Saturday, September 18, 2004

US v. Morgan (1st Cir.) Will See the Light

According to the docket sheet, the previously unpublished opinion of the First Circuit in US v. Morgan, No. 03-1768 (1st Cir. Sept. 2, 2004) will be amended and published. Although Morgan does not explicitly hold that Blakely invalidates the guidelines, it is certainly in tension with district court cases from that circuit that have said just that.

Below you'll find the docket sheet. (Thanks to the reader who provided the tip).

03-1768  US v. Morgan


9/14/04 ERRATA SHEET to opinion filed. The opinion of this court
issued September 2, 2004, is amended as follows: On page 17,
line 7, insert between "circuit precedent," and "we cannot"
the following: "(not yet clearly established to be
erroneous)" [905665-1] [909348-1] [03-1768] (turn)

9/15/04 ORDER entered by Judge Bruce M. Selya, Judge John C.
Porfilio, and Judge Sandra L. Lynch. This court's opinion
of September 2, 2004, previously issued not for
publication, is to be published. [03-1768] (turn)


Docket as of September 15, 2004 8:31 pm


Friday, September 17, 2004

Blakely News

Legislative or Judicial? That (may be) the question

Findlaw columnist Vikram Amar has written an article entitled, "Are the U.S. Sentencing Guidelines Judicial or Legislative? And Will the Answer Determine Whether They Survive Supreme Court Review?" As all Blakely followers know, this is a very important question to which the answer may decide the fate of the federal guidelines. Although it is possible for the Court to say that the guidelines are purely judicial and still strike them down, that seems unlikely. If the guidelines were to fall as a result of Blakely, it appears most likely that the Court would recognize their judicial origins but acknowledge their legislative force and tacit mandate. As I've stated previously, it's questions like this that make me think that the Booker/Fanfan case will turn on old-fashioned Mistretta grounds.

Minnesota News

The Pioneer Press is running a short story on Blakely in which the state's sentencing commission recommends that defendants could waive jury trials to determine sentences that exceed state guidelines.


Thursday, September 16, 2004

News from the California Courts

Yesterday, the California Appellate Court for the 4th District announced its decision in People v. George, 2004 WL 2051167 (Cal. App. 4 Dist. Sept. 15, 2004), which held that Blakely bars the imposition of an upper term sentence. The court also rejected the government's claims that the defendant waived the Blakely issue and that any Blakely error was harmless.

The Metropolitan News-Enterprise has a story covering the decision.

Wednesday, September 15, 2004

Cases and News

In the Maine

There are two stories from Maine today.

"You are very, very lucky." Those are the words of district judge John Woodcock to a man who was sentenced for trying to buy OxyContin in the parking lot of a Bangor restaurant. As a result of a timely plea and a timely Supreme Court decision, the defendant's sentence was reduced by one year. The full story can be accessed here.

Judge Hornby, who presided over Duncan Fanfan's sentencing, issued and opinion in US v. Brown, 2004 U.S. Dist. LEXIS 18247(No. 04-31-P-H)(D. Me., Sept. 10, 2004) which denies a defendant's claims that a superceded indictment should be thrown out. Here's a snippet:

In this case, the grand jury returned its initial indictment before the Supreme Court decided Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), and before this District held that Blakely applies to federal sentencing guidelines, see United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004); United States v. Zompa, 326 F. Supp.2d 176 (D. Me. 2004). As a result of those decisions, only facts stipulated by the defendant or found by a jury beyond a reasonable doubt n1 can support federal sentencing enhancements. Subsequently, the grand jury returned a Superseding Indictment that varied from the original indictment by adding allegations that, if found by a jury beyond a reasonable doubt, would support Guideline sentencing enhancements. The defendant moves to dismiss the Superseding Indictment on two grounds: first, that it is barred by the Speedy Trial Act because it issued more than thirty days after he was arraigned on the initial indictment; and second, because the prosecutor allegedly misled him into delaying his guilty plea so that she would have time to get the Grand Jury to issue the Superseding Indictment. The motion is DENIED.

From the 7th Circuit

In US v. Pree, 2004 U.S. App. LEXIS 19252, 4-48 (No. 03-1516 )(7th Cir., Sept. 14, 2004) , the Seventh Circuit has taken it upon itself to raise a Blakely problem in a case where the lawyers failed to raise the issue. Here's what they had to say:

D. Sentencing Enhancement

As a final matter, we address an issue not raised by the parties--the constitutionality of the sentencing enhancement Ms. Pree received for obstruction of justice. Ms. Pree's case was briefed and argued prior to the Supreme Court's decision in Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004). Following the Court's decision in Blakely, this court held in United States v. Booker, 004 WL 1535858 (7th Cir. July 9, 2004), cert. granted, 73 U.S.L.W. 3073, 73 U.S.L.W. 3074 (U.S. Aug. 2, 2004) (No. 04-104), that enhancements imposed by the court without [*47] a jury finding violate the Sixth Amendment.

Ms. Pree does not address to this court, nor can we find evidence in the record to indicate, that she addressed before the district court the constitutionality of her sentencing enhancement. In light of the sea change in federal sentencing law wrought by Blakely and Booker, we think it appropriate to take note of the possibility of an unconstitutional sentencing enhancement. See United States v. Seacott, 15 F.3d 1380, 1383 (7th Cir. 1994). Given the precedent in this circuit prior to Blakely, we think it would be unfair to characterize Ms. Pree as having waived a challenge to the validity of her sentencing enhancement.

The Supreme Court has granted certiorari in Booker and will consider, in the very near future, the application of Blakely to the United States Sentencing Guidelines and therefore the correctness of this court's decision in Booker. We therefore shall stay our mandate in this case until the Supreme Court has rendered its decision in Booker. Within fourteen days of the Supreme Court's decision in Booker, each party may submit a memorandum presenting its views on the application of that decision to this case. n17


Tuesday, September 14, 2004

Adding Fuel to the Blakely Fire

LawFuel.com (no, I didn't make that up) has a story on another white collar sentence which has been affected by Blakely. I'll let the Fuel do the talking:


The former chief executive of a Southern California electronics company, who was convicted of "cooking" the company's books and making false statements to the Securities and Exchange Commission, was sentenced today to six months in federal prison and ordered to pay a fine of $1.25 million and nearly $3.2 million in restitution.

Richard I. Berger, 61, of Rolling Hills Estates, was sentenced by United States District Judge Robert M. Takasugi, who made it clear that he was forced to limit Berger's prison sentence because of the United States Supreme Court's recent decision in Blakely v. Washington, 124 S.Ct. 2531 (2004), and the ruling of the 9th U.S. Circuit Court of Appeals in United States v. Ameline, 376 F.3d 967 (2004), which applied Blakely to the federal sentencing guidelines.

The article goes on to say:

Because neither Blakely nor Ameline affects criminal fines or restitution, Judge Takasugi was able to impose the hefty monetary penalties after making judicial findings that include Berger causing losses of $3,144,832 million to victim banks and at least $2 million to investors.

This is an interesting, if unexplored point. Why shouldn't Blakely apply to restitution? Sentencing Law and Policy discusses the matter here and here.

Monday, September 13, 2004

Monday News

The North County Times in California has an article discussing Blakely's impact on California 's sentencing regime. The article describes the California system as follows:

California state law specifies a lower-, middle- and upper-term sentence for many crimes, including voluntary manslaughter, gross vehicular manslaughter, rape, and assault with a deadly weapon.

However, a judge is required to impose the middle-term sentence unless he or she finds that circumstances against the defendant (known as aggravating factors) justify the upper term, or circumstances in favor of the defendant (known as mitigating factors) warrant a lower term.



Sunday, September 12, 2004

8th Circuit News

I've been told by a reader that the 8th Circuit will hear oral arguments in U.S. v Glen Benton Finck, Case Number 03-3876, a case which presents some Blakely issues.

I don't have many details other than that the case comes from the Western District of Missouri (Springfield), it is a white collar crime case and oral arguments are scheduled for Tuesday in St. Louis. Additional details would be appreciated.


Sunday's News

The News Tribune from Tacoma, Washington is reporting on Blakely developments in the state. Courts have split three ways according to the article, as to how to handle the Blakely decision's impact on sentencing. One judge has convene a jury to decided whether a defendant will receive an "exceptional sentence." A different judge has stated that she lacks the authority to convene a sentencing jury. And a third judge allowed the prosecutor to amend the indictment.

The New York Times is running a story about the case of a 25 year old record producer who faces 63 years in prison for dealing marijuana. His sentence is as high as it is because he chose to go to trial, lost and ran into some federal mandatory minimums. His case has drawn the attention of some anti-mandatory minimum advocates. You can get some excellent background on this case from Sentencing Law and Policy here.

Judge John Martin and The Judges' Brief

Just like Doug Berman, I’m amazed that John Martin wrote what I’ll call the “Judges’ Brief.” Professor Berman’s Bizarro World post on Sentencing Law and policy is right on. John Martin resigned from his position as a federal district judge because of the injustices imposed by the guidelines. Those were his stated reasons, not my speculation. Now, he’s writing a brief to save the guidelines? In addition to the bizarro character of the brief, given the author, Prof. Berman is also right that the brief depicts an idealized world of sentencing, one which defies the real world experience of most people. There may be a purpose to that depiction, however.

So, why try to save the guidelines? My best guess is that Judge Martin is proposing a middle ground, essentially giving the Court an “out,” where the Court doesn’t have to say that the guidelines are constitutional or unconstitutional. Rather, Judge Martin is angling to get the Court to give Koon v. US, 518 U.S. 81 (1996) some teeth, which would in effect bring us closer to the idealized sentencing world described by Judge Martin in the brief. The brief maintains that Koon gives judges the power to depart downward, even if the guidelines don’t specifically authorize it. If Koon is given real bite, the theory goes, judges will have more latitude under the current guideline regime to depart downward, solving many of the guidelines’ flaws. That’s my theory for why Judge Martin wrote this brief. What follows are my thoughts, including more on the Koon theory, on the brief in general.

Sentence Disparities

As with all of the petitioner’s briefs, the Judges’ brief emphasizes the good work the guidelines have done to reduce disparities in sentencing. With baited breath, I read this brief waiting for the other side of the argument – that a Blakelyized guideline system couldn’t do the same. Alas, no explanation.

The Jury’s Competence

The jury is not competent to decide the many detailed and complicated issues of fact required by the guidelines. That’s the assertion of the Judges. Others have made the same claim. The brief cites the “vague” language of guidelines as a hurdle to jury sentencing. As an example, the Judges ask, what is a “vulnerable victim?” One of the factors considered under the guidelines’ is the type of victim targeted by a defendant. Judges have been deciding fro years whether a victim was a “vulnerable victim,” and adjusting sentences accordingly.

So, what is a “vulnerable victim?” If Ned Flanders were here he’d probably say something along the lines of, “As far as melon scratchers go, that’s a honeydew.” I looked up the perplexing phrase “vulnerable victim” in the guidelines. I expected to find something complicated, obscure and beyond the reach of a lay person. Under U.S.S.G. § 3A1.1 you’ll find the following definition of “vulnerable victim:”

2. For purposes of subsection (b) , "vulnerable victim" means a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct) ; and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.

Again, I’m disappointed. That doesn’t seem so hard or vague.


Which do you think is “harder?” Deciding whether the victim of mail fraud is a “vulnerable victim?” Or, deciding whether the defendant has committed mail fraud? If you’re unsure, you might want to look at the Ninth Circuit’s Model Criminal Jury Instructions on mail fraud, which you can access here. Or, how about deciding damages in a trademark case? You can look at the model instructions for that issue here.


Juries decide the mail fraud and the trademark question everyday, and those are much harder questions. Juries can also decide whether the victim was a “vulnerable victim,” the defendant was an “organizer,” or a “leader,” or the quantity of drugs (which they do most of the time, anyhow). Juries tackle much harder questions all the time, just read A Civil Action (not the movie, the book is better).

While we’re on mail fraud


Among the amici, this brief pressed the argument that the Washington system is distinct from the federal system most forcefully. Relying on lengthy passages from Judge Lynch’s decision in
Emmenegger, the brief makes some compelling arguments which relying on Blakely’s holding, not some of its seductive language (dicta?). The brief argues that the “standard sentencing range” in Washington has no analogous counterpart in the federal system. Citing Emmenegger, the brief argues, “[I]t makes sense in a substantive as well as a formal way to describe the “standard sentencing range” in Blakely as the maximum punishment for that crime. The range is closely tailored to the specific elements of a narrowly-defined crime, and the aggravating factor cited by the judge overlaps almost entirely with the very factor that distinguishes those elements from those of first-degree kidnaping, an entirely distinct crime.”

As an example, the brief cites another passage from Emmenegger which uses the wire fraud statute (18 U.S.C. § 1343) to illustrate the argument that the federal guidelines do not have a comparable “standard sentencing range.” While it is true that the federal system does not have a standard range, the federal system does have a base level offense measurement. Here’s the base level offense for mail fraud, under U.S.S.G. §2B1.1 of the guidelines:

(a) Base Offense Level:

(1) 7, if (A) the defendant was convicted of an offense referenced to this guideline; and (B) that offense of conviction has a statutory maximum term of imprisonment of 20 years or more; or

(2) 6, otherwise.

Is the base level offense the analogy to the “standard sentencing range?” Presumably, the Judges answer is “no.” They’d say that in
Washington’s case the standard and the exceptional range are different crimes, and the federal guidelines just assess the seriousness of the offense, they don’t define different crimes. That may be so, but doesn’t that beg the question of what constitutes an element or a sentencing factor? This seems to take us for a ride on Prof. Berman’s mobius strip. Is it fair to read Blakely so narrowly?

Discretion = Constitutional (?)

The Judges’ brief makes an argument in defense of the guidelines that I don’t think we’ve seen thus far. The argument is that because the guidelines contain sufficient judicial discretion, sentences imposed under the guidelines do not trigger a defendant’s Sixth Amendment rights. I’ll admit that my first reaction to this argument was, “huh?” My thinking hasn’t progressed much since my initial reading. It appears to me that this argument confuses the question. The question is not about the degree of the judge’s authority to depart, is it? I don’t see the connection between the judge’s ability to depart and the defendant’s right to have the jury decide all facts which go into his punishment. Is the brief suggesting some kind of an offset? Does the ability to depart offset judicial factfinding that leads to a higher sentence?

Bring back Koon (for the first time)

In a move that few would be brave enough to attempt, the Judges’ brief cites Justice Kennedy of all people for the proposition that the guidelines are valuable because they afford discretion to judges. Yikes. The brief also cites departure grounds post-Koon which were shorn by the Feeney Amendment. Double yikes. In a lengthy footnote (pg. 18), the Judges admit that the Feeney Amendment would short circuit a judicial revitalization of judicial discretion. In the footnote, the Judges suggest that the Feeney Amendment may be unconstitutional, but they dodge the issue by mercifully noting that the Feeney Amendment is not before the Court in Booker and Fanfan. So, what if it was before the Court and the Court upheld Feeney? That would pave the way for Congress, in one fell swoop, to undermine much of the central thrust of the Judges brief with a more expansive Feeney-type Amendment.

The Koon theory gets a little support from the “Interests of the Amici” section of the brief. Pgs. 1-2. In that section, the authors acknowledge that not all of the amici prefer the federal guidelines to other alternatives, but all agree on the need for determinate sentencing. All amici agree that a guideline system should retain “substantial judicial discretion [that] permits sentencing judges to make the factual findings that will determine how they exercise their traditional sentencing power….” Pgs. 1-2. This could be read to imply that the Judges are not looking to start over with a new guidelines system, or to turn over sentencing to jury, but would prefer to keep the current system with some modifications.

Most telling, is the passage on page 20, in which the amici cite the legislative history of the SRA and the Court’s opinion in Koon to argue that several circuits’ departure rates are too low. The Judges are clearly asking the Justices to use Koon and the SRA as means to give life to the guidelines system they envision. This theory is bolstered by the Judges’ use of the doctrine of constitutional avoidance (pg. 22).


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