefore will make no enhancement to Leach's sentence that he has not, by his admission, already agreed to.The result is interesting: a 188 month term, both assuming the guidelines are constitutional and assuming they are not.
I add one interesting news story which comes from Kansas, right in the Heartland. As you probably know, the state of Kansas revised its sentencing guidelines in response to Apprendi, and many commentators have pointed to Kansas as a model for reforming the federal system. Last Tuesday’s Senate hearing, however, barely paid lip service to the idea. It sounds to me like Senator Hatch still hasn’t found what he’s looking for. (And he certainly is looking.)
In the meanwhile, the DOJ and SG may be taking a look at US v. Fanfan as the case they take to the Supreme Court. You can read my description of Fanfan here. Still no word on when the Court will take a case, if they do at all. Recent speculation has been that the Court might take the issue up later rather than sooner, maybe October.