Saturday, September 11, 2004

The Constitution Project To Host Blakely Discussion

The Constitution Project has put together an interactive Blakely panel to discuss the future of state and federal sentencing. The discussion will take place Sept 14th in the National Press Club Building in Washington, DC. The discussion will be facilitated by Ronald H. Weich, a partner at Zuckerman Spaeder LLP and former chief counsel to Senator Kennedy on the Senate Judiciary Committee. You can get more information (including, who, what, when and where here).

Unfortunately, the invitation says you must RSVP by yesterday. Maybe they can squeeze a few more. Unfortunately for me, the discussion is taking place about 30 feet away from the offices of Kirkland & Ellis LLP, where I spent all of this last summer.

Friday, September 10, 2004

Update on Frank Quattrone

The New York Times ran a story yesterday on Frank Quattrone's sentencing. Quattrone was sentenced to 18 months, several months more than was expected. Judge Owen extended Quattrone's sentence after finding that Qauttrone has perjured himself. An appeal on several grounds, Blakely included, is expected.

The Crime and Federalism Blog comments on Quattrone's sentence here.

Thursday, September 09, 2004

Thoughts on the Sentencing Commission's Brief

The Sentencing Commission’s brief is far more “legal” than the Senator’s brief. The Commission’s brief makes a valiant effort to distinguish the federal guidelines from Washington’s guidelines system. Nonetheless, much of the brief highlights the Herculean efforts of the Sentencing Commission. When the brief is not engaged in making a “legal” argument, it is focused on detailing the work of the Commission. Much of that detail is driven towards spotlighting the Commission’s efforts at reducing sentencing disparities. Overall, this brief makes some interesting legal arguments which attempt to distinguish the federal guidelines, but the portions of the brief that discuss the Commission’s admittedly important work, are lacking because they imply that if the Court rules against the Guidelines, their work will become obsolete. Personally, I don’t think that’s right and I’ve explained that elsewhere. This post will focus on the specifics of the Commission’s brief.

The Role of the Commission

Not surprisingly, the Commission’s brief puffs up the role of the Commission. In particular, the brief goes into great detail to describe the mounds of data, analysis and care that goes into the Commission’s work. The brief then explains how this work has been used to fine-tune the guidelines and reduce disparities in sentencing. This is a common theme in the government’s briefs: the guidelines are good because they reduce sentencing disparities. Fair enough. But would a Blakelyized guidelines regime not be able to accomplish the same goals? The Commission implies that it would not, but they fail to make that clear in their brief. Like then Senator’s brief, the implication is that if the Court rules against the government, we will be stuck with indeterminate sentencing.

The Commission’s brief describes the Commission as an “independent commission,” quoting the statutory language. The Commission’s placement in the Judiciary, the brief claims, bolsters the Commission’s independence and supports the claim that the guidelines simply channel judicial discretion. Since judicial sentencing discretion was virtually unlimited prior to the guidelines, an independent commission placed within the judiciary can effectively preserve, but guide, judicial sentencing discretion.

There are several problems with this characterization of the Commission, however. The Commission’s “independence” has eroded over time. As others have pointed out, the Commission is “independent” in name, but not in practice. Legislation such as the PROTECT Act undermines the independence argument, especially when the Congress ensures that judges will not comprise a majority of the commissioners, as it did with the Feeney Amendment. Even if the Commission is independent, in whatever sense of the word you wish to use, the brief concedes that Congress directed the Commission to consider certain factors, and not others, when crafting the guidelines. The Feeney Amendment continued that practice. A clear difference between pre-guideline judicial sentencing discretion and post-guideline discretion is that Congress, acting through the Commission by defining their mandate, has trimmed and channeled judicial discretion.

Just how independent is the Sentencing Commission when compared to Article III judges? Judges have life tenure, the commissioners do not. Congress can change the composition of the Commission to reduce the judiciary’s influence in its own commission, which Congress has done. Congress must at least tacitly approve amendments to the guidelines (180 day period). Amendments to the guidelines cannot come directly from the Commission. Congress can curtail sentencing discretion at any time, as it has in the past. In the end, this doesn’t sound very “independent,” and that’s leaving aside what everyone knowsthe Commission kowtows to Congress.

While the portions of the brief that discuss the Commission’s role are significant, I can’t see a Justice changing their vote based on the Commission’s prior accomplishments. I also think that most of the Justices will look at the Commission’s legal status as independent with a jaundiced eye when compared to the reality.

Distinguishing the Federal Guidelines and Washington’s Guidelines

The brief goes to great lengths (3 pages, or so) to make the argument that the guidelines cannot and do not trump Acts of Congress. Because the guidelines all live within the statutory maximum and minimum, the Commission argues that the guidelines are constitutional. From June 24, 2000 (when Apprendi was decided) to June 23, 2004, that would be the end of it. In fact, defendants made “Blakely” arguments in Apprendi’s wake and lost. But now, they have Blakely. Blakely changes the focus on the statutory maximum, which the Commission’s brief is trying to bring back into vogue.

The Commission’s brief offer two major distinctions between the federal guidelines and the Washington guidelines. The first is that Washington’s guidelines are directly promulgated by the Washington legislature and the federal guidelines are not. This distinction, the Commission claims, is significant because the Washington system, in effect, creates statutory offenses. The federal system, however, does not create offenses, but just directs judicial discretion. There are reasons, however, to doubt both the premise and the impact of this argument. As discussed supra, there is good reason to doubt the premise, which is that the Commission is independent. Plus, sometimes the Congress amends the guidelines directly. What do we do there? The guidelines, although not Acts of Congress, must be tacitly approved and the guidelines do have the force of law. If a judge doesn’t follow the guidelines, they will be reversed. Finally, Blakely’s focus on the jury, not the Legislature, may be broad enough to make this distinction immaterial. (As an aside, this section of the brief makes me think that much of this Blakely mess is a delegation issue. I’m increasingly attracted to that possibility.)

The second distinction offered by the Commission is that the Washington statute extended judicial discretion by allowing it to find facts which were elements of greater offenses. By contrast, the federal system constrains discretion, it does not extend it. This is an interesting point, but one that begs the question, in my view. Both Booker and Fanfan were accused of drug crimes (21 USC 841), for which there is an escalating punishment for different drug types and quantities. To say that the guidelines constrain sentencing discretion, rather than extend it in the drug quantity context, is to presuppose the answer to this question: are the drug quantity thresholds in 21 USC 841 sentencing factors or elements? If they are sentencing factors, the Commission’s distinction makes more sense, but if they are elements, the Commission is actually making an argument for the respondent. This tricky question is, in part, what prompted the NACDL in their amicus brief to argue that the Court should take a non-drug case. Furthermore, the language in Blakely is broader than what the Commission is crediting it as. Perhaps this is their attempt to prune that language. Even if that is true, wouldn’t relevant conduct enhancements meet the test/distinction brought forth by the Commission’s brief? Isn’t that even more egregious than the Blakely case?

Finally, the Commission’s brief points out that several of the Court’s recent precedents would have to be overruled if they invalidated the guidelines. Rather than defend the individual decisions, however, the brief takes a “you don’t really want to do this, do you?” tone when discussing the cases. There’s even a superfluous, but certainly purposeful, Scalia parenthetical in the cite to the Watts case from when Scalia was on the DC Circuit.

A great deal of the dispute in Booker and Fanfan can be traced to a decision which was made over twenty years ago. In the early days, the Commission was forced with a choice. Describe conduct in the guidelines, or track statutory language. Most of the states had implemented the latter. The Commission went with the former. Due to that choice, you are reading this blog.

Thursday News and Updates

Yesterday's big news was the announcement of the 4th Circuit's decision in Hammoud, which you can get courtesy of Sentencing Law and Policy here.


Quattrone gets 18 months. has a story on the sentencing, in which Judge Owen enhanced Quattrone's sentence for perjury, Blakely notwithstanding. The article discusses perjury and Blakely in reasonable detail.

From Mississippi, U.S. District Judge David Bramlette has delayed sentencing a defendant who may have valid Blakely claims. The defendant's case, which involves drug offenses, presents some relevant conduct issues which may be proscribed by Blakely.


The Oregon Court of Appeals has issued a Blakely opinion in Oregon v. Sawatzky
(0003-32189, 0009-37299; A116857 (Control), A117424)(Ore. Ct. App. Sept 8, 2004). The opinion discusses in detail, the workings of the Oregon sentencing guidelines, which have flown under my radar thus far, despite the fact that the Supreme Court vacated and remanded a recent Oregon case for reconsideration in light of Blakely. See Dilts v. Oregon, ___ US ___, 124 S Ct 2906, ___ L Ed 2d ___ (2004). In this case, the defendant's sentence was enhanced based on an "abuse of trust" sentencing factor.

The court summarizes the
Oregon guidelines as follows:

Under Oregon's sentencing guidelines scheme, the presumptive sentence for a felony is based on the elements of the crime itself and the offender's criminal history. The sentencing court "shall" impose the presumptive sentence unless it imposes a departure sentence based on judicial findings of "substantial and compelling reasons" for departure which are not based on, or dependent on, the jury's findings.

Here's how the court sums it all up:

In light of the Court's statements in Blakely, it is apparent that the rationale underlying Dilts was incorrect. The Court has made clear in Blakely that a "statutory maximum" sentence for purposes of the Sixth Amendment is not something that, by mere legislative directive, can encompass a sentence enhancement that is based solely on judicial factfinding.

We conclude, consistently with Blakely, that the relevant "prescribed statutory maximum" under the Oregon sentencing guidelines is the presumptive sentence that the court determines based on the offender's criminal history and crime seriousness score. Guidelines departure sentences, which require judicial findings of fact and are not, under the current scheme, based on facts found by the jury, do not comport with the Sixth Amendment to the United States Constitution.

Sentences vacated; cases remanded for resentencing; otherwise affirmed.

Also from Oregon, the Oregon State Bar has published and article entitled, "Has the Supreme Court made us an offer we can’t refuse?" The article was written by attorney Jesse Wm. Barton, who also happens to have been the victor in Oregon v. Sawatzky. According to Barton:

Blakely is of great interest to the general public, because it presents Oregon a unique opportunity to save tens of millions, and maybe even hundreds of millions of dollars in correctional costs. As Everett Dirksen might have said, this is "real money."

This is a fantastic article for those that have an interest in the Oregon sentencing guidelines, or state guidelines in general. I also happen to like the concluding paragraph:

In other words, any current and future discussions about the appropriate legislative response to Blakely should not slavishly focus on attempting to restore an unconstitutional sentencing scheme created 15 years ago. The discussions instead should focus on the state’s modern priorities and current exigencies. Only that sort of discussion would allow the legislature to "best discern the true interest of" the state and be "least likely to sacrifice it to temporary or partial considerations."

From the 7th Circuit - US v. Loutos
Loutos pled guilty to wire fraud and his sentence was enhanced based on the relevant conduct (amount of loss) proven in the trial of a co-defendant. Despite rejecting the defendant's motion to withdraw his plea agreement, the 7th Circuit remanded Loutos's case for resentencing because the district court judge relied on relevant conduct which was not submitted to the jury.

From the 10th Circuit
In Leonard v. US, 2004 U.S. App. LEXIS 18958 (10th Cir., Sept. 8, 2004), the court denied a defendant's motion under the Antiterrorism and Effective Death Penalty Act (AEDPA) to file a second or successive 28 U.S.C. § 2255 motion based on Blakely.

The Colorado Supreme Court will hear a Blakely appeal. Yesterday, the court issued the following cert. grant:

Whether Blakely v. Washington, 159 L. Ed. 2d 403, 541 U.S. __, 124 S. Ct. 2531 ( June 24, 2004 ), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) prohibit the aggravation of petitioner's sentence because the statutory enhancement factors, defined in section 18-1-105(9)(a)(II) and section 18-1-105(9)(a)(V), were never charged in an information nor pled to by petitioner.


Petition for Writ of Certiorari GRANTED EN BANC.

Wednesday, September 08, 2004

Looking at the Senator's Amicus Brief

Senators Hatch, Kennedy and Feinstein formed an unlikely coalition to file an amicus brief in Booker and Fanfan (“Senator’s Brief”). The Senator’s brief, written by Gregory G. Garre (a partner at DC’s Hogan & Hartson) is highly pragmatic, focusing on the practical consequences of undoing the guidelines instead of offering legal arguments for saving the guidelines. My impression of the brief is that the Senators are telling the Court: “Look, we put a lot of work into this guideline thing, please don’t undo it. Okay?"

As others have noted (see Doug Berman’s post on this subject here), the Senator’s brief is more of a policy paper than a nitty-gritty legal brief with lots of see also’s, cf.’s and but see’s. The brief doesn’t cite the Sixth Amendment, for example. In fact, if you look at the TOC, it doesn’t cite any portion of the constitution explicitly.

The brief starts where the Senate left off in mid-July after the Senate Judiciary Committee met to discuss Blakely, by describing the legal environment as chaotic, confused, lacking order, consistency and fairness (pgs. 1, 3). Although virtually all (if not all) of the Senators at the Blakely hearing decried the uncertain status quo, it’s somewhat peculiar that Ted Kennedy would want to sign-off on a brief that saves the guidelines. After all, Senator Kennedy isn’t exactly a fan of the Feeney Amendments or the general erosion of judicial discretion under the guidelines. He made that clear at the Blakely hearing. So, why the brief? I think it can be traced to a false, forced choice asserted in all of the briefs which argue for preserving the guidelines. (Or, is Senator Kennedy sending a subtle message to hopeful reformers? Is Kennedy hinting that if the guidelines are struck down that Congress will respond with draconian, but constitutional, mandatory minimums? Or, have I read too many John Grisham novels?)

The false, forced choice is that if the Court strikes down the guidelines, we will be forced to return to indeterminate sentencing. The Senator’s brief clearly embraces this dilemma and attempts to leverage the threat of indeterminate sentencing as a strategy for preserving the status quo ante (pre-June 24th, that status quo ante). The Senator’s brief, as do all the others, argue that severing the guidelines is incompatible with Congress’s intentions. The non-severability argument bolsters the false dilemma, because if the government loses Question 1, their position on Question 2 (severability), could cause one to rethink the answer to Question 1, just to avoid indeterminate sentencing.The basic message on this point is as follows: We put a lot of work into these guidelines. We did it because no one, and I mean no one, thinks indeterminate sentencing is a good thing. But, if you unravel all of our hard work, we’ll be forced to go back to a system that no one likes.

As I see it, this argument suffers from a major deficiency: it isn’t true. The Blakely Court explicitly stated that determinate sentencing is constitutional; it’s just a question of how we can make it work with the 6th Amendment. Jury sentencing, which the Senator’s brief says is a bad idea because it costs a lot and is unwieldy, would preserve determinate sentencing. The Senators may not want to charge juries with sentencing factors, but that’s a policy preference. Striking down the guidelines does not inexorably compel indeterminate sentencing. After all, Washington still has determinate sentencing (as do most states).

Yet, the Senators urge the Court to consider “urgent practical and policy considerations” which militate in favor of saving the guidelines. (This doesn’t sound very Hatch-ian to me, as an aside). The brief documents quite extensively, all of the hard work and sacrifice that went into the SRA. The brief cites political stalemates which forestalled prior attempts at reform (pgs. 12-13) to highlight the fragility of sentencing reform efforts. Senator Kennedy is quoted in the brief as having said in 1983 that, “Federal sentencing reform has been long overdue.” The irony of these arguments, and the Kennedy quote in particular, is that the environment for reform is as ripe as it has been in 20 years. (I recently wrote an article making this point). In fact, it’s arguably better than it was 20 years ago. The time for reform is now, but the political leaders you would think are most likely to lead that movement are arguing for the status quo ante.

I officially nominate this brief for the Bizarro World post found on Sentencing Law and Policy.

Later today, I'll offer some thoughts on the USSC brief.

Morning News


The Atlantic Monthly has published an article entitled, “Suspended Sentencing.” The article is by Benjamin Wittes, an editorial writer specializing in legal affairs for The Washington Post. The article characterizes Blakely as "the single most irresponsible decision in the modern history of the Supreme Court." Unfortunately, you have to buy a subscription to read the article, but you can sign up for a free trial issue.

The Express Times published an article chronicling prosecutor’s difficulties in the post-Blakely world. The article is entitled, “Sentencing uncertainty frustrates prosecutors.”

The Indianapolis Star has reported on the North District of Indiana’s decision to continue sentencing defendants.

Tuesday, September 07, 2004

District Courts Weigh In

Some news from the district courts...

Keep the Presses Running

The Indiana Law Blog is reporting that Chief Judge Robert Miller Jr., of the U.S. District Court of Northern Indiana, will not postpone sentencing criminal defendants, despite a request from the prosecution to halt sentencing.

It’s worth a lot, to us.

Judge James B. Zagel has written an interesting (and seemingly self-deprecating) opinion in US v. Reyes-Acosta, 2004 U.S. Dist. LEXIS 17635 (No. 04 CR 0126 ) (N.D. Ill., Sept. 2, 2004). Despite the fact that Judge Zagel easily dismisses the defendant's motion to withdraw his guikty plea, Judge Zagel's opinion discusses several topic s of interest.

The central issue in the case was that Reyes-Acosta invoked Blakely as a reason for why he should be allowed to withdraw his guilty plea. Judge Zagel characterizes Reyes-Acosta’s argument as follows:

The theory of the motion to withdraw is that the defendant was forced to admit to the facts of his prior conviction. If he had failed to do so, the government could contend that he had not fully accepted responsibility, which would effectively add 3 levels to his final offense total.

Judge Zagel then comments on Blakely:

It is the decision of Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004) and the subsequent opinion of our Court of Appeals in Booker that precipitated defendant's motion to withdraw his guilty plea. Booker held that Blakely invalidated much of the approach of the United States Sentencing Guidelines. Booker, 375 F.3d 508, 2004 U.S. App. LEXIS 14223 at *6-8. With respect to this case, the holding requires that the government prove beyond a reasonable doubt the facts which would justify the 16-level increase and do so before a jury (unless waived) with evidence that is admissible under the Federal Rules of Evidence. All this is in contrast to the Guideline sentencing which remits the determination of aggravating circumstances to the judge who may accept evidence that would be inadmissible at trial and need only find the circumstances proved by a preponderance of the evidence. Of course, Booker may not hold up, but it is binding upon me now, and I shall follow it. For the little or nothing this is worth, I agree with Booker.

In the end, Judge Zagel denies the motion to withdraw the plea because:

There is no claim that the prior conviction and sentence could not be conclusively proven beyond any reasonable doubt.

As the record now stands, what could have been lost here is only the chance that, out of mercy, a jury would have ignored overwhelming evidence and decided to ignore the truth. While the chance to pull the wool over a jury's eyes is inherent in the right to a jury trial, we deal here with a case in which the jury was validly waived on the question of guilt or innocence.

No Retroactivity

In Morris v. US, 2004 U.S. Dist. LEXIS 17639 (C.D. Ill., 2004), US District Judge Jeanne E. Scott denied Morris’s motion to apply Blakely retroactively to Morris’s case on collateral review.

Morning News

I have returned (for good) after completing one week of intensive ethics instruction. So, from here on out, I promise to "do the right thing."

In this post I've linked to a few news stories. Later today, I will post some commentary on at least two of the briefs filed last week in Booker and Fanfan.

Vikram Amar has written a Findlaw article entitled, "When -- If Ever -- Can Facts Found By Judges Lengthen Criminal Sentences? A Key Question Now Facing the Supreme Court." Among other things, Amar addresses the argument that "statutory" means statutory, which arguably saves the guidelines, which are not statutes. He says:

To put the point slightly differently, the more Blakely is about the relationship between the jury and the judge, rather than about the relationship between the judiciary and the legislature, the less important the word "statutory" should be in the Blakely formulation.

Also from Findlaw, columnist Ed Lazarus wrote an article entitled,"
The Crucial Criminal Cases that Will Start the New Supreme Court Term: Testing the Federal Sentencing Guidelines' Constitutionality." The article discusses the role of discretion in sentencing, how the guidelines can be improved and what a new guidelines system should look like.

From the Washington Post, we get "Quattrone's Fate Lies in Firm Hands." Last May, investment banker Paul Quattrone was convicted of
obstructing a federal securities investigation and attempted witness-tampering. The Post article notes that Quattrone's lawyers fear that U.S. District Judge Richard Owen will impose a harsh sentence on Quattrone which could land him in jail for 11-16 months. Curiously, the article suggests that a longer prison term may be possible, if Judge Owen declares the guidelines unconstitutional. This observation is followed two paragraphs later by the statement that the Second Circuit has upheld the guidelines.

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