Friday, August 13, 2004

USSC To Hold A Public Meeting

Thanks to Alex Eisemann for bringing this notice to my attention:

August 12, 2004


Pursuant to Rule 3.5 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public meeting of the Commission is scheduled for Wednesday, August 25, 2004 at 10:00 a.m. The meeting will be held in the Commissioner's conference room at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby).

It is expected that the public meeting will last approximately thirty minutes to conduct the business detailed in the following agenda:

Report of the Chair
Report of the Staff Director
Approval of April Minutes
Vote on Notice of Priorities
Vote on Promulgation of Commentary Amendments

More from the 7th Circuit

Marcia Oddi, who has her finger on the pulse of the 7th Circuit, directed my attention to some new Blakely developments. She writes:

The 7th Circuit website has posted two additional opinions today, in addition to the three in my earlier entry. The second is a Blakely opinion.

Unfortunately, I'm really pressed for time today (my last day of work), so I can't effectively recap the news. But, you can read more about these developments here.

Morning News

The Courier Journal has an article entitled, “High court decision could invalidate sentencing rules.” And the Rocky Mountain News writes, “Ex-Qwest exec may face longer time in prison.”

Thursday, August 12, 2004

2nd Cir. Takes On Blakely - Guidelines Constitutional (for now)

No time for introductions, the Second Circuit has issued a substantive Blakely opinion available here.

What did they do? The short answer: uphold the Guidelines. Here's an excerpt:

We therefore reject appellants’ arguments that, in this Circuit, the Sixth Amendment now requires every enhancement factor that increases a Guidelines range to be pleaded and proved to a jury beyond a reasonable doubt. Unless and until the Supreme Court rules otherwise, the law in this Circuit remains as stated in Garcia, Thomas, and our other related case law. We conclude that the district court did not err in sentencing defendants in accordance with the Guidelines as previously interpreted by this Court. In so holding, we expect that, until the Supreme Court rules otherwise, the courts of this Circuit will continue fully to apply the Guidelines.

PS - How smart do I look, suggesting earlier today that the 2nd Cir. may not be able to weigh in on the Blakely debate because they chose to certify 3 questions instead of issuing a substantive opinion? Par for the course.

Thursday Blakely Happenings

Some News

The ABA Justice Kennedy Commission Report is out. Get details, and the report, from Setencing Law and Policy here.

As a result of Blakely, some of the sentencing discussion is starting to focus on mandatory minimum sentences. Most of the commentary has been critical of mandatory minimums, but yesterday, Sandy Mattice, United States Attorney for the Eastern District of Tennessee, wrote an article defending mandatory minimums. By contrast, the ABA advocates what they call "smarter sentences."

Also from the ABA, a new article entitled, "New ABA poll shows strong public belief and trust in American jury system," is available here. That's good news, given that juries may be deciding a whole lot more in the near future.

There's a new blog on the block. The American Constitution Society has started to blog about Blakely. You can read Blog Editor Jeffrey Jamison's piece entitled, "Blakely v. Washington- Spending the Summer in a Tsunami," here.

Case Developments

The Second Circuit continues to punt Blakely issues. See US v. Marmorato, 2004 U.S. App. LEXIS 16521 (03-1659)(2d Cir., Aug. 10, 2004)("Further, in light of the Supreme Court's recent decision in Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), Marmorato has, within the last week, appealed his sentence on Sixth Amendment grounds. We do not here decide Marmorato's Blakely-based claim. We will address that challenge in a separate opinion or order to be issued at a future date.")

As it stands now, the Second Circuit's gamble to certify three questions to the Supreme Court has not paid off. Not only did the Court not accept the 2nd Circuit's offer, it appears as though the court will have to scramble and write an opinion if it wants to weigh in on the Blakely controversy.

Same in the district court of Wisconsin. See US v. Wright, 2004 U.S. Dist. LEXIS 15547 (D. Wis., Aug. 3, 2004)(“Until it declares expressly that defendants have a constitutional right to have their sentences enhanced only on the basis of facts found by a jury (or stipulated to in the course of a plea hearing), and declares the right retroactive, defendant has no right to any modification of his sentence.”)

State of the States


A few weeks ago, the Michigan Supreme Court, in Michigan v. Claypool, ruled that the Michigan guidelines are compatible with Blakely. The court's decision has come under attack by some as premature.

For example, today an article in the Detroit Free Press entitled, "State Supreme Court ruling needlessly hasty," makes the argument that the court failed to give Blakely the attention it deserves. In an earlier article, Jim Neuward, director of the State Appellate Defender Office, makes a similar point.

Lower courts in Michigan are also voicing their unease. See posts here and here.

One final observation, while we're still in Michigan. I can't help but notice that my friend, Ohio State University Mortiz School of Law Professor Doug Berman at Sentencing Law and Policy, linked to a Sports Illustrated preseason ranking of college football teams. If you want a far more accurate poll, I recommend the ESPN poll. Go Blue!


Remember the Minnesota Commission Report that said that the state's guidelines were basically sound?

Well, the Minnesota court system is about to test that hypothesis in a few remands in: State v. Heath, 2004 Minn. App. LEXIS 939 (A03-737)(Minn. Ct. App., Aug. 10, 2004) and State v. Kaufman, 2004 Minn. App. LEXIS 923, 1-2 (A03-927)(Minn. Ct. App., Aug. 10, 2004).

California reports: Court Rescinds Threat to Hold Pay for 'Blakely'

California's 5th District Court of Appeal backpedaled Wednesday on an order that appellate lawyers said had discouraged them from using the historic Blakely sentencing decision to help their clients.

Wednesday, August 11, 2004

A full Blakely Plate

The News

More Enron news is available from the Houston Chronicle here.

Only a few days away, the National Association of State Sentencing Commission's annual conference will take place in Santa Fe, NM on August 15. New Mexico Business Weekly has more information. reports, "Attorneys Agree to Fight New Corporate Sentencing Rules," that the American Bar Association voted Tuesday to contest proposed new sentencing rules that reward wayward companies that surrender private legal documents to prosecutors. So, what is Blakely's reach with respect to corporations? Unfortunately, I have not been able to post some interesting articles which discuss Blakely's possible impact in the realm of anti-trust law due to costly registration requirements for accessing the articles. A sort of monopoly, I guess.

Federal courts

The Tenth Circuit just decided US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir., Aug. 10, 2004). The interesting Blakely aspect of this case is that the defendant mounted a Blakely challenge to the restitution award. The court denies his attack with this curious footnote:

n1 Following the Supreme Court's recent opinion in Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), Mr. Wooten submitted a supplemental authority letter pursuant to Fed. R. App. P. 28(j) in which he contends that the restitution order also violates Blakely. Mr. Wooten's Blakely argument fails for the same reason as his Apprendi argument, which is that the amount of the restitution award does not exceed any prescribed statutory maximum.

That seems to miss the point of Blakely entirely, does it not? I find it odd that the court failed to offer any additional explanation or tackle the issue of restitution and Blakely.

Also a bit odd, or maybe troublesome, the Eleventh Circuit just issued a ruling in US v. Curtis, No. 02-16224 (11th Cir. Aug. 10, 2004). Sentencing Law and Policy has covered this case extensively, so I refer you to that post. In a nutshell, the Eleventh Circuit has continued to bar some defendants from raising Blakely claims.

US District Judge Philip G. Reinhard may have also made a questionable call in US v. Lowe, 2004 U.S. Dist. LEXIS 15455 (N.D. Ill. Aug. 9, 2004). The court denies Lowe's habeas petition because:

Blakely itself does not declare its retroactivity, and the Supreme Court has indicated a strong likelihood it will not be given retroactive effect in Schriro v. Summerlin, 159 L. Ed. 2d 442, 124 S. Ct. 2519 (2004) (holding that Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556 (2002), announced a new procedural rule not retroactively applicable to cases already final on direct review). See United States v. Traeger, No. 04 C 2685, 2004 WL 1609132, *3 (N.D. Ill. July 8, 2004) (ruling that Blakely is not retroactive for purposes of paragraph 6 of § 2255).

As Doug Berman points out, that's not entirely right.

State courts

State ex rel. Romley v. Dairman, 2004 Ariz. App. LEXIS 113 (1 CA-SA 04-0110)(Ariz. Ct. App., Aug. 10, 2004) presents an interesting question: What about victim's rights? Despite passing on the question of whether Blakely applies to the guidelines, the court says the following regarding vicitm impact statements:

(1) it is clear to us that the trial court will need to consider Blakely when providing for the particular type of sentencing proceeding (judge or jury) at which the victim has rights, and (2) regardless of the type of sentencing proceeding that Blakely constitutionally requires, the trial judge has a statutory and Arizona constitutional mandate to allow for the presentation of permissible evidence by a victim at a sentencing proceeding whether that proceeding is before the trial judge, the jury, or a combination of the two. See Ariz. Const. art. 2, § 2.1(A)(4) (victims have the right to "be heard at any proceeding involving a post-arrest release decision, a negotiated plea and sentencing") (emphasis added); A.R.S. § 13-4410 (requiring that a victim be notified of her rights, including the right "to make a victim impact statement" and "to be present and heard at any presentence or sentencing proceeding") (emphasis added). Victims' rights are not restricted to sentencing proceedings conducted by the court. They must also be provided for in sentencing proceedings that are constitutionally required to be undertaken by a jury.

Time travel is impossible (for now): I've been told that this post, originally stamped on Tuesday at 6:35pm could not have referenced events that have not happened. Fair enough. I've corrected the mistake and promise to keep my DeLorean under 88mph.

Tuesday, August 10, 2004

1st Circuit Puts on the Brakes

A reader has brought the following order from the First Circuit to my attention:

In United States v. Cianci, --- F.3d ---, 2004 WL 1775024 (1st Cir. Aug 10, 2004), the First Circuit ordered the following:

In light of the Supreme Court's recent decision in Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004), we do not decide the sentencing appeals raised by all defendants as well as challenges by defendants and the government to the district court's forfeiture order. By separate order, we have requested additional briefing and oral argument on these issues.

Enron Trial Delayed

The Houston Chronicle is reporting that U.S. District Judge Ewing Werlein has agreed to postpone the Enron criminal trial for a month. The delay is a result of a superseded indictment of the six defendants in the Nigerian barge case.

Included in the new indictment are allegations that a scheme to pretend Enron sold Nigerian barges caused the loss of more than $80 million. The new indictment also alleges some common sentencing factor enhancements such as monetary loss, role in the offense and betrayal of public and private trust.

The government has asked for a bifurcated trial, where after the jury decides guilt or innocence, the jury would also deliberate on the relevant sentencing factors. The Houston Chronicle reports that Judge Werlein is likely to grant the government's request.

This is an interesting development, because this case is being tried in Texas, which is in the 5th Circuit. Looks like the government is buying some Blakely insurance.

Morning Roundup

Today is a slow news day, so I’m going to do a little blog house keeping.

Some Poll Results and a Bold Prediction

The most recent poll question posted on this site asked: Did the Supreme Court make a mistake by certifying the SG's two questions without any modification?

The results were rather one sided: 75% (36 total) voted that the Court had made a mistake and 25% (12 total) votes that the Court did not make a mistake.

Perhaps those that voted, or even those that didn’t, could use the comments to explain why they think the Court did or did not make a mistake.

With the end of every poll comes a new poll. The poll is located on the right-hand sidebar, below the counter and the Archives section. The new question (which I should save for later but I bet it will make a comeback) asks:

In US v. Booker and US v. Fanfan, the Supreme Court will:

- Vote to uphold the guidelines by a thin margin (1-2 votes)
- Vote to uphold the guidelines by a wide margin (3 votes or more)
- Vote to strike down the guidelines by a thin margin (1-2 votes)
- Vote to strike down the guidelines by a wide margin (3 votes or more)
- Other

Admittedly, the answers are a little imprecise, but given my space limitations you can take “strike down the guidelines” to mean a more modest “rule that judicial fact finding, on a preponderance of the evidence standard, which enhances a defendant’s sentence is unconstitutional under Blakely when a jury has not found those facts beyond a reasonable doubt or the defendant has not admitted them.” Just want to be clear, but you know what I meant.

Before you rush off to cast your vote, I’d like to share a conversation I had with an associate at a Washington DC law firm regarding the likely outcome of the Booker/Fanfan cases. The associate, who clerked on the Supreme Court, predicted that the Court would vote to uphold the guidelines by a 5-4 margin. That's a bold prediction, but even more bold was the associate's prediction that the swing vote would be Justice Scalia. I think the associate's words were something along the lines of, "This will line up just like US v. Harris."

Some not-so significant, but maybe important later, case news

By Blakely standards, United States v. Mortimer, 2004 U.S. Dist. LEXIS 15015 (Cr. No. 03-14 Erie) (D. Pa., July 28, 2004) is old news. And on top of that, it’s not one of those sexy Blakely opinions which we’ve been treated to for the last several weeks. But you may want to keep you eye on what the Court of Appeals for the Third Circuit does with this case.

Some facts - Mortimer pled guilty to unlawfully manufacturing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

The base offense level as reported in the presentence report was determined to be 28, based on the finding that Mr. Mortimer possessed a total of 66 grams of pseudoephedrine. Mortimer’s plea, however, did not stipulate to a specific drug quantity. Mortimer, who has an appeal pending in the Third Circuit, filed a post-sentence objection to the PSR with the district court.

Mortimer contends that his base level offense should be 12, the level applicable to possession of a detectible amount of pseudoephedrine.

Because his appeal is pending, Judge Maurice B. Cohill, Jr. refused to certify Mortimer's objection to the presentence report base level and re-sentence him.

We’ll see what happens.

An Interesting Proposal

Sentencing Law and Policy has posted a proposal from Larry Kupers for revising the sentencing guidelines. Get the proposal, and more background here.

My Mistake

Finally, let me issue a mea culpa to Howard Kieffer of BOPWatch (among other organizations and affiliations) for not crediting him appropriately in my post for raising the possibility of an O’Connor recusal (accessible here). I wasn’t sure whether Howard wanted his name associated with the post and my default position is to not use an emailer’s name. My apologies.

Monday, August 09, 2004

Calling All Michiganders

The Michigan Supreme Court has already said that Blakely does not affect the state’s guidelines. Not all the judges in Michigan agree, however (And it's not the first time either). Take a look at this footnote from People v. Ellis, 2004 Mich. App. LEXIS 2065(No. 246709) (Mich. Ct. App., Aug. 3, 2004)(per curiam):

n25 MCL 777.36(2)(a). We note that MCL 777.36(2)(a) appears on its face to be in opposition to the recent United States Supreme Court decision of Blakely v Washington, US ; S. Ct. ; L. Ed. 2d ; 72 USLW 4546 (June 24, 2004), as the statute explicitly allows a sentencing court to consider factors not before the jury. However, a majority of the Michigan Supreme Court recently decided that Blakely does not apply to Michigan's indeterminate sentencing guidelines in which the maximum sentence is set by law. People v Claypool, Mich. ; N.W.2d (Docket No. 122696, decided July 22, 2004), slip op at 17, n 14 (Justices Cavanagh, Weaver and Young concurred with Justices Taylor and Markman, writing for the Court, that Blakely is inapplicable in Michigan).

Here’s the Michigan statute the footnote refers to:

§ 777.36. Intent to kill or injure another individual.

Sec. 36. (1) Offense variable 6 is the offender's intent to kill or injure another individual. Score offense variable 6 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:

(a) The offender had premeditated intent to kill or the killing was committed while committing or attempting to commit arson, criminal sexual conduct in the first or third degree, child abuse in the first degree, a major controlled substance offense, robbery, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind,extortion, or kidnapping or the killing was the murder of a peace officer or a corrections officer..... 50 points

(b) The offender had unpremeditated intent to kill, the intent to do great bodily harm, or created a very high risk of death or great bodily harm knowing that death or great bodily harm was the probable result........................ 25 points

(c) The offender had intent to injure or the killing was committed in an extreme emotional state caused by an adequate provocation and before a reasonable amount of time elapsed for the offender to calm or there was gross negligence amounting to an unreasonable disregard for life........... 10 points

(d) The offender had no intent to kill or injure. 0 points

(2) All of the following apply to scoring offense variable 6.

(a) The sentencing judge shall score this variable consistent with a jury verdict unless the judge has information that was not presented to the jury.

(b) Score 10 points if a killing is intentional within the definition of second degree murder or voluntary manslaughter, but the death occurred in a combative situation or in response to victimization of the offender by the decedent.

It's Official - 8th Circuit Goes En Banc

In US v. Mooney we get the following from the 8th Circuit (get the official document here):

On the court’s own motion, petition for rehearing en banc is granted. The opinion and judgment of this court filed July 23, 2004, are vacated.

The en banc argument will be held at a time and place to be announced. Petitions for rehearing are not necessary and the court will notify counsel if supplemental briefing is desired.

Uh, recuse me?

Not too long ago, Ken Lammers over at Crim Law posed the following question: Chief Judge Wilkins was the first head of the US Sentencing Commission (see page 7 of this pdf) and thus forever linked to it. Does anyone know if he has recused himself from the 02 August 2004 4th Circuit en banc argument concerning the application of Blakely?

Of course, the answer was “no.” And I have good reason to believe that he never even considered it.

Ken, Doug Berman and I discussed the recusal issue over email and came across United States v. Glick, 946 F.2d 335 (4th Cir., 1991). One of the issues in Glick was whether a judge who sat on the Sentencing Commission should recuse themselves from cases where there was an appeal relating to a guidelines issue. In Glick, the court cites United States v. Wright, 873 F.2d 437, 445 (1st Cir. 1989) (Breyer, J., writing separately), where then Judge Breyer, wrote the following after summarizing some practical reasons for why recusal was not warranted in Wright:

In light of these considerations, I shall not recuse myself in this case, where no special circumstances are present, nor shall I automatically recuse myself in typical Guidelines cases, unless they involve a serious legal challenge to the Guidelines themselves. I shall, however, entertain any motion for recusal that is made. Parties should inform the clerk of any such motion; and the clerk will transmit the motion to me without indication as to which party has made it. (emphasis added by the Blakely Blog)

Admittedly, when Judge Breyer wrote in Glick, he was an active member of the Sentencing Commission. And since becoming a Justice, he has presided over sentencing cases, even writing the opinion in Buford v. United States, 532 U.S. 59 (2001). And perhaps those distinctions make this a moot point, but that won’t stop me from raising a few questions relating to recusals. First, should Justice Breyer, as one of the architects of the guidelines take a cue fro Wright and recuse himself from Booker and Fanfan? Second, should Justice O’Connor recuse herself for essentially telling us how she would vote in Booker/Fanfan in her Blakely dissent?

The first question was posed by Ken Lammers at Crim Law and as I said, the distinctions between Judge Breyer in Wright and Justice Breyer in Booker/Fanfan probably make this a moot point. After all, no one told Hugo Black he couldn’t preside over a separation of powers case because he was once a senator from Alabama. In fact, Justice Black relied on his own statements as a senator when confronted with interpreting the meaning of Section Two of the Twenty-First Amendment which repealed prohibition. See Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 337 (1964)(Black, J., dissenting).

The second question may deserve a little more discussion, however. I don’t think I've read any discussion on the web of the second question, so I ask: Should Justice O’Connor recuse herself, just as Justice Scalia did in the Newdow case?

To illustrate this point, I have excepted some of Justice O’Connor’s dissent which could be cited to support a request that O’Connor recuse herself. But before I do that, I will point out that in several places in her dissent Justice O’Connor uses careful language which suggests the guidelines are in trouble, not that she thinks their fate is sealed. But I think you'd have to admit, despite some of the careful language, that her Blakely dissent sure does appear to tip her hand. Here are some excepts from Part IV of Justice O’Connor’s dissent:

It is no answer to say that today’s opinion impacts only Washington’s scheme and not others, such as, for example, the Federal Sentencing Guidelines. See ante, at 9, n. 9 (“The Federal Guidelines are not before us, and we express no opinion on them”); cf. Apprendi, supra, at 496—497 (claiming not to overrule Walton, supra, soon thereafter overruled in Ring); Apprendi, supra, at 497, n. 21 (reserving question of Federal Sentencing Guidelines). The fact that the Federal Sentencing Guidelines are promulgated by an administrative agency nominally located in the Judicial Branch is irrelevant to the majority’s reasoning.

The structure of the Federal Guidelines likewise does not, as the Government half-heartedly suggests, provide any grounds for distinction. Brief for United States as Amicus Curiae 27—29. Washington’s scheme is almost identical to the upward departure regime established by 18 U.S.C. § 3553(b) and implemented in USSG §5K2.0. If anything, the structural differences that do exist make the Federal Guidelines more vulnerable to attack.

If the Washington scheme does not comport with the Constitution, it is hard to imagine a guidelines scheme that would.

This raises another interesting possibility. Assuming that Justice O’Connor does not recuse herself, what is her vote likely to be? Will she vote in a manner consistent with what she implies in her dissent is the natural result of Blakely, striking down the federal guidelines? If she doesn’t vote to invalidate the guidelines in light of her Blakely dissent, well…

Not Another Manic Monday

A mercifully slow news day. Here' what's been going on lately.
This Saturday, the Boston Globe published, “Sentence ruling disrupts courts.” The article is well researched and a recommended read. The article begins:

A recent US Supreme Court decision on sentencing guidelines is causing widespread disruption in Boston's federal courts, leading one judge to issue three different sentences to one defendant this week and a second judge to free a convicted drug trafficker, while dozens of other cases have been left in doubt.

The article documents the building backlog of defendants awaiting sentencing as courts wait for the Supreme Court to decide Blakely Part II. The article also describes the practice of some judges, which rather than wait, are issuing up to 3 different sentences.

The news in Minnesota has focused on the state’s sentencing guidelines. An AP article entitled, “Panel says state sentencing system safe from major overhaul,” describes the Minnesota Sentencing Guidelines Commission report which more or less says that the state’s guidelines are sound. The commission report recommends that the state “go slow” with whatever reforms are needed. Where have I heard that before?

The ABA Journal has an article entitled, "Compound Sentencing Problems." Take a look at this provocative quote from the article, which is in reference to the Supreme Court:

"Anytime they get into any kind of substantive criminal law issue, they generally screw things up," says University of Pennsylvania law professor Paul H. Robinson. As a member of the U.S. Sentencing Commission, Robinson cast the lone vote against the original federal guidelines in 1987.

Tom Goldstein of the SCOTUS blog (and NACDL amicus brief contributor) has this to say:

"This may be a sort of trigger for rethinking the entire federal system," Goldstein says. "But the justices can’t legislate, so the question is whether they’ll put in a stopgap measure and hope that Congress acts."

(Thanks go to James K. for pointing this out)

Update: I missed a good editorial this morning by Erik Luna, associate professor of law at the University of Utah. He writes, "Let judges do their job." Professor Luna notes in the article, "I can't help humming the refrain from R.E.M.'s 1987 rock ditty: 'It's the end of the world as we know it, and I feel fine.'" All kidding aside, this is a recommended read.

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