Wednesday, August 25, 2004

First Circuit on Ineffective Assistance of Counsel

Phil here again. While I was busy writing the last post to try to get a discussion going on an issue sparked in my mind by Prof. Berman (see below), he has posted a new development. The First Circuit has denied a certificate of appealability based on a prisoner's complaint that his lawyer was inneffective in anticipating the Supreme Court's ruling in Blakely. The case is Campbell v. US, 02-2387 (1st Cir. Aug. 25, 2004), and Prof. Berman has posted excerpts here.

"Just the Facts, M'am"

Joe Friday's classic refrain is an appropriate title for this post in which I want to just highlight one development that I believe hasn't been given due attention in the post-Blakely environment. It seems to me that a cogent argument could be made that some determinations necessary to support enhancements are not factual determinations at all but legal ones. Perhaps this is the answer to Prof. Berman's astute observation about the decision in Paulus (E.D. Wisc.), which you can read on Sentencing Law & Policy. The judge in that case said his determination that the crime at issue in that case contributed to a public loss in confidence in government was not the type of determination covered by Blakely. Was he trying to say that this determination was not a determination of fact?

Smattering of News

This is Phil Fortino posting on Jason's behalf while he is in Vegas, no doubt in a 24-hour hold 'em game by now.

There's just a couple of news items out there this morning. This story from Montgomery, AL describes a fourth indictment handed down againt a drug dealer. Actually, this is the first of the four amended because of Blakely. The newest indictment lists the properties the government may seek to seize if he is convicted. I, for one, think it's curious that the government amends indictments while their official policy is that they need not do so. The previous amendments in this case -- one to up the quantity of marijuana and another to add a charge -- are encouraging, however. They show compliance with the new rules is possible.

You can read about a federal judge in Charleston putting sentencing on hold here.

In Kansas, a federal judge is going to hold a jury trial to determine whether he can depart upwards in a case involving a man with 11 prior DUI convictions. Read about it here.

This editorial by an assistant United States attorney extols the benefits of mandatory minimum sentences (though not very persuasively). I find it humorous that there is a wanted ad for correctional officers just below the editorial.

The Houston Chronicle has an article on the delay of the Enron trial.

Tuesday, August 24, 2004

Viva Las Vegas

After having absorbed countless hours of watching the World Series of Poker, I'm going on vacation in Sin City for a few days. During my absence, good friend and fellow Columbia third-year, Phil Fortino will keep the blog up to date.

I asked Phil to fill-in for me because not only are we good friends, he too is a Blakely aficionado.

If things go poorly in Vegas, I may start soliciting donations for the "cost" of running the blog. (Just kidding...I hope.)

Two New Blakely Essays

Two new Blakely essays are forthcoming in The Columbia Journal of Law and Social Problems. My intimate connections with the Journal, and its staff, have allowed me to make available on this blog drafts of the essays.

The first essay, written by third-year Columbia law student, Phil Fortino, is entitled “A Post-Blakely Era or Post-Blakely Error?” Phil's essay argues that the Guidelines are constitutional. Unlike the Washington statute at issue in Blakely (and in Apprendi, etc.), the Guidelines do not make the sentencing enhancements contingent on judicial fact-finding. Nor do they specify a burden of proof. Judicial fact-finding and the preponderance standard are products of pre-Guidelines case law. Furthermore, pre-Blakely cases implicitly recognize these facts, by ordering changes in procedure but leaving the Guidelines untouched in cases where traditional application of the Guidelines violated Apprendi. Phil claims this history was over looked because no party in the decision-making process had interests that coincided with the correct result. You can access a current draft of the essay here.

The second essay, is entitled “Blakely’s Potential,” and was written by the owner of this blog. My essay argues that Blakely has presented a rare opportunity to critically evaluate and reform sentencing policy. With some guidance from the Court, it may be possible to rewrite the entire federal code, or at a minimum, substantially revise sentencing policy. The essay also argues that the Sentencing Commission should be a target of reform. You can access a current draft of the essay here.

Both authors welcome any comments. Mr. Fortino can be reached here, and I can be reached here.

Morning Update

Montgomery, Al. businessman Leon Carmichael has been re-indicted (for the fourth time), this time to comply with Blakely. This story in the Montgomery Advisor details the case up to this point.


Yesterday, Sentencing Law and Policy covered the denial of Washington’s rehearing petition to the Court in Blakely (details here). This came as no surprise to veteran court watchers who think the Red Sox won the World Series the last time the Court granted a rehearing.


Monday, August 23, 2004

Seeking Some Blakely Help

Kate Alfieri, a federal appellate attorney in San Francisco, wrote me seeking some advice from the readers of this blog. Below, I've pasted the text of the email she sent me which presents some interesting procedural and substantive (Harris v. US) questions. If anyone reading this post has any advice for Kate, please use the comments or you can contact her at this email address.

The question:

Appellate client receives memorandum decision from the 9th Circuit on June 22, 2004 denying his appeal, including a claim that: The district court sentenced appellant for two convictions of 18 U.S.C. §924(c) on separate dates by imposing a seven-year consecutive sentence on the first count and a twenty-five year consecutive sentence on the second count. The court imposed the initial seven-year term based on a conclusion that the defendant “brandished” the firearm at the time of the offense even though special verdict forms were submitted to the jury on the issue of whether appellant possessed, brandished or discharged a firearm on the occasion of each bank robbery. The jury returned special verdicts declaring that appellant only possessed the firearm on each occasion. (9th Cir found dist ct had a right to determine these facts under preponderance standard).

Blakely comes down on June 24th. Appellate counsel does not file a petition for
rehearing based on Blakely.

Ninth Circuit issues the mandate on July 15, 2004.

It seems that Blakely applies to all cases pending on direct review when it was issued. Thus, is appellant’s case still pending on direct review up until the date of the issuance of the mandate? (The end of the petition for rehearing period + 7); Or on the date of the issuance of the memorandum decision?

If appellant’s case is still pending when Blakely is issued, then he may raise it on a 2255, otherwise, no. Therefore, the ultimate question, is whether I should file a motion to recall the mandate. But to do so, I must show a miscarriage of justice, which would only be the case if client is foreclosed from raising Blakely on a 2255 because his appeal was not pending at the time of its issuance.


Midwest focus

US v. Paulus

Some old district court news (old to me, at least) from Wisconsin which I just became aware of.

In US v. Paulus, 2004 U.S. Dist. LEXIS 16427 ( No. 04-CR-083)(E.D. Wis., Aug. 6, 2004), Judge William C. Griesbach rejects the defendant's Blakely challenge on the grounds that the defendant admitted the facts which were the basis for the enhancement. But, Judge Griesbach also discussed additional ground upon which the defendant's Blakely claims would fail. In that discussion, he explains what he would have done had the Blakely argument not been faulty:

I also note, however, that even if the defendant had not admitted the relevant facts as part of the plea agreement, the court would not be barred from considering those facts in determining an appropriate sentence. Where Blakely prevents the United States Sentencing Guidelines from being constitutionally applied, the result is not to impose a sentence that ignores aggravating factors and takes into consideration only mitigating factors. Nor is the proper response to convene a jury to determine the myriad of factors that can and should legitimately impact the sentence that should be imposed in a case where there is no dispute as to the defendant's guilt. Instead, where Blakely precludes the application of the Guidelines, the conclusion that most reasonably follows is that the Guidelines should not be applied at all and sentencing should proceed under the law as it existed prior to the enactment of the Guidelines. See United States v. Croxford, 2004 WL 1521560, * 12, *13 (D Utah July 12, 2004); see also United States v. Einstman, 2004 WL 1576622 (S.D.N.Y. July 14, 2004); and United States v. Mueffleman, 2004 WL 1672320 [*12] (D. Mass. July 26, 2004). Of course, under pre-Guideline law, the court is not bound by the Guidelines, but may determine an appropriate sentence considering the sentencing factors set forth in 18 U.S.C. § 3553(a) based on the credible evidence before it. Croxford at * 14. And while the court would not be bound by the Guidelines, it would still be free to look to them as guidance in fashioning a fair and just sentence since they embody the careful consideration and study on the part of the Sentencing Commission of the myriad of factors that should be properly considered in determining an appropriate sentence. Id., at * 15. That is precisely what this court would in fact do, as it has done in other cases where the issue has been raised. Consideration of the Sentencing Guidelines as a guide, as opposed to a mandate, will also allow sentencing courts to minimize the wide disparity in sentencing across the country for similarly situated defendants that led to the enactment of the Guidelines in the first place. The court therefore concludes that neither Blakely, nor Booker, preclude consideration of all of the factors relevant to determining a just and fair sentence under the guidelines and will proceed to consider whether a departure is warranted in this case.


Jason Carson v. State of Indiana

And in Indiana, Marcia Oddi has blogged on another Indiana Court of Appeals which has issued an opinion which concludes, "Therefore, even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, this finding would have no effect on Carson’s sentence. Petition for rehearing denied."




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