Friday, August 06, 2004
A Blakely Blockbuster
The court finds that the guidelines can be applied in a manner consistent with Blakely. The truly exciting part is how the court arrives at that conclusion. Chief Judge Holmes appears to have taken Justice Scalia’s point that, “This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment,” to heart.
Referencing a four point plan issued on July 8th, Judge Holmes appears to do exactly what many hope the Supreme Court will do in a few months: provide a blueprint for a constitutional determinate sentencing system. In Chief Judge Holmes’s words, “The various elements of the Plan, operating together, are intended to maintain the workability and fairness of the Guideline system, while fully protecting each defendant’s Sixth Amendment rights under Blakely.”
Here’s the plan:
1. The Court will only accept a plea of guilty accompanied by a Sixth Amendment waiver of jury that expressly applies to both guilt or innocence and to sentencing. If a defendant does not desire to waive his or her jury rights in all respects, a jury trial on all relevant issues will ensue in accordance with the Sixth Amendment.
2. For those cases resolved by a plea pursuant to such a comprehensive waiver, judicial factfinding at sentencing will require that any contested enhancement or departure must be based on facts established beyond a reasonable doubt in accordance with the federal rules of evidence. The Court recognizes this may have significant consequences, particularly in areas such as relevant conduct, determining amounts (e.g. drug quantities and dollar amounts) and role in the offense. Nevertheless, the Court believes the language in Blakely equating judicial factfinding with jury factfinding as a matter of Sixth Amendment jurisprudence implicitly, if not explicitly, requires the application of such enhanced evidentiary standards.
3. For those cases that go to trial, facts necessary to support relevant sentencing enhancements and departures will be set forth on the verdict form for the jury to find beyond a reasonable doubt. A mechanism will be established whereby all parties have full notice of such potential enhancements prior to trial. The Court will give the jury such instructions as are necessary and appropriate to make these findings of fact.
4. The United States should include significantly more detail in its charging documents. For those cases that are resolved by entry of a plea, this will reduce the amount of judicial factfinding needed at sentencing. For those cases that go to trial, the jury will have a more complete understanding of the questions that will be presented on the verdict form as matters to be proved beyond a reasonable doubt. The Court anticipates that in some cases that go to trial involving certain sentencing enhancements, such as relevant conduct, particularly relevant conduct, evidence regarding such enhancements may not be admissible because it may be of limited probative value in proving the crime charged and highly prejudicial. Only in special cases, for good cause shown, will the Court utilize a bifurcated procedure whereby guilt or innocence will be considered in a first phase and sentencing evidence will be offered in a second phase. Specifically with respect to relevant conduct, since the United States hereafter must prove all relevant conduct beyond a reasonable doubt in any event, wherever possible the United States should consider simply including any such relevant conduct allegations as part of the crime or crimes being charged.
Who is this guy?
Well, here are the answers: Because I thought it would be helpful; No one special, just a guy with a blog; No, but sometimes it feels like it.
Along thoe lines, I've decided to give the blog a more human face - mine. I've created a mini-profile of myself which you can access here. You even get to see what I look like when I'm forcing a smile.
Minnesota Sentencing Commission and the Seventh Circuit
Marcia Oddi, who keeps tabs on all things that are the 7th Circuit, among other things, has brought to my attention USA v. Singletary. As far as Blakely news goes, it's plain vanilla - just a remand for resentencing but Marci points out what appears to be cookie cutter language in the 7th Circuit: Thus, in light of the analysis set forth in Booker, we remand Singletary’s case to the district court for resentencing.
There are some good stories out there today, and one not so good one.
There's an interesting AP story which discusses the case of former Rite Aid executive Franklin C. Brown and some of the sentencing issues in that case. The article quotes Peter Goldberger who is Mr. Brown's attorney.
A preliminary review has found the state's sentencing guidelines are safe from a major overhaul, according to two members of the Minnesota Sentencing Guidelines Commission, which today is to submit a report on immediate effects of the decision to Gov. Tim Pawlenty.
And the assistant chief district judge in Ramsey County says:
"It's so new we're just really trying to absorb it," said Kathleen Gearin, assistant chief district judge in Ramsey County. "We're in the same boat as everyone around the country, saying, 'What is this going to mean?' "
We know the feeling.
The Supreme Court agreed this week to restore order where it recently sparked disarray.
It did? I hope someone has a copy of that agreement.
Finally, and I hate to do this (not really). One article stood out today, because it's not very accurate.
2nd Circuit - Hurry up and wait
John M. Walker, Jr., Chief Judge of the United States Court of Appeals for the Second Circuit, today announced a set of procedural and administrative measures that his court is adopting pending the Supreme Court’s decision in United States v. Booker, No. 04-104, and United States v.Fanfan, No. 04-105 (to be argued October 4, 2004). These measures are as follows:
(1) The court generally will hold mandates in all criminal cases pending the Supreme Court’s decision in Booker/Fanfan. A panel may order that a mandate issue, however, in cases in which (a) the defendant was sentenced to no more than the applicable statutory minimum and (b) the facts that justified application of the statutory minimum were either admitted by the defendant or found by a jury beyond a reasonable doubt. Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part.
(2) All motions to file supplemental briefs in light of the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), will be denied without prejudice to renewal following the Supreme Court’s decision in Booker/Fanfan.
(3) Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its decisions that address defendants’ sentences until after the Supreme Court’s decision in Booker/Fanfan. In that regard, the parties will haveuntil 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker/Fanfan.
Update: Get the order in pdf format here.
Thursday, August 05, 2004
Blakely in the states
Effective August 3, 2004, this court will no longer compensate appointed counsel for research or briefing directed to any issue presented by Blakely v. Washington (2004) __ U.S. __, [124 S.Ct. 2531, __ L.Ed.2d __], pending opinions by the California Supreme Court in People v. Towne (review granted Jul. 14, 2004, S125677), and People v. Black (review granted Jul. 28, 2004, S126182).
However, if counsel or appellant wishes to raise a Blakely issue in any case pending before this court, he or she may file a letter stating with precision the Blakely issue[s] he or she wishes to raise on the appellant's behalf and this court will deem such issue[s] raised, thereby preserving the appellant's ability to seek review of the issue[s] in the California Supreme Court. The failure to identify an issue by a letter will operate as a waiver. The People, through the Attorney General, need not file any response to such a letter statement and the court will deem the stated issue[s] to be opposed by the People.
The Court may request further briefing in any case and will reevaluate this order after the California Supreme Court rules in Towne and Black.
This order does not apply to any pending appeal in which this court has ordered or authorized, on or before August 2, 2004, specific briefing on a Blakely issue.
The purpose of this order is to ensure that the subject issues will be raised and preserved for review in an efficient manner.
Dated: August 2, 2004
DIBIASO, ACTING P.J.
The Vera Institute has done some good work focusing on Blakely's impact on the states. Jon Wool and Don Stemen have put together a report entitled, "Aggravated Sentencing: Blakely v. Washington — Practical Implications for State Sentencing Systems."
2 Big Opinions
The first is by Judge Gerard Lynch of the Southern District of New York, who I happened to have taken two classes from and is my Note advisor. Judge Lynch is widely regarded as a leading thinker on sentencing issues, so his very length opinion which says that the guidelines are constitutional will certainly draw a great deal of attention. The case is US v. Emmenegger.
Get the case here.
The second case is from the 8th Circuit, it's called US v. Pirani, No 03-2871 (8th Cir., Aug. 5, 2004). I have not has a chance to read it but I can say that court rules that pre-Blakely findings of fact are plain error. That's a big deal, for obvious reasons. More later...
Blakely News and Cases
Today's news comes from Maine. The state of Maine will hear arguments in a Blakely appeal where the defendant was sentenced under a Maine law that created a two-tiered sentencing system. The first range was for what one might call "garden variety" offenses, and the second tier was for the most serious class of crimes. Sound familiar?
This case is a bit peculiar because its impact will be truncated. Earlier this year, the Maine Legislature substantially reformed the sentencing statute, eliminating the two tier provision.
Read all about it from the Press Herald.
According to Lexis/Nexis, the Pineiro opinion was revised a few days ago. It still says that the guidelines are constitutional, but I can't say from having looked it over quickly what the revisions are.
From federal court in Nebraska, we get US v. Swan, 2004 U.S. Dist. LEXIS 14883 (D. Neb. Aug. 2, 2004). Judge Joseph Bataillon's opinion has caused quite a stir. Doug Berman has covered this case on his blog, you can read about it here.
Wednesday, August 04, 2004
Blakely News and Information
I've returned from the Washington Legal Foundation's Blakely conference. The conference was full of lawyers (especially DOJ), press and students, all eager to learn about Blakely.
I'll share a perspective that was offered during the conference that merits repeating. One of the panelists, I'm not sure which, made a comment regarding the Blakely standstill in the courts. The panelist suggested that many defendants want finality to their sentence. They want to do their time and be done with it. The Blakely "limbo" (which is further documented later in this post), he pointed out, frustrates many defendant's desires to move on with their lives.
A great deal of the Blakely discussion that goes on this blog and others like it, is very academic. I get many emails from prisoners and people facing jail time asking me for help with their case. Unfortunately, I can't help other than by running this blog, but it was good to hear about Blakely from a defendant's perspective today.
Chicken Soup for Your Sentencing Soul? The Washington Post has a story entitled, "Court Offers Guidance on Sentencing In Md., Va.." Consider this passage from the article which is in reference to the 4th Circuit's ruling in Hammoud:
"It's innovative," said Steven L. Chanenson, a Villanova University law professor and former federal prosecutor. "It's kind of like the chicken soup theory: I'm not sure how much it's going to help, but it can't hurt."
NPR has an audio piece on Blakely, featured are:
David Savage, Supreme Court reporter for the Los Angeles Times
James B. Comey, U.S. deputy attorney general
Douglas Berman, law professor at the Moritz College of Law at the Ohio State University
Update: The Tuscon Citizen is running a very good Associated Press article entitled,"Lawyers still struggling with Supreme Court ruling on prisoner sentencing."
Developments in the courts
Talk about bad timing. Imagine having your sentenced affirmed on June 23, 2004 and then a day later, Blakely is decided. You then petition for a rehearing, raising Blakey issues and the court says that because you didn't raise the issue on the 23rd, you're out of luck. It happened in the 11th Circuit in US v. Levy, 2004 U.S. App. LEXIS 15924 (11th Cir., 2004) (per curiam). Ouch! Is it me, or does it rub you the wrong way that none of the judges put their name on this opinion?
Several courts are holding tight for the moment. The 9th Circuit in US v. Lamere, 2004 U.S. App. LEXIS 15874 (9th Cir., 2004) and United States v. Minter, 2004 U.S. App. LEXIS 15878 (9th Cir., 2004) has put some sentencing appeals on hold until Blakely is a little clearer.
From Ohio - the Court of Appeals in Ohio for the Second Appellate district has hinted that Blakely does not require the jury to authorize consecutive sentences in State v. Sour, 2004 Ohio 4048, P6 (Ohio Ct. App., 2004). In Sour, the court rules that there is no Blakely problem because the court relied on facts admitted by the defendant and his prior convictions. So, that comes close but isn't on point.
Tuesday, August 03, 2004
Blakely's Impact on Death Sentences in Texas
First, some background on Tennard:
Tennard was convicted of capital murder in the state of Texas and sentenced to death. During the trial, Tennard introduced evidence that he had an I.Q. score of 67. The jury, however, did not consider Tennard's reduced mental capacity during the sentencing phase of the trial. The jury was only asked to determine whether the crime was committed deliberately and whether Tennard posed a future risk. The jury later sentenced him to death.
Tennard appealed. His federal habeas petition was denied by the district court. The court of appeals also denied his appeal, stating that Tennard had to show a nexus between his mental retardation and the capital murder. The court concluded that Tennard failed to introduce at trial any evidence showing that his mental retardation (as evidenced by his I.Q. of 67) caused him to commit the murder.
The Supreme Court considered whether Atkins v. Virginia, which found the death penalty for mentally retarded persons unconstitutional, applies if the crime cannot be attributed to mental retardation. In a 6-3 decision, Justice O’Connor, writing for the Court, held that Tennard's mental retardation could reasonably be understood as relevant to his crime.
Now, based on Blakely (which I mercifully will not summarize) and Tennard, the appellant, Perry, makes the following claim in his brief to the Court of Criminal Appeals of Texas:
You can get the brief here.
Cato Institute Event in DC
You can get more information from the Cato Institute here.
New Federal Cases
Under Blakely as interpreted in Booker, a defendant has the right to have a jury decide factual issues that will increase the defendant's sentence. As Booker holds, the Guidelines's contrary assertion that a district judge may make such factual determinations based upon the preponderance of the evidence runs afoul of the Sixth Amendment. In this case, the district judge made several factual findings and used these findings to support sentence enhancements for distributing pornographic images with the expectation of receiving other images and engaging in a pattern of activity involving the sexual abuse of minors. We therefore must remand Ohlinger's case to the district judge for re-sentencing in light of Booker.
Also from the Seventh Circuit, we get US v. Lagiglio, (No. 01 CR 348-7) 2004 U.S. Dist. LEXIS 14611 (N.D. Ill., July 29, 2004), a case on remand from the Seventh Circuit Court of Appeals.
LaGiglio was convicted of conspiracy to impede the collection of taxes in violation of 18 U.S.C. 371. Her sentence was enhanced pursuant to findings regarding the amount of tax loss and that the offense involved sophisticated means.
Judge Grady wrote:
Thus, it does appear that in light of Booker, LaGiglio raises a substantial question that is likely to require reversal, at least for the purpose of resentencing.
Lots of Morning News
Lyle Denniston has an article in the New York Times. Bloomberg has an updated story. David Savage of the LA Times has covered the story. Tony Mauro of the Legal Times has a thoughtful article on yesterday’s events. And finally, the USA Today has a story, too (featuring Justice Scalia's picture, capturing him deep in thought - about Blakely, no doubt).
If you’re tired of stories recapping yesterday’s news, read this article from the New York Law Journal: Lawyer Who Tried 'Blakely' Logic in '01 Again Fails in Bid for Lower Sentence.
Defense lawyer Gerald Shargel has been unsuccessfully arguing Blakely’s logic since 2001, and when he got his shot to argue Blakely now that it is the law, he lost.
Monday, August 02, 2004
First Circuit Hears Blakely Arguments
The first circuit heard arguments today in two cases with Blakely implications. Spectators got the feeling that the panel was not too interested. Speculation is that they may be more than happy to wait until the Supremes act on this on.
The cases were:
00-2397 United States v. Ronald A.X. Stokes
04-1099 United States v. Stephen Savarese
Anemic Poll Results
The poll asked whether the Court should have taken US v. Bijou instead of Fanfan, with Fanfan or rejected taking US v. Bijou all together. An impressive 34 votes were recorded, with a few of those coming in after the Court announced it was taking Fanfan (that's my mistake).
Eighteen voters (53%) said the Court should take Bijou instead of Fanfan. Nine (26%) said Bijou and Fanfan would be best. Seven (21%) said the Court should not take Bijou.
The new poll (located on the right-hand sidebar, below the Archives and the counter) asks: Did the Supreme Court make a mistake by certifying the SG's two questions without any modification?
News from the 4th Circuit
The facts of the case are very interesting. Mohamad Hammoud was convicted of cigarette smuggling and his sentence was enhanced for, among other things, providing financial support to Hezbollah. Under the guidelines his sentence came out to be 155 years. Hammoud's lawyers argued that Blakely invalidates a significant portion of Hammoud's sentence because the terrorism enhancement was not considered by the jury. Hammoud's lawyers argued that his sentence, after taking Blakely into consideration, should be under 5 years.
A report from the daily press indicates that Judge J. Harvie Wilkinson III expressed a preference to wait on a Supreme Court decision before deciding Hammoud's case. "If we start going down this road ahead of the Supreme Court we'll be in a total state of confusion," Wilkinson said.
Update: A reader has written in to say that after a few hours after hearing en banc argument in USA v. Hammoud, the 4th Cir. will not overturn the Federal Sentencing Guidelines. The reader reports that the court has issued an order to that effect, with opinions to follow later. The court is also expected to instruct district courts to issue "alternative" sentences. Dissent(s) are expected.
Another reader writes in to confirm that the 4th Circuit has upheld the guidelines. On the alternate sentencing issue, the court's order reads as follows:
The Supreme Court Responds!!!
The questions presented are the questions presented by the SG.
Oral argument is scheduled for October 4th.
SCOTUS blog broke the story.
Update: Bloomberg now has a story on the grant; The Mercury News has a story.
Lyle Denniston of the SCOTUS blog has an extended post describing the Court's grant.
Developments in the Courts
A few weeks ago, the Supreme Court of Michigan announced in Claypool (available here), that Blakely did not affect the state's guideline regime.
Justice Kelly’s dissent in People v. Couch, 2004 Mich. LEXIS 1685 (Mich., July 30, 2004) is short but noteworthy:
In his motion for reconsideration, defendant claims that the recent United States Supreme Court decision Blakely v Washington is applicable to Michigan's sentencing scheme. I would request full briefing and oral argument on the issue. It is jurisprudentially significant and affects this defendant as well as many others.
While a majority of this Court has already determined that Blakely is inapplicable, see People v Claypool, it did so in a footnote in a case where the issue was neither raised nor briefed. Given the significance of the issue, it should have the benefit of full briefing and oral argument.
Therefore, I would grant leave and direct the parties to address Blakely's applicability to Michigan's sentencing scheme in general and to this defendant's sentence in particular.
From the Federal courts
The Ninth Circuit issued a short, unpublished opinion in US v. Magana, 2004 U.S. App. LEXIS 15759 (No. 98-10487)(9th Cir., July 29, 2004) last week.
Magana was charged with violating 21 USC 841, the primary federal drug statute. His indictment did not allege a drug quantity and the jury did not find the quantity of drug involved beyond a reasonable doubt. His sentence of 360 months, based on drug quantity findings by the judge, therefore, exceeded the 20 year statutory limit of 21 USC 841(b)(1)(c). Apprendi error was clear, the court noted, but the question now is whether resentencing is appropriate. The court says that it is.
In addition to mandating resentencing as a result of Ameline, the court notes in a footnote that “Ameline also dictates that we vacate the sentence enhancement for obstruction of justice imposed on Magana….”
New Indictments Against McWane Executives
The article is entitled, "Supreme Court ruling spurs new indictments." The article reports on new indictments that have been filed which now allege sentencing factors in the indictment. In one case, a superseded indictment contains six pages of enhancements, according to the paper.
Among the superseded indictments are the indictments of executives of the McWane Cast Iron Pipe Company. The excutives have been charged with various environmental crimes. You can get more information on the McWane indictments from the DOJ.
The McWane corporation was the subjects of a 3 part series in the New York Times called "Dangerous Business." This Pultizer Prize winning series exposed some of the deplorable working conditions found at places like McWane. I read the three part series in my first year of law school as part of Columbia's Regulatory State course. I doubt I'll ever forget the McWane Corporation after reading those articles. I highly recommend the series.
A word of caution from the Eastern District of New York
So, be careful out there.
Monday Morning News Stories and Blog Updates
Advocates on both sides appear convinced the Court will take up the issue, but they will be closely watching which cases the justices decide to review, and how quickly, as a sign of the legendary clout of the solicitor general's office in helping the Court set its agenda.
Hampton Roads Daily Press has a Blakely article in which Ken Lammers, a Midlothian defense lawyer, and owner of the Crim Law blog is quoted as saying that Blakely is a "tempest in a teapot."
The article reports that, "Virginia's state courts aren't affected because the state's sentencing guidelines are only recommendations, and judges can choose whether to comply." Several commentators have suggested converting the federal guidelines into recommendations, presumbly along the same lines as Virginia.
The Boston Globe has a very good article tracing the guidelines from Breyer to Blakely. There’s also a discussion of what Congress may be up to.
The Denver Post has an article entitled, “Protecting the right to a jury trial.” The article was written by Robert Hardaway, a professor of law at the University of Denver College of Law. The article focuses on Blakely’s impact on military courts
Marcia Oddi of the Indiana Law Blog has completed a very useful review of Blakely implications in the 7th Circuit and in Indiana state courts.