Blakely Blog

Here Comes the Fat Lady

2005-01-24T01:11:00.000-05:00

After giving it some thought, I’ve decided to put the Blakely Blog to bed for good. I feel that other blogs and similar resources on the internet are doing an excellent job of keeping up with all of news and developments in this area of law and my efforts are largely duplicative. Furthermore, my schedule (which includes assisting in a soon to commence criminal trial in the SDNY) has not permitted me to spend much time working on the blog since the Booker decision.

It’s been fun, though. When I started this little endeavor I never imagined that this blog would get the attention it received. I know that the Blakely Blog was a productive endeavor from the scores of emails I received from people whose friends and family members relied on this blog, as well as others, to help sort out a complicated issue that affected them very personally.

I’d like to thank all of the people that took the time to write to me and send me opinions and news from around the country. I’d also like to thank Laurie Cohen from the Wall Street Journal who interviewed me about the Blakely Blog this summer and even mentioned me by name in the Journal.

Although I won’t be blogging any longer, I plan on submitting at least one piece of writing on the Booker case sometime this year to a legal journal. You can keep an eye out for that in the near future.

Again, thanks for reading and I wish you all the best.

Sincerely,

Jason Hernandez
jph2026@columbia.edu

CLS Sentencing Symposium - Considerations at Sentencing – What Factors are Relevant and Who Should Decide?

2005-01-21T23:41:00.000-05:00

The second panel’s topic was: Considerations at Sentencing – What Factors are Relevant and Who Should Decide?

The moderator was Judge John Martin, Debevoise & Plimpton.

The panelists were:

Kyron Huigens, Professor, Benjamin N. Cardozo School of Law
Kevin R. Reitz, Professor, University of Colorado School of Law
Paul H. Robinson, Professor, University of Pennsylvania Law School
Barbara Tombs, Executive Director, Minnesota Sentencing Guidelines Commission

This is by no means a complete or official report on the symposium; the Columbia Law Review will have an official report soon. All errors are my own.

Paul Robinson

Prof. Robinson began his presentation by suggesting that the question posed to the panel is misleading because it makes the assumption that there is one decision maker. In fact, there are several and they make a number of decision on several topics, such as:

Policymaking – setting goals, purposes
Rule articulation – turning general policy into articulable rules
Fact finding
Judgment making – expressing normative judgments
Determining punishment amount
Determining punishment method

Prof. Robinson used a chart (which I will post here when I get my hand on it tomorrow) that illustrates the kinds of decisions made by different decision makers (legislatures, judges, sentencing commissions, parole boards, juries, etc.)

In his opinion, the SRA got it right, but the Commission got it wrong.

Kyron Huigens

Prof. Huigens began by professing a preference for discretionary sentencing. He spent a great deal of time exploring the tension between Williams v. NY and the Court’s most recent 6th Amendment jurisprudence. That tension – known as the Blakely paradox to some (or possibly just me) – is that a judges can do what Blakely proscribes only as long as the legislature has refrained from establishing a statutory structure to guide sentencing. It seems inconsistent that judicial fact-finding is acceptable in indeterminate systems where defendant’s have little to no recourse to appeal a sentence, but impermissible when the legislature creates guidelines. He promised to explore this topic in an article he is working on.

Kevin R. Reitz

Prof. Reitz said that the states that have done the best job are the ones that have put in presumptive guidelines. That list includes Minnesota, Washington, Oregon, Kansas, North Carolina and Ohio. (There may have been others that I missed.) The best ones, he said, remove the prison release discretion from parole boards.

The states that have indeterminate systems are driving the prison population explosion.

Prof. Reitz discussed some of the problems he has with Booker and Blakely. The effect of Booker when lined up in the context of other Supreme Court decisions that have created loopholes to the Sixth Amendment is what he called “Constitutional Swiss cheese.” And there may be more holes than cheese.

The holes are all of the exceptions to the Booker rule, which are:

Williams; Booker II
Harris; McMillan
Patterson

He summarized the lay of the land as follows. The following systems have no Blakley problems: voluntary guidelines, indeterminate sentencing, mandatory minimum guidelines and mandatory minimum statutes. The following systems have Blakely problems: presumptive guidelines, presumptive statutes, mandatory guidelines.

The jurisdictions with Blakely problems have two options – Blakelyization or avoidance (change the system entirely).

Barabara Tombs

Barabara Tombs began by explaining that Minnesota’s guidelines are driven by retribution as a penal philosophy. “That’s why we put people in prison.” (Or something close to that). She said that the Commission’s work is guided by their chosen penal philosophy. It helps the Commission to focus on what our guidelines can and cannot do.

She felt that Blakely and Booker will hurt the younger sentencing commissions more than the older ones.

She discussed some statistics from Minnesota which were of interest. In Minnesota they have a 2% upward departure rate for sex offenses and murder. There are a lot of downward departures in drug cases (60% in some cases). Curiously, Minnesota has mandatory minimum drug sentences but judges can depart downward from the mandatory minimum. (I’m not sure how that works).

Finally, she (sensibly, in my view) observed that Blakely was all about jury sentencing and after the first few pages of Booker, it seems to have disappeared. Where did it go?

Judge Martin

In wrapping up the panel, Judge Martin said that he was disturbed by how much deference is being paid to reducing sentencing disparities. He feels like we have elevated that goal to too high a position.

He said that he likes the new system over the old, because it leaves guidelines and appellate review. Hopefully Congress won’t jump in too quickly, he added.

CLS Sentencing Panel – Prosecutorial Discretion and Its Challenges

2005-01-21T23:13:00.000-05:00

The first panel addressed the topic of prosecutorial discretion and its changes. The moderator was CLS Professor Paul Shechtman.

The panelists were:

Martha Coakley, District Attorney, Middlesex County, MA
Michele Hirshman, First Deputy A.G., New York State
Nancy King, Professor, Vanderbilt University School of Law
Ronald F. Wright, Professor, Wake Forest University School of Law

What follows are some highlights from the panel discussion. This is by no means a complete or official report on the symposium; the Columbia Law Review will have an official report soon. All errors are my own.

This panel will explore whether prosecutorial discretion holds the keys to state sentencing, as many say does in the federal system.

Ron Wright

Prof. Wright began his comments by discussing the regulatory imbalance in sentencing. Analogizing the imbalance to other more traditional areas of regulation, he suggests that we can learn from the regulatory imbalances in sentencing.

On the topic of prosecutorial guidelines, Prof. Wright noted that some states like Kansas (and Minnesota) considered establishing prosecutorial guidelines, but in the end abandoned the effort. At least one state – Washington – has experimented with the idea of prosecutorial guidelines. These are internal guidelines, however.

Prof. Wright spent a fair amount of time talking about New Jersey, a state he described as not the hot bed of sentencing reform.

Nancy King

Whereas Prof. Wright’s focus was on macro-sentencing issues, Prof. King focused on the micro picture.

She noted that a great deal of the sentencing disparity debate has focused on racial disparities and disparity among sentencing judges. Missing from the analysis is a study of the mode of conviction. For example, sentences will vary depending on whether the defendant chose a bench trial instead of a jury trial, or went to trial at all. This is what some have called the guideline’s dirty little secret.

Prof. King is in the midst of studying data from 5 states (Pennsylvania, Maryland, Minnesota, Kansas and Washington) to study the disparities that arise based on different modes of conviction. This is a work in progress but she shared some of her preliminary results.

In Maryland and Pennsylvania she found that when the defendant chooses a jury trial, they are much more likely to be incarcerated.

(Except for cocaine offenses in Pennsylvania where bench trials are more likely to result in incarceration, but incarceration rates are lower in bench trials for simple possession).

In Washington, whether the defendant pled guilty, chose a bench trial or a jury trial, the rate of incarceration did not vary in a statistically significant manner.

In Minnesota she examined 3 offenses and found that in 5th degree drug cases, a bench trial meant the defendant was less likely to go to jail.

Prof. King also observed that in mandatory guideline states the bargain is over the charge, not the sentence, because there is no room to bargain about the sentence. Some have suggested that there needs to be a year between the top and bottom of the guideline for there to be meaningful sentence bargaining.

Michele Hirshman

Michele Hirshman has been working for the NY Attorney General’s office for the last 6 years. She immediately observed that it is important to get prosecutors to see themselves as seeking justice, not convictions.

In NY, the discretion of prosecutors is very limited. Grand jury proceeding place major restrictions on what a prosecutor can do, making it difficult to build a case. The prosecutor has to present a very big part of their case to the grand jury. Elaborate evidentiary rules that constrain how they can prove a case.

She discussed the significance of electing judges and prosecutors, arguing that this democratic check is the best way to constrain prosecutors.

Martha Coakley

Martha Coakley began her presentation by asking whether we were asking the right questions? First, we thought the problem was sentencing. We addressed that. Then we thought the problem was prosecutors. But what about the role of the defense counsel?

She suggested that better funding and treating defense work as a highly respected profession is an important way to check prosecutors.

She observed that in Massachusetts they have Rule 25(b)(2) which allows judges to reduce a charge if it’s unfair. Judges have more discretion than prosecutors. This is an important check on the prosecutor.

Finally, she argued that all crimes are not created equal. In child abuse cases the ability to intervene early is of utmost importance. Someone who abuses kids needs a different sentence and rehabilitative program than a bank robber.

We spend too much money on putting people in jail and focusing on sentencing guidelines.

CLS Sentencing Symposium - Judge Lynch's Opening Remarks

2005-01-21T13:50:00.000-05:00

This post is coming to you live from Columbia Law School’s state sentencing symposium. The symposium was kicked off with some opening remarks by Judge and CLS Professor Gerard Lynch. What follows are some highlights of his opening remarks.

Judge Lynch began his comments by noting the impeccable timing of the symposium. The timing, however, was fortuitous – the symposium was not planned as a response to Blakely or Booker. The original purpose of this symposium was to steer the sentencing conversation away from Congress and the Sentencing Commission, and towards the courts.

Sentencing is still a topic that is not given a lot of attention in criminal courses. Legal and academic writing tends to focus of Congress, although federal sentencing only composes 7% of the incarcerated public. This is especially significant given that the focus of federal law (white collar crime, immigration and drug crimes) is distinct from the traditional street crimes that most people are concerned about.

Although there is no clear pattern or trajectory in sentencing law, the states have been the true innovators in sentencing.

State Sentencing Symposium at Columbia Law School

2005-01-20T14:40:00.000-05:00

The symposium starts tomorrow at 1:30pm with Judge Lynch's opening remarks. The event is open to the public and free of charge.

For more details go here.

I'll be in attendance and blogging from the symposium.

Tuesday Morning News

2005-01-18T09:19:00.000-05:00

Law.com has an interesting backstory to Justice Breyer's ethical quandary regarding the Booker case. Can one of the guidelines' architects decide their fate? Apparently, it not only matters what you ask, but who you ask. As you may recall, the bloggers spotted this issue well before the press. In this post from August, I discussed Justice Breyer's possible recusal, with a little help from the blogging community.

The Monitor has a good article discussing Booker's impact on different types of crimes. The article argues that Booker will affect white collar crime and drug crimes more than any other class of crimes, whereas more "serious" crimes will not be disturbed.

Tulsa World has an interesting article that is a few days old entitled, "Judge sticking with sentencing guidelines." Unfortunately, you have to be a subscriber to access the article. But, I did manage to find this little blurb:

U.S. Chief District Judge Sven Erik Holmes is a believer in guideline sentencing, and he intends to keep using the existing federal guidelines even though the U.S. Supreme Court said Wednesday that they are no longer mandatory.

Chief Judge Holmes issued a Blakely Blockbuster opinion in August in US v. O'Daniel. In that decision, he laid out a 4 point plan for bringing the guidelines into compliance with Blakely.

Interesting, It's-A-Small-World News: Alexandra Shapiro, the primary author of the New York Council of Defense Lawyers amicus brief, and a partner at Latham & Watkins NY, is co-teaching a Seminar in Federal Criminal Practice at Columbia Law School this semester. The course, which I am enrolled in, is also taught by Jonathan Bach, a partner at Kronish Lieb Weiner & Hellman LLP.

Sentencing is, of course, a big part of the seminar due to Blakely and Booker.

Morning News Stories

2005-01-14T09:38:00.000-05:00

Findlaw.com columnist Mark Allenbaugh writes, "The Supreme Court's New Blockbuster U.S. Sentencing Guidelines Decision: A Clear Sixth Amendment Ruling, with an Invitation to Congress to Create a Better Remedy."

Salon.com cleverly pokes, "Supreme Court to Congress: Here's what you really meant." Salon asked the current chair of the American Bar Association's committee on sentencing, Jim Felman, a practicing defense attorney in Tampa, Fla., to shed some light on the surprising Supreme Court news.

The Washington Post editorializes, "The Court on Sentencing."

Oregonians will find the following article interesting, "A better way to set prison time - Hit to federal sentencing laws is a reminder to Oregon that the state also must update its court practices."

Lots and Lots of News Stories

2005-01-13T11:31:00.000-05:00

Here is a collection of recent news stories on yesterday's opinions by the Court. Where relevant, I've excerpted interesting parts from the stories.

"High court loosens criminal sentencing guidelines," from the Seattle Times:

Gregory Poe, a Washington, D.C., attorney and former federal defender, said, "Congress is likely to make changes. And there is great concern that Congress may have an appetite to create a system applying strict penalties regardless of the merits in individual cases."

...

Frank Bowman, a professor at the Indiana University School of Law and a leading expert on the guidelines, said, "There is one thing that appears to be clear: The court has, by either judicial fiat or an act of statutory interpretation, created a system of advisory guidelines which, I think you can at least argue, give federal trial judges the greatest sentencing power they've ever had."

Assistant Attorney General Christopher Wray said the Justice Department was "disappointed" that the court had made the guidelines advisory in nature, but emphasized that the opinion makes clear that trial judges still are required to consult the guidelines in making sentencing decisions.

"Area well poised in wake of Supreme Court sentencing decision," from the Waco Tribune:

Federal inmates at the McLennan County Detention Center in downtown Waco raised the roof for joy Wednesday morning after learning on television news that the U.S. Supreme Court had upended federal sentencing guidelines.

Most inmates there have yet to be sentenced and are waiting to go to court, said Thomas Medart, chief of security at the privately run facility.

"They're happy," he said. "It's postponed some of the sentencing that would have happened, but it's not creating any problems for us."

...

U.S. District Judge Walter S. Smith Jr., who presides over Waco's federal court and is chief judge for the Western District of Texas, said he wasn't surprised by the ruling. After all, Smith issued a ruling of his own in July saying the sentencing guidelines were not constitutional and violated defendants' Sixth Amendment right to a jury trial.

Smith said he was pleased with the decision because it will give federal judges more discretion in sentencing. He said

...

Whatever the fallout, Smith said he doesn't believe Wednesday's ruling will be the last word on the subject, an observation echoed on the Supreme Court. Congress will likely set higher mandatory minimums for many crimes, again taking away judges' discretion, he said.

Johnny Sutton, U.S. attorney for the Western District of Texas, said he needs more time to digest the high court's ruling. But it doesn't appear "the sky is falling," he said.

"Sentencing guidelines tossed out," from The Pittsburgh Post-Gazette:

Calling yesterday's decision a "mess," Ohio State University law professor Douglas Berman said: "This is going to be applied in diverse and dramatically different ways in the lower courts."

For students of the Supreme Court's internal politics, the split decision yesterday reflected the influence of Breyer, who worked on sentencing reform as the Senate Judiciary Committee's chief counsel in 1979 and 1980 and served on the Sentencing Commission from 1985 to 1989. "This is Breyer's revenge," said Berman. "He loves the world he created and wants to hold onto it any way he can."

...

Sen. Arlen Specter, R-Pa., who as the Judiciary Committee chairman would preside over any rewriting of sentencing law, reacted cautiously to yesterday's ruling. "I intend to thoroughly review the Supreme Court's decision and work to establish a sentencing method that will be appropriately tough on career criminals, fair and consistent with constitutional requirements," he said.

"Judges Freed From Sentencing Rules," from the LA Times:

By basically preserving the current system, the ruling is not likely to have a broad effect on criminals serving federal terms or those awaiting sentence. It is unclear what effect it will have on future sentencing.

"There are going to be a lot of disappointed criminals in federal prison today," said Kent Scheidegger of the Criminal Justice Legal Foundation, an organization in Sacramento that supports the rights of crime victims.

Some other stories include: "Sentencing ruling may aid Cianci's early release," from the Providence Journal; "Justices weaken sentencing rules," from the Philadelphia Inquirer;"Federal sentencing system to get overhaul," from the Knoxville News Sentinel.

Late Nite Thoughts

2005-01-13T01:45:00.000-05:00

I’ve put together some of my initial reactions to today’s decision in Booker and Fanfan. The decision is a whopping 124 pages and there’s a lot to discuss, of course. These are just preliminary thoughts that I hope to refine and pick-up in the next several months.

The first opinion, written by Stevens, addresses the first question: does Blakely apply to the guidelines? The answer is yes. Although there is plenty to talk about here, the real action is in the second opinion, authored by Breyer.

Two meta-observations. First, the tone of both opinions is rather matter-of-fact when compared to Blakely. Of course, Scalia is not exactly the kumbaya type, but I get the feeling that the bitter fight over the guidelines was waged in Blakely, not in Booker and Fanfan. Second, the Booker and Fanfan opinions don’t cite to academic commentary, whereas Blakely cited to academics on the issue of prosecutorial discretion and pleas. In the remedy opinion, the Court makes several assertions regarding alternative remedies that could have been more fully explored if they had cited to scholarly work.

Now, I’ll turn to a few topics that stuck out to me.

Elements, Statutory Construction and the 6th Amendment

The Court’s first citation is to In re Winship. To my surprise, the Court then discusses Jones at length. Jones was a statutory construction case where the Court was called upon to decide whether Congress intended to create 3 separate car jacking offenses, or whether the statute identified sentencing factors. Although Jones (and Castillo and Almendarez-Torres) are relevant, they do not pose 6th Amendment questions. These cases presume the answer to the question before the Court. We know that the government must prove all elements of an offense to a jury beyond a reasonable doubt. It’s unclear how this line of cases helps us understand how we should treat a leadership enhancement (which is not an element of any offense) in light of the 6th Amendment.

But here’s the tougher question: is drug quantity an element of the offense after Booker and Fanfan? The opinion suggests that they are not, but that they may have to be treated as elements. Judge Easterbrook’s dissent in Booker said that the majority’s conception of drug quantity under Blakely was nothing more than Apprendi. Ok. Where do we stand now?

(I recognize that my thoughts on this are inchoate, but it’s late and I’m still just thinking out loud.)

What’s good law now?

The majority opinion authored by Stevens was forced to confront the viability of several cases now that Blakely applies to the guidelines. Here’s a quick run-down of what the Court said: Dunnigan survives. Witte and Watts are inapposite because they did not present 6th Amendment questions. Edwards and Mistretta are not inconsistent with the Booker ruling.

I find it hard to believe that none of these cases were overruled, or at least recognized as being in tension with the ruling. One gets the feeling that Stevens is distinguishing these cases on very narrow grounds that may not survive closer scrutiny.

Retroactivity, Prior Convictions and Mandatory Minimums

Unfortunately, the Court didn’t say much (if anything) about retroactivity, prior convictions (Almendarez-Torres) or mandatory minimums, and fact finding that leads to the imposition of mandatory minimum sentences (Harris).
This isn’t surprising, I guess, given that the cases didn’t present any of these issues. My guess would be that the Court will now grant cert on a case to handle the retroactivity question, which is the most pressing of these three topics. The Court’s adherence and praise of the Apprendi/Ring line of cases suggests that Booker and Fanfan won’t be retroactive.

What Would Congress Do? (WWCD?)

Debates will surely rage over the majority’s take on what Congress would have preferred if faced with the limitations imposed by Booker and Fanfan.

I’ll just make a brief point here and return to the topic at a later date. The Court appears to interchangeably apply two standards here: what would Congress have intended and what will make the smallest fuss. The second standard appears to play a prominent role and I’m not convinced that that’s the right standard. I am also a bit skeptical of the Court’s zealous protection of judicial factfinding. Of course “court” meant “judge” in 1987. All we knew was judicial fact finding. I’m not convinced that this legislative preference should trump the newly invigorated 6th Amendment. Instead, we’ve been given a “soft” 6th Amendment jury trial right. This portion of the remedy opinion seems out of sync (“old school,” if you will) with the new, hip, “not your found fathers” 6th Amendment that Stevens “updates” for us.

Advisory Guidelines, Relevant Conduct and Uniformity

In the second opinion, the Court justifies its choice of advisory guidelines over a jury fact-finding regime, in part, on the need to ensure uniformity by adherence to the offender’s real conduct, as expressed by relevant conduct. The argument here is that if judges can’t take relevant conduct into consideration, there will be an unbearable sentencing disparity that the SRA was supposed to eradicate.

This argument, in my view, relies on some questionable assumptions about the ability of a jury fact-finding regime to properly “account” for relevant conduct. But even assuming that jury fact-finding could not account for relevant conduct, I’m not sure that the sentencing disparity that the majority is talking about here is the kind of disparity that gave birth to the guidelines. Base level offenses would remain unaffected by a jury fact finding system. The defendant would have to answer for any discoverable relevant conduct that makes it into the indictment. Just how much of a disparity are we facing here?

Not to mention that there are competing sentencing goals that are recognized by the SRA that would counsel against rigid adherence to a real offense system. The Court’s discussion of relevant conduct cast in light of uniformity concerns glosses over the fundamental incompatibility of Blakely and relevant conduct, in my view.

Guidelines Suffer Technical Knockout - May Live To See Another Day

2005-01-12T16:26:00.000-05:00

Here's some old news - the Supreme Court ruled today that Blakely applies to the guidelines. The remedy appears to be making the guidelines advisory, subject to appeal based on a "reasonableness" standard.

I just got my first look at the opinion(s), which you can access here. I reserve the right to correct my characterization if I made a mistake.

More to follow later tonight...

5 hours and counting?

2005-01-12T05:03:00.000-05:00

Well, in 5 hours I'll be on a plane to Ft. Lauderdale. The Supreme Court will announce any new decisions tomorrow at 10 am. So my prediction, based solely on my travel schedule, is that Booker and Fanfan will be decided tomorrow, as my plane takes off.

Details to follow, if I'm right, after I land in FLL.

No Decision Today

2005-01-11T10:39:00.000-05:00

Still no decision. The next possible day for a decision is tomorrow. That and you might even get that pony you wanted for your birthday.

More Exciting News About the Columbia Sentencing Symposium

2005-01-07T15:57:00.000-05:00

I've just been made aware of some exciting additions to the upcoming Columbia Law Review symposium on state sentencing entitled, Sentencing: What's at Stake for the States?

The symposium will be held on the campus of Columbia Law School this January 21 and 22. And we might even have a Booker and Fanfan decision by then! Imagine that.

I've pasted the text of a recent press release announcing the event and some recent additions.

Judge William Pryor Headlines Symposium on State Sentencing Guidelines

Eleventh Circuit Judge William H. Pryor, Jr. Highlights List of Judges, Academics, and Practitioners Coming to New York to Debate the Merits of Various Sentencing Regimes

New York, NY --- The Columbia Law Review announced Thursday that it will be hosting a symposium entitled Sentencing: What's at Stake for the States? this January 21 and 22 on the campus of Columbia Law School in New York City. The symposium, centered primarily on state criminal sentencing regimes, will feature more than twenty of the most interesting and thoughtful voices in sentencing scholarship and practice.

The Supreme Court's decision last term in Blakely v. Washington will very likely lead a number of states to revise their sentencing guidelines, even if only to quell uncertainty as to the case's applicability. This symposium seeks to contribute to these endeavors by providing a forum for candid and lively discussions of the practical and theoretical implications of various sentencing systems and reforms. To that end, it will address a broad range of topics, including the institutional concerns inherent in guideline systems and the competing or complimentary policies underlying different sentencing frameworks.

The keynote address will be delivered by Judge William H. Pryor, Jr., of the Eleventh Circuit Court of Appeals. Throughout his career, Judge Pryor has been an outspoken advocate of sentencing reform. As Attorney General of Alabama, he led the creation of that state's Sentencing Commission, which he saw as a means to achieve "truth in sentencing," eliminate unjust disparities, and relieve a serious prison overcrowding problem and budgetary crisis. He also has championed the use of alternatives to incarceration for first-time nonviolent offenders, such as work and restitution penalties, and counseling for drug offenders.

In addition to Judge Pryor, the symposium will feature professors Rachel Barkow (NYU), Frank Bowman (Indiana), Antony Duff (Stirling), Richard Frase (Minnesota), Kyron Huigens (Cardozo), Nancy King (Vanderbilt), James Liebman (Columbia), Marc Miller (Emory), Kevin Reitz(Colorado), Paul Robinson (Penn), Kate Stith (Yale), Paul Shechtman (Columbia), Michael Tonry(Cambridge), Ron Wright (Wake Forest), and Franklin Zimring (Boalt Hall); Middlesex County(MA) D.A. Martha Coakley; Michele Hirshman of the N.Y. Attorney General's Office; Roxanne Lieb of the Washington State Institute for Public Policy; Barbara Tombs of the MN Sentencing Guidelines Commission; and Judges Gerard Lynch and John Martin, Jr. (retired).

The symposium will begin midday Friday, January 21, highlighted by Judge Pryor's address at 5:30 p.m., and end Saturday, January 22. It will be open to the public and free of charge. For a complete listing of the participants, panel topics, and event times, please visit http://www.columbialawreview.org/symposium/.

I've run out of clever blog posts to communicate that we still don't have a Booker and Fanfan decision

2004-12-13T10:20:00.000-05:00

At least that appears to be the case, based on reports from the SCOTUS blog. This means we have to wait until the new year for a decision. Jan. 11th is the next possible date for an opinion. Wow.

The waiting is the hardest part

2004-12-08T10:32:00.000-05:00

No Booker/Fanfan decision today. Next possible opinion date: Dec. 13th.

Still No Decision from the SCOTUS

2004-11-30T10:32:00.000-05:00

The next likely dates for an opinion are December 7, 8 and 13th.

State Sentencing Symposium at Columbia Law School

2004-11-01T15:40:00.000-05:00

I've just received word that the Columbia Law Review has posted an online announcement of an upcoming sentencing symposium which will focus on state sentencing. The symposium will take place at Columbia Law School on January 21st and 22nd.

The symposium will feature some fantastic panels. Here's what the web site is reporting:

Panel 1: Prosecutorial Discretion and Its Challenges
Michele Hirshman, First Deputy A.G., New York State
Nancy King, Professor, Vanderbilt University School of Law
Ron Wright, Professor, Wake Forest University School of Law

Panel 2: Considerations at Sentencing – What Factors are Relevant and Who Should Decide?
Kyron Huigens, Professor, Benjamin N. Cardozo School of Law
Kevin Reitz, Professor, University of Colorado School of Law
Paul Robinson, Professor, University of Pennsylvania Law School

Panel 3: Theories & Policies Underlying Guideline Systems
Antony Duff, Professor, University of Stirling
Richard Frase, Professor, University of Minnesota Law School
Roxanne Lieb, Director, Washington State Institute for Public Policy
Michael Tonry, Professor, University of Minnesota Law School

Panel 4: The Institutional Concerns Inherent in Sentencing Regimes
Rachel Barkow, Assistant Professor, New York University School of Law
Frank Bowman, Professor, Indiana University School of Law
Marc Miller, Professor, Emory School of Law
Frank Zimring, Professor, University of California at Berkeley School of Law

For more information, check out the CLR web site dedicated to the symposium here.

Gone Fishin'

2004-10-28T14:05:00.000-05:00

This post makes official what is obvious to readers of this blog - I am on a Blakely break of sorts until the Court decides Booker and Fanfan. The demands of Federal Courts, Mass Torts, Trial Practice and Tort Reform Research require my attention while the Supremes trade drafts back and forth.

But once they decide, I'll be back to my old form, blogging virtually 24/7. I've been doing a lot of sentencing reading the last month and I hope that this will help to make my post-Blakely commentary all the more insightful.

Hey, just think. I might be back on the horse on Monday. It could happen.

Blakely and Consecutive Sentences in New York

2004-10-19T12:04:00.000-05:00

Unfortunately, I've been away from the blog for quite some time. My mind has been at ease, however, because I know you are all in good hands as long as Sentencing Law and Policy is out there. Let's face it, in the world of Blakely blogs, Sentencing Law and Policy is the New York Times of blogs, whereas the Blakely Blog has more of a New York Post feel. That's ok, I like it that way.

One of the things that has kept me busy is a pro bono project that I have started as part of Columbia's pro bono program. What am I working on? A Blakely project, of course. I get many emails and letters from prisoners and their family members asking for my help on various Blakely appeals. Unfortunately, I have to turn all of those requests down because I'm not an attorney. Right now, I'm just a guy with a lot of debt and a blog. I've taken-on this pro bono project, which is supervised by a real live attorney, as a way to give back to the community.

Here's what I'm working on, and if anyone out there can offer some help, I'd be very appreciative (especially from jurisdictions outside of NY). This case only concerns New York state law, there are no federal charges. The client was indicted for and found guilty of, among other things, manslaughter in the first degree (NY Penal Law § 125.20 (1)) and criminal possession of a weapon in the second degree (NY Penal Law § 265.03). The indictment did not allege against whom the defendant intended to use the weapon for purposes of the possession charge, which is a distinct crime from manslaughter and relevant for purposes of sentencing. The judge, however, sentenced the defendant for manslaughter and criminal possession of a weapon.

Here's where the specifics of New York state law come in.

The judge imposed consecutive sentences on the defendant despite N.Y. Penal Law § 70.25(2) which states:

When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.

This relevant because if the indictment alleged that the defendant intened to use the weapon which he criminally possessed against the same person who he was charged with manslaughter, § 70.25(2) would likely bar a consecutive sentence.

The question here appears to be: could the judge independently find that that the defendant possessed the weapon with the intent of using against someone not in the indictment for the purposes of sentencing him to a consecutive sentence? Prior to the Blakely ruling, the state argued that the sentence did not go beyond the statutory maximum. That Apprendi-based understanding of the law is clearly undercut by Blakely, but the Blakely issue here is not as clear cut as it is in a number of cases. Was the indictment not sufficient enough to comply with Blakely?

Assuming that Blakely doesn't apply, there is an argument that criminal possession of a weapon is an offense that should be sentenced concurrently with manslaughter under § 70.25(2). My question here is, does the Blakely ruling's like obliteration (maybe "obliterate" is a strong word) of the sentencing factor/element distinction undermine NY precedent which states that possession of a weapon distinct for § 70.25(2) purposes from manslaughter?

I know that there have been challenges in California to the state's consecutive sentences law. Those cases may be inapposite because the defendant in this case is not challenging the constitutionality of § 70.25(2). He is only challenging the judicial finding of fact not included in the indictment. On the other hand, I would still like to hear from anyone who has any thoughts or experience in mounting challenges to consecutive sentencing statutes from all jurisdictions, including California.

I would appreciate it if any one out there was willing to discuss the concurrent/consecutive sentencing aspect of this case, or offer any other suggestions for research outside of New York.

Update: I've added some detail and taken some things out of this post since I first put it up.

"Restitution Proceedings In Federal Sentencing" - An Online Seminar

2004-10-19T12:02:00.000-05:00

On Wednesday, October 20 (9:00 a.m. PST) and Friday, October 22 (12:00 Noon PST), AFDA will conduct an online seminar entitled, "Restitution Proceedings In Federal Sentencing."

The program will run approximately 45 minutes to one hour. It will be held in the ONLINE SEMINARS section of the AFDA web site, which operates like a chat room but with moderator controls. The presentation format will be audio accompanied by the sequential placement of slides in the chat room screen, similar to a powerpoint presentation.

The program will present a five-step analysis in handling restitution determinations. As courts have recognized that restitution is a statutory obligation and thus not based specifically on the sentencing guidelines, this topic remains relevant in our handling of fraud / theft during this remarkable period of uncertainty surrounding the guidelines, as we await the Supreme Court's ruling in Booker / Fanfan.

For more details, please visit the AFDA web site.

Oral Argument Transcripts from Booker and Fanfan

2004-10-19T12:00:00.000-05:00

You can access a transcript of the oral argument here.

California Dreamin' and Some Thoughts About Monday's Argument at the Court

2004-10-08T13:01:00.000-05:00

After spending over an hour on the A train on my way to JFK and five and a half hours in the middle seat of row 32 aboard Delta flight 462, I’ve finally made to the beautiful campus of Stanford Law School. I’m anxiously awaiting the start of what promises to be two great days of discussion and learning. Although this blog represents the bulk of my thinking on Blakely, I hope that as a result of the Stanford conference, I will be able to produce a more serious and scholarly look at Blakely for publication in a law journal. In particular, I am very interested in exploring the historical role of the jury and the Blakely majority’s use of history to justify the majority opinion.

All of that will have to wait a little longer. The conference does not start until the afternoon, so I’m taking some time this morning to offer some of my thoughts on Monday’s argument in Booker and Fanfan.

My Prediction for Question One

As Tom Goldstein, the consummate Court insider, has reported, the word is that the Blakely majority will hold (see this post, and the surrounding posts as well). Based solely on my observation of the argument, I think that the Court will split 6-3 with respect to Question One, with Justice Kennedy joining the Blakely majority. As you may recall, I set the line at 1.5 Justices for the Booker/Fanfan argument, so I guess I think that the respondents will “cover.” (Remember, this is for novelty purposes only.).

Here’s why I think the break-down will be 6-3. First, I’m assuming that the Blakely majority will hold. There were some reports that Justice Ginsburg might defect from the Blakely majority but based on her questions on Monday, I don’t think she’s likely to defect. Plus, others are reporting that she’s sticking with the majority. I guess I just think that’s right.

Second, I can’t see O’Connor or Breyer, after their dissents in Blakely, making a 180 degree turn. These two Justices were the most active questioners of the respondents (especially Breyer), and I don’t think they will change their position. They put too much into being the voice of the dissent in Blakely, in my opinion. The Chief is hard to peg, but my guess is that he will join Breyer and O’Connor in dissent.

Finally, that leaves Justice Kennedy. Remember, Kennedy is no fan of the guidelines. In fact, he dislikes the guidelines so much that he has a report which bears his name that attacks the guidelines. Despite those feelings, he dissented in Blakely, but the handwriting is on the wall with respect to Booker and Fanfan. Why not join the majority? In my notes, I have Justice Kennedy asking only two questions to Acting SG Paul Clement, both on the topic of what constitutes a “Blakely fact.” He asked the SG if there were any facts which could still be found by the judge under Blakely. He used determining the defendant’s remorse as an example. Doug Berman has picked up on this line of questioning, suggesting that the Court start working through a distinction between “offense facts” and “offender facts.” Although I don’t think that Justice Kennedy will be able to convince the majority to endorse his bright-line, I take his questions to those of a Justice considering joining the majority. Furthermore, I think the respondents may have convinced Justice Kennedy that the "collaborative process" or "dialogue" between the branches which he extols in his dissent may have died in recent years.

I know this amounts to nothing more than a hunch, but I’ll stick to it. (By the way, if you haven’t read the Vanity Fair piece about Bush v. Gore, where former clerks on the Court at that time spill some of the beans, you should certainly get a copy. But be warned, there are some harsh words about Justice Kennedy in there and a choice quote from Scalia reminiscing about his days in Brooklyn.).

On the other hand, Justice Kennedy did ask the respondents what can be viewed as some hostile questions. He pressed them on why a standardless discretionary system is preferable to the guidelines; he asked what policy or principle dictated the respondent’s conclusions; and he asked some pragmatic questions regarding factfinding by correctional authorities, as opposed to judges. In a way, these questions are not hostile if Justice Kennedy’s fears of a standardless sentencing regime are allayed by the Court’s answer to question two. If the Court endorses an advisory guideline system, with meaningful appellate review, I think Justice Kennedy’s fears are put to rest and he joins the majority.

Assuming my prediction is right, I wonder if lower courts will be left to pickup where Justice Kennedy left off in the oral argument. Perhaps they will be the ones to propose the line, if there is one at all. As I mentioned at the beginning of this intolerably long post, I’d be interested to see how Justice Kennedy’s line fits with the judge’s and the jury’s historic role.

Question Two – Who the heck knows?

Trying to figure out what the Court will say with respect to question two is likely an exercise in futility. There are simply too many possibilities and permutations which make predicting how 5 members of the Court will vote very difficult. I do, however, think that based on the questions asked by Justice Breyer and O’Connor, which I think focused more on the remedy than the first question (the transcript will prove me right or wrong on that), that these two Justices will try very hard to agree on an answer to the severance question. My inclination here is that Breyer and O’Connor are thinking, “Well, the guidelines are going down and there’s nothing we can do about it. We might as well do what we can to help forge a consensus with respect to the second question. After all, or dissents in Blakely were so pragmatic, we might as well be pragmatic here and do what we can to limit the chaos.”

I could do a little more speculating on question two, but instead I’d like to raise a point which has been haunting me since the oral argument. At one point during the argument, one of the Justices quipped that their opinion on the second question will have limited relevance because Congress will inevitably, and likely quickly, act to repair the guidelines after the case is decided. There are reports circulating that Congress is contemplating a slue of mandatory minimum sentences should the Court invalidate the guidelines. Should that come to pass, I can’t envision who the winners would be.

Only a temporary pause

2004-10-07T14:34:00.000-05:00

I've been offline for a few days, but I will soon return to the blog. I've been busy arguing before the Senate, the Columbia Law School Senate, that is; researching for a professor (non-sentencing related); and reading for class (not so much on the last one).

I'm about 2 minutes, I'll be on my way to JFK where my ultimate destination will be Stanford Law School and the upcoming Sentencing Conference.

More blogging to come...

Late night wrap-up

2004-10-05T01:06:00.000-05:00

First, let me say that I apologize for the errors in the posts by Dave Ziff (which have been corrected). Those errors are my own, not Dave’s and are attributable to my hurried attempt to get news out on the blog. In particular, I offer my apologies to Chris, who is a fellow blogger at TalkLeft and a supporter of this blog.

I’d also like to thank Dave Ziff for taking the time to transcribe my ramblings into something coherent for readers of the blog. Thanks Dave!

Dave’s posts offer a rather broad sketch of the argument. Most of the major threads of discussion and questioning are covered by Dave’s posts, but there are many fine points which were not captured. I hope to raise those finer points over the next few days.

A few other blogs are covering the Blakely argument, notably Doug Berman on Sentencing Law and Policy (who I met in person for the first time, despite our many email exchanges), Tom Goldstein covers the argument with some insider information at the SCOTUS blog and Howard Bashman has coverage of the argument on How Appealing.

Prof. Berman’s first post offers some thoughts on the SG’s arguments on Blakely’s applicability.

Prof. Berman has rounded up the media coverage on his site, too.

I’m going to reserve further commentary until tomorrow (which is now today). What a day! Stay tuned.

The Last Word

2004-10-04T17:39:00.000-05:00

Before all was said and done, Mr. Clement had his four minute rebuttal. In those four minutes Mr. Clement touched briefly on three points. First, he noted again that a ruling for the Respondents would mean overturning Mistretta. Such a ruling would mean that the USSC was defining crimes, and under Mistretta that is not what the USSC either can do or in fact does. Second, he argued, without much elaboration, that Blakely may increase the power of the prosecutor in plea bargaining, as opposed to what Respondents had argued. Finally, Mr. Clement stated that the Kansas system, with its sentencing jury, is not a panacea.

And then the final red light went off.

Remember, Jason will be arriving back in New York City late this evening, and he will try to make some sense of all this in a real post with some real analysis. Anyway, it's been enjoyable playing Alfred to his Batman. Thanks for reading.

The Respondents Strike Back

2004-10-04T16:40:00.000-05:00

Here is Part II of the afternoon: arguments on behalf of the Respondents, Mr. Booker and Mr. FanFan.

First, it was Chris Kelly's turn, the attorney for Mr. Booker. Justice Breyer jumped in with the first question. It is interesting to note that Justice Scalia, the Justice who wrote the majority opinion in Blakely, was the most active questioner of the Petitioner; while Justice Breyer, who wrote a vigorous Blakely dissent, was the most active questioner of the Respondents. I guess each Justice wanted a chance to take his shots. Justice Breyer's question was in three parts, with each part asking Mr. Kelly whether a given sentencing system would violate Blakely. The purpose of these questions seemed to be to test the Blakely rule and try to figure out exactly what sorts of sentencing systems would be allowable under that case's holding. First, Justice Breyer lofted a softball: a system where a judge finds necessary facts. Mr. Kelly responded that this would be unconstitutional. Second, Justice Breyer asked whether a system in which a parole board determined facts would be constitutional. Such a procedure presents a system where the executive branch makes factual determinations, and gets to the issue presented earlier: whether it even matters for the Sixth Amendment what branch of government is doing the factfinding if it is not the jury. Either way, Mr. Kelly responded that such a system would also violate the Constitution. Finally, Justice Breyer asked whether Courts of Appeal would be able to make factual determinations after Blakely. Mr. Kelly's answer was again, no.

Justice Breyer then brought up what Jason has termed (and what has bothered me as well) the sentencing paradox: Under an indeterminate system a judge can pick any number of years, for any reason, based on the "finding" of any fact, but under a guideline system, the limited discretion of judges triggers constitutional problems. On this point, Justice Scalia jumped in, responding that under the indeterminate sentencing system, a Defendant is not entitled to any sentence less than the statutory maximum, whereas the guidelines create legal rights for the defendant. In his mind, this solves the paradox. (But it is still paradoxical to me that our two choices are either: (a) unrestrained judges, or (b) restrained juries, with no option for (c) restrained judges.) Justice Kennedy follows on the point, asking what policy or values create this preference for an indeterminate system over a determinate system. There seems to be no answer to this question. (Although I imagine Justice Scalia would respond that the preference is based on the choice of the Framers and their values and policies.)

Moving on, Justice Kennedy then asks Mr. Kelly about the old California system, which was an indeterminate sentencing system, but where some correctional authority (a parole officer or board) would find facts that lead to a specific sentence. Mr. Kelly remained consistent, and responded that such a system would also violate Blakely. Chief Justice Rehnquist then asked about a hypothetical system where the sentencing range is from one year to life, and then within that sentencing range the parole officer, instead of the judge, got to decide how long the defendant remained in jail. Unfortunately, there seemed to be no answer for that question.

A brief discussion of perjury followed, wherein Justice Stevens suggested that there would be no need for a separate "perjury" trial after conviction because there are instances where a defendant's testimony on the stand, if convicted, would necessarily be rejected by the jury's verdict. That in and of itself could sustain a perjury conviction. Mr. Kelly did not agree. He argued that in addition to just being not true, a perjury conviction requires that the jury find the defendant was knowingly misleading the jury. A jury's rejection of the defendant's testimony would not necessarily mean that they thought he was misleading them, but perhaps just that he was mistaken, confused, or held a different conception of events.

Mr. Kelly, a Federal Defender, [correction: Chris Kelly is not a Federal Defender; he is a private attorney, known for excellent appellate work, from Madison WI, who was CJA-appointed for Mr. Booker] relied upon and repeatedly referred to his experience as a defense attorney in order to shed light on the issues of the case. When compared to the Justices and Mr. Clement, Mr. Kelly is indeed a criminal trial expert, and it would be interesting to know how much weight the Justices gave to his statements based on experience in the trenches.

Justice Ginsburg brought up the Kansas system of sentencing juries, but that did not go anywhere.

Finally, plea bargaining was discussed. Mr. Kelly stated that in most cases federal prosecutors simply charge offense that will be easiest for them to prove. That ease of proof puts pressure on the defendant to plead guilty. Then, after the guilty plea, the prosecutors let the sentencing enhancements do the leg work, increasing the sentence based on other conduct for which their case was not as strong, and conduct that was not the topic of plea discussions. Mr. Kelly argued that if the Respondents prevail, plea bargaining would be more meaningful for all parties and there would be no surprises for defendants at the sentencing stage.

And with that, Mr. Kelly left the lectern and turned the floor over to Ms. Rosemary Scapicchio, the attorney for Mr. Fanfan. Ms. Scapicchio began by accusing the government of being (my word choice, not hers) a flip-flopper. In its Blakely amicus, the government argued that the SCOTUS should uphold the Washington guidelines at issue in that case because the USSG were indistinguishable. Now here, the government is trying to distinguish the two systems.

Ms. Scapicchio echoed and strengthen the point made by Mr. Kelly---that prosecutors simply charge the easiest offense to prove and then rely on sentencing enhancements---by noting that Mr. Fanfan's case was an example of just such prosecutorial maneuvering. Mr. Fanfan was charged with involvement in a cocaine conspiracy. The prosecutors chose not to charge Mr. Fanfan with involvement in a cocaine-base conspiracy, even though they had some evidence of his involvement. Mr. Fanfan then pleaded to the cocaine conspiracy charge, and at sentencing the prosecution introduced the evidence relating to cocaine base as part of Mr. Fanfan's relevant conduct. The eventual sentence received by Mr. Fanfan was 15 years greater than the sentence he would have received under the cocaine conspiracy alone. [correction: Mr. Fanfan did NOT receive the increased sentence, even though that is what the USSG would seem to require. The trial judge imposed the lower sentence and the Government appealed, seeking the higher sentence.] Justice Ginsburg made a comment noting the huge discrepancy---15 years---between the sentence for the plead to charge, and the actual sentence received.

The discussion then turned to severability and remedies. Justice O'Connor noted, and all parties and Justices seemed to agree, that whatever the SCOTUS does here will be at best a temporary fix because Congress is certain to act. With that said, Justice Stevens stated that he doesn't want to tear down the entire guidelines system to cure what may not be a large problem. Considering his question earlier in the afternoon about the percentage of Blakely-affected cases, Justice Stevens seems focused on the scope of the problem. If there are, indeed, only a few cases that would raise Blakely problems, Justice Stevens seems to favor some sort of band-aid solution, such as a jury sentencing system, as opposed to striking down the entire USSG system.

Finally, Justice Breyer asks if anyone has heard of anything, anything pre-Apprendi that argued the USSG were unconstitutional as a violation of the Sixth Amendment. A brief, a law review article, a comment, anything. No one had a response.

And that was all for the Respondents. I'll leave it to Jason to fill in the gaps and make sense of all this, but all in all it seems like an exciting afternoon. Now the waiting begins...

The Argument, Part I

2004-10-04T14:23:00.000-05:00

I just got off the phone with Jason. All we have discussed so far is the Petitioner's portion of the afternoon---the argument of Paul Clement, acting Solicitor General and former clerk to Justice Scalia. So what follows is a summary of Mr. Clement's argument. The Respondent's argument will be posted shortly. Then, this evening, Jason will be providing a full briefing of the day's argument, with his commentary and thoughts. I'm simply holding down the fort while he is away. And with that, let's begin...

Right at the outset, Mr. Clement set a pragmatic tone for the argument, noting that there are 1,200 sentencings that occur each week in the federal system, and that this case will affect all of them. If the Court decides this case wrongly, there will be many practical problems. After setting the tone, Mr. Clement began with a discussion of four SCOTUS cases: Witte, Dunnigan, Edwards, and Watts. Each of these cases, Mr. Clement argued, explain the relationship between the USSC, Congress, and criminal defendants, and each case approved of the current arrangement. In the Petitioner's view, a decision striking down the USSG would have to either distinguish or overrule those four recent cases, since in those cases the SCOTUS held that the USSG were sound. In response to this argument, Justice Scalia asked if there was a Sixth Amendment issue in any of the four cases. Mr. Clement responded that there was such an issue in Watts but it was not discussed further. Justice Scalia then questioned Mr. Clement regarding the purpose of the Sixth Amendment. In Justice Scalia's view (at least the view he seemed to be pressing through his questioning), the Sixth Amendment is meant to protect defendants from judges, so regardless of whether the USSG are promulgated by a quasi-judicial commission or by Congress, the protections of the Amendment would still apply. This position would side-step the entire question of what exactly the USSC is or who controls it. Justice Ginsburg, however, was not about to ignore the question, and pressed the issue of whether the USSC was actually independent. She asked if the USSG were enacted in their entirety by Congress, would Blakely then apply and strike them down? Mr. Clement agreed, if that were the case, the USSG would have to fall. Justice Ginsburg then asked if a particular provision of the USSG were enacted by Congress, or if it were enacted by the USSC at Congress's direction, would it too fall under Blakely's force? This seemed clearly to be a reference to the Feeney Amendment. In response, Mr. Clement said no. In his view, even if individual provisions were enacted by Congress, the USSG would still have an overall judicial "character" (his word) and as such even the particular provisions enacted by Congress should be upheld. Throughout this entire line of questioning, Justice Scalia maintained a sarcastic tone about the "judicial nature" of the USSC.

This issue quickly turned to a discussion of Mistretta. Mr. Clement argued that if Respondents were to prevail the Court would have to overturn Mistretta. However, in response Chief Justice Rehnquist stated that Mistretta would have been decided the other way if the premise of the case---that the USSC was not doing the work of Congress---was found not to be true. And that was the end of that line of argument.

Justice Kennedy then asked an interesting line of questions regarding differentiation between kinds of "facts." Even if Blakely were to apply to the USSG, Justice Kennedy wondered whether the jury would still need to find all "facts" necessary for a sentence. To use the Justice's example, would the jury need to find "remorse" or could that still be left to the judge, even under an application of Blakely? Mr. Clement did not seem to have a response to this question, saying only that the Respondents position was "in for a penny, in for a pound" and that there could be no differentiation between facts to which Blakely applied, and those to which it did not.

Justice Stevens wanted to know about statistics. He asked, out of all the individuals that are sentenced in the federal courts, how many present Blakely or Apprendi problems of the type posed by this case? Mr. Clement had data from 2002, which said that 65% of all sentences raise some sort of Blakely issue. However, it was unclear what sort of data that actually was, or if it was the data Justice Stevens wanted. The sort of data Justice Stevens asked about---the percentage of cases that would have Blakely problems---is not the sort of data that can be accurately and precisely measured. For example, some of that 65% probably includes cases involving drug quantity. But would all of those cases have Blakely issues? The data in Mr. Clement's possession could not answer many of Justice Steven's questions, and so the questioning moved on.

Kansas-style bifurcation was discussed briefly, with Mr. Clement claiming that such a solution would be judicial lawmaking and a violation of separation of powers. In response, Justice Kennedy stated his view that the judicial enactment of bifurcation didn't seem like too much judicial lawmaking to him.

At this point, there was a good deal of discussion of the actual text of the USSG themselves. It is possible, and has been argued, that the USSG are not inconsistent with jury factfinding. Discussion focused on the language in 18 U.S.C. 3553(b), which says "the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission . . . ." There was a dispute as to whether "the court" as written in this section could refer to the jury, or whether it necessarily meant the judge (or, and this is my own question, does it make any sense that it would mean one thing the first time it is used, but something else the second?)

Finally, Justice Breyer seemed to "throw a bone" (Jason's words) to the Petitioners by laying out four types of "facts" that would be especially difficult for a jury to find if Blakely were to be applied to the USSG: 1) cases where enhancements involve complicated applications of the guidelines (e.g., grouping); 2) cases where things happen during trial that affect the sentence (e.g., perjury); 3) provisions or enhancements that are too hard for the jury to understand; and, 4) provisions that are too difficult to explain to a jury (not quite certain how this is different, perhaps Jason can clear this up tonight). Mr. Clement agreed, and added that, for example, it would be difficult to explain "relevant conduct" to a jury. Justice Breyer went on to ask whether simply changing the word "shall" in section 3553 to "may" would cure the USSG of any potential problems. Mr. Clement seemed to think that would be a fine idea. However, Justice Breyer saw one potential problem: Under such an advisory system all sentencing decisions would be reviewed for reasonableness, as opposed to some sort of clearly erroneous standard. (I am not certain why this would be the case.) SCOTUS would then become the sentencing commission, reviewing all sentences to determine if they were "reasonable." Justice O'Connor also expressed concern that under an advisory system, there could be no meaningful appellate review.

Finally, throughout the Petitioner's argument, Judge Lynch's opinion in Emmenegger was discussed repeatedly and with much approval. This should come as no surprise, given that case's treatment in the Petitioner's brief, but it is worth noting.

Okay, that is all for now. I'll be back soon with Jason's report on the Respondent's argument. After that, the Petitioner reserved 5 minutes for rebuttal, so we are not done with Mr. Clement just yet.

On your marks...

2004-10-04T12:48:00.000-05:00

Hello readers. The hour of 1:00 is upon us, which means Jason is settled into his seat at the Court and oral argument is about to begin. I am at my desk in New York City, setting up my new iPod and awaiting Jason's call some time after 3:00. As fast as I can type, you'll be getting his report from D.C.

Aside from that, I just wanted to introduce myself. I am not nearly as on top of recent Blakely developments as Jason is, but I hope I know enough not to foul up his report. We'll find out soon enough.

215 posts later...

2004-10-04T06:26:00.000-05:00

this is my 215th post on Blakely, and the day for oral arguments has arrived. News coverage of today's oral argument is available from the New York Times, the Christian Science Monitor, USA Today, Law.com, and just about every other major news outlet.

The plan for later today

I'm pleased to inform the readers of this blog that David Ziff, a third year student at Columbia and a good friend, has agreed to transcribe my thoughts on the oral argument immediately after the last red light comes on.

As you might recall, Dave graciously allowed me to post his notes from the National Association of State Sentencing Commission’s annual conference in New Mexico (Dave's notes are available here), so he's no stranger to the blog.

I plan on calling Dave right after the argument and after he's taken the time to formulate my thoughts into something coherent, he will post my reaction to the argument on the blog. Isn't technology great?

Some observations with only a few hours to go

2004-10-03T19:33:00.000-05:00

I’m now in Washington DC, anxiously awaiting oral argument tomorrow at the US Supreme Court. Appropriately, I’m staying at Jurys in the heart of Dupont Circle.

I’ve been thinking about some of the many lines of questioning that could pop up tomorrow. With two hours scheduled for oral argument, the Court should be able cover a lot of ground.

The two advocates for the respondent will likely face some similar questioning, but Booker and Fanfan each raise their own set of issues. Here’s a quick look at some key differences.

Booker v. Fanfan

Booker’s case is unique, or at least different from Fanfan, in four respects. First, Booker was sentenced before Blakely was decided. Second, Booker’s criminal history score placed him in category VI. Third, Booker was sentenced under 21 USC 821(b)(1)(A), which carries a “statutory” (whatever that means) maximum of life in prison. Because of his criminal history score, Booker faces a 20 year mandatory minimum under the statute. He was sentenced to 360 months in prison based on a judicial finding of 658.5 grams of cocaine base. The jury’s finding was that Booker was responsible for at least 50 grams. Fourth, Booker’s sentence was enhanced for perjuring himself at trial.

Fanfan is distinction from Booker in at least four ways. First, Fanfan’s case raises some relevant conduct issues because Fanfan’s sentence included an enhancement for an attempt to distribute cocaine base, even though the jury only found him guilty of possession with an intent to distribute at least 500 grams of cocaine. Fanfan was sentenced under 21 USC 841(b)(1)(B), which carries a 40 year maximum sentence and a 5 year mandatiry minimum. Second, Fanfan was sentenced after Blakely was decided. Fanfan’s case comes to the Court directly from the trail court, whereas Booker’s case comes from the 7th Circuit Court of Appeals. Third, Fanfan’s criminal history score places him at category I. Finally, Fanfan’s sentence was enhanced for his leadership role in the offense.

Lines of Questioning

The following are some potential topics, or lines of questioning, that the Court may pursue tomorrow. I’ve tried to brainstorm major topics, as well as some semi-obscure ones, leaving out the obvious topics.

- Sentencing juries. Do judges have the authority to convene sentencing juries absent a statutory grant of authority?

- Plea Bargains. Will the Court pickup its vigorous debate over plea bargaining which took place in the Blakely opinion?

- Statistics. What role will sentencing statistics play, if any, in the oral argument?

- A sentencing paradox. If the guidelines are struck down in their entirety, judges will be permitted (until Congress acts, at least) to consider the same factors which they were prohibited from considering under Blakely. How can this paradox be explained in a way that is consistent with the Sixth Amendment?

- Distinguishing Edwards and a few other cases. The respondents will surely be called upon to distinguish several cases from the last 12 years that the government says are inconsistent with the respondent’s position.

- The Sentencing Commission. How much of the government’s brief is a fanciful depiction of the role and function of the Commission? Will the Court press the government on the erosion of the Commission’s independence?

- Harris v. US. Is it still good law? How are facts found by a judge that lead to a mandatory minimum different from facts which simply increase a defendant’s sentence?

- Retroactivity. Is Blakely retroactive?

- Waiver. Does a simple admission by a defendant constitute a waiver of Blakely rights?

What's the spread?

2004-10-03T09:41:00.000-05:00

This weekend saw a few notable upsets in the world of college football. Ohio State's bid to win the Big Ten took a step back after losing to Northwestern (which breaks my heart). West Virginia's national championship hopes were dashed, as were Fresno State's hopes.

These upsets got me thinking, who is the underdog in tomorrow's argument?

Certainly, a case can be made for the government as the underdog. If the Court said what it means and means what it said in Blakely, the government is in big trouble. The "law" certainly doesn't favor the government, Witte, Dunnigan, Edwards, etc. notwithstanding. At the same time, the practical impact of a ruling for the respondents may make one of the Justices in the majority squeamish, giving the government the edge.

On the other hand, when it comes to the oral argument itself, the respondents are the underdog. Acting SG Paul D. Clement certainly has an experience edge over the very capable respondent's lawyers when it comes to arguing in front of the Supreme Court. So, the government clearly is playing "at home" in this one.

According to the poll results on this page, the guidelines are headed for valhalah or purgatory, depending on where you sit.

All told, I think the line in this one is respondents -1 1/2 Justices.

And one more question while we're on the topic of underdogs and Blakely. How did Jamal Lewis get such a great deal?

(Note: The Blakely blog does not encourage or condone gambling on cases before the Supreme Court, or any court. This post is for novelty purposes only, much like every other post.)

Notable Pre-argument Articles

2004-10-03T09:09:00.000-05:00

A flurry of opening term articles are out there which summarize some of the cases the Court has agreed to hear this term. Below, you'll find a few articles which discuss Booker and Fanfan in moderate to high detail.

Charles Lane of the Washington Post has an article entitled, "Supreme Court to Consider Federal Sentencing Guidelines." Although close Blakely followers won't learn anything new from this article, it's a good but brief summary of the genesis of the current controversy.

The New York Lawyer has a story on the New York angle of tomorrow's argument. The article discusses former S.D.N.Y. Judge Martin's brief, and the brief filed by the New York Council of Defense Lawyers.

If you don't want to read, you can listen. NPR has a preview of the upcoming term available online. The guests are Kathleen Sullivan, law professor and former dean at Stanford Law School and John Yoo, law professor, University of California at Berkeley Law School.

The Waiver Brief

2004-09-30T02:00:00.000-05:00

The Office of the Federal Public Defender of the Northern District of Texas submitted a brief on behalf of the respondents. Interestingly, the brief does not address either of the two question before the Court in Booker and Fanfan. Instead, the brief addresses the situation in which a defendant makes a simple admission of fact, and under what conditions, if any, such an admission constitutes a waiver of constitutional rights. The brief argues that simple admissions are not sufficient to waive a defendant’s constitutional rights.

Here is the brief’s conclusion which summarizes the argument quite well:

Blakely, citing Apprendi, discussing Almendarez- Torres does not support the proposition that a defendant can waive constitutional rights by simply admitting facts, which are not facts related to a prior conviction, that increase the relevant statutory maximum sentence. Any such statement is contrary to this Court’s precedent. The defendant, however, can admit facts in conjunction with a valid waiver of enumerated rights that will allow the judge to increase the relevant statutory maximum sentence. As part of this procedure, the sentencing court must fully inform the defendant of the rights being waived and the results of such a waiver. Only then will a defendant knowingly and voluntarily have waived constitutional and statutory rights.15 Cf. Boykin, 395 U.S. at 242-244; Johnson, 304 U.S. at 464.

The bottom line is that the application of Blakely to the Federal Sentencing Guidelines, when combined with admitted facts and valid waivers, will result in defendants actually receiving the guideline range that they bargained for: this would be real “truth in sentencing.”16

I’m going to defer any commentary on this topic pending the oral argument in Booker and Fanfan. Since this question isn’t before the Court, and the petitioners aren’t raising the issue, unless the Justices ask about it, I’m going to put this topic on hold.

I will point out, however, that at the end of a lengthy footnote (FN 14) the amici make an argument which bears on Blakely’s impact on plea agreements. They argue that, “In a defense attorney’s eyes, the best result of applying Blakely to the Federal Sentencing Guidelines will be reducing a probation officer’s impact in determining the offense-level and allowing the prosecuting and defense attorneys to come to an agreement as to a defendant’s 'enhancements' and relevant statutory maximum sentence. When this occurs, a defendant will truly know what offense level he or she is bargaining for and then we can all truthfully say that the defendant has knowingly and voluntarily waived constitutional rights.” This argument, if true, would seem to foster more plea agreements over the status quo, or the status quo ex ante, you know what I mean.

The NYCDL Brief

2004-09-29T12:16:00.000-05:00

This very brief post will discuss the amicus brief submitted by The New York Council of Defense Lawyers (“NYCDL”). The New York Council of Defense Lawyers is a not-for-profit professional association of approximately 200 lawyers (many of whom are former federal prosecutors) whose principal area of practice is the defense of criminal cases in the federal courts of New York.

The NYCDL brief is relatively short (23 pages) compared to the other briefs submitted in Booker and Fanfan. The brief only addresses the first question and agrees with the government’s severance position on the second question.

The crux of the brief attacks what the NYCDL identifies as three faulty premises, which are:

(1) because the Guidelines are regulations promulgated by the Sentencing Commission, rather than statutes enacted by Congress, the Sixth Amendment analysis in Blakely does not apply; (2) there are constitutionally significant differences between the Washington scheme and the Guidelines; and (3) the Guidelines do nothing more than what judges historically did under indeterminate sentencing schemes and therefore, because indeterminate schemes are constitutional, the Guidelines are constitutional.

I’m not going to discuss the substance of the brief because I think it overlaps largely with others briefs in this case. I will say that I’m surprised that this brief didn’t focus more on cases from New York. After all, the NYCDL claims that they “offer[] the Court the perspective of very experienced practitioners who regularly handle some of the most complex and significant criminal cases in the federal courts.” I’m particularly surprised that the brief fails to engage Judge Lynch’s opinion in Emmenegger (SDNY).

Blog Housekeeping

2004-09-29T00:45:00.000-05:00

As you may have noticed, Blogger has now enabled readers to email posts by clicking on the little mail icon underneath each post. It works well and is an easy way to share blog posts with your friends.

I've also enable "anonymous" commentary for each post. Some readers would not rather give their names, and now they don't have to. Should you write to me, I won't use your name unless you give me permission. That's been my policy all along.

The NAFD post, which should have been up a few hours ago, is now up. My commentary on the NYCDL brief is still on track for tomorrow.

The cases and filings sidebar is due for an update. That should be coming soon.

The Bravenet poll, which asks how you think the Booker and Fanfan cases will come out, is nearing 200 votes. The results may surprise you. The poll is located on the right-hand sidebar, below the counter.

The NAFD Brief and Plea Bargains

2004-09-29T00:39:00.000-05:00

Today’s focus is on the brief submitted by the National Association of Federal Defenders. Before you even turn the first page of the brief, you’ll notice that the NAFD didn’t team up with the NACDL to write a brief (or vice-versa) as they did when they filed a brief in July at the certiorari stage. Interesting. (My discussion of the NACDL brief can be found here).

The NAFD brief makes one overarching argument, which is that the principles of Blakely assimilate easily into practice under the federal guidelines. This brief is very “practical,” meaning that it uses a number of cases and statistics to present a “real-world” vision of a Blakely-ized sentencing system, and I think it paints a convincing picture. In the words of the NAFD, “Real-world experience dispels the myths imagined by those who choose to avoid Blakely and its application in federal sentencings.” While describing what the NAFD considers to be an ideal post-Blakely world, the NAFD asserts that Blakely would only affect 3% of guidelines cases. The 3% represent the cases that go to trial. Only those cases, says the NAFD, would be affected significantly by Blakely (but in a way that judges and juries can handle).

The Blakely majority and the dissenters sparred over Blakely’s (and even Apprendi’s) impact on plea bargaining. A centerpiece of that debate between the Justices was a 2001 article written by Stephanos Bibas entitled, “Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas.” (110 Yale L. J. 1097). In this post, I discuss some of the assumptions and arguments from the NAFD brief about plea bargaining in a Blakely-ized world.

It Will Only Be 3%, Really

If the NAFD is correct, that Blakely will only affect 3% of all federal cases, the additional burdens imposed by a Blakely-zied justice system should be minimal, or at least bearable. The NAFD appears to rely on this figure in an attempt to make that argument. But is that really true? The NAFD tries to sell that argument, but I’m not sure I’m buying.

First of all, the 3% figure is a reflection of the current rate at which defendants choose to go to trial. It doesn’t, and can’t account for a Blakely-ized world. The NAFD maintains, however, citing statistics before and after Apprendi, that the number is likely to remain at 3% or go lower, if the statistics from 1999-2002 are a trend. “Despite Apprendi, which required new allegations and proof in federal prosecutions, the number and percentage of criminal trials have decreased, not increased.”

It seems to me that Blakely, if applied in the manner which the NAFD thinks is best, will do a lot more to shake-up the criminal law compared to Apprendi. Although I don’t have statistics to support this assertion, I’ll make it anyways. I think that a greater number of cases have Blakely problems compared to Apprendi problems. In addition to Blakely’s broader net, it appears as though Blakely is a more potent weapon. I think Justice Scalia recognizes that when he wrote that, “Every new element that a prosecutor can threaten to charge is also an element that a defendant can threaten to contest at trial and make the prosecutor prove beyond a reasonable doubt.” Thus far, much of the “chaos,” as some would say, in the federal system emanates from defendants who are getting comparatively light sentences as a result of Blakely. (Tractor man, I’m looking in your direction.) Apprendi certainly cut short many sentences, but it didn’t unravel the guidelines. Blakely might.

NAFD argues (p. 17-18) that more specific indictments are likely to encourage compromise, resulting in pleas. They contend that defendants will gladly take a plea which doesn’t leave their sentence to chance, or a non-lawyer probation officer, to be more specific. I’m not sure if that’s true, either. What if the government’s evidence for the bulk of the enhancements is weak? It doesn’t matter what the non-lawyer probation officer recommends, the prosecutor would still have to prove the enhancements to the jury. What about white collar offenses? The base level offense for those crimes are very low, leaving the amount of loss as the decisive factor in ratcheting up a sentence. Wouldn’t it make sense to go to trial in those cases? Of course, the government will try to slap you with perjury and obstruction of justice if you do go to trial and lose, but I can imagine cases where going to trial may still net a defendant a lower sentence, but only under Blakely, not Apprendi.

I also wonder if there are other variables which may be pressing the plea numbers upwards, despite Apprendi. Maybe the change in administration in 2000?

One interesting question to ponder is, what will happen to plea rates if the system is Blakely-ized and the PROTECT Act undercut? If judges’ authority to depart downward is rejuvenated, how will that, in combination with Blakely affect plea rates?

Finally, assuming that the NAFD is right about all of its claims, I ask, is that a good thing? Several commentators have criticized the current guideline regime for shifting power to the prosecutor, which they say has resulted in fewer and fewer trials. I think that a vast majority of criminal defense lawyers consider that to be a bad thing. The rules of the game, as they currently exist, reward pleas and punish (severely) those that choose to exercise their constitutional rights to a trial. If the rate of trials remains at 3%, or lower, four years after Blakely, will the defense bar have won this battle? Perhaps the average length of sentences will drop, and that will be the defense bar’s symbol of victory.

Other Arguments of Note

Although I focused on plea bargains in this post, the NAFD makes a number of other valuable points. Here’s a very quick preview:

- The Federal Rules of Criminal Procedure implement the requirements of the Fifth Amendment’s indictment clause in manner that could incorporate Blakely’s principles. (page 7).

- The Department of Justice Manual recognizes that proper allegations in an indictment are not limited to only the statutory elements of an offense. (page 8).

- Juries are already doing what many say is impractical, deciding guilt or innocence and then deciding sentencing factors. See United States v. Carlos Cardenas, et al., Case No. 03-20450-CR-GOLD(s) (S.D. Fla.), available at http://pacer.flsd.uscourts.gov (Local Option Images). (page 24).

Finally, I’d like to point out that on page 27 of the brief the NAFD argues that there is nothing in the text of the SRA which requires judicial factfinding or the use of a specific burden of proof when applying the guidelines. My colleague at Columbia Phil Fortino made this argument a few months ago in an essay, which is about to go to the printer, entitled, “A Post-Blakely Era or Post-Blakely Error?”

More waiting in Colorado and Duke Law Professor Neil Siegel's thoughts on Blakely

2004-09-28T20:56:00.000-05:00

Colorado U.S. District Judge Daniel Sparr recently decided that he would postpone sentencing a defendant until Dec. 9th. The Rocky Mountain News has a story.

Duke Law Professor Neil Siegel has offered some thoughts on Blakely. Prof. Siegel is a true Blakely insider; he was clerking for Justice Ginsburg just a few months ago. Here's a look at what he has to say:

"Although it was overshadowed by more high-profile cases, Blakely may end up being last year's most momentous decision in terms of concrete human consequences."

You can read more here.

Berman v. Bibas - On Online Debate

2004-09-28T19:48:00.000-05:00

Debates are officially "in." This Thursday, George Bush will debate John Kerry at the University of Miami. Both sides claim that their opponents have never lost a debate. And as if that hyperbole wasn't sufficient, the Bush people are claiming that John Kerry is the best debater since Cicero. (If that isn't funny enough, I highly recommend this article entitled, "Late-Night Jokes About Bush, Kerry and the 2004 Presidential Debates.") So, this sets up a guaranteed fall for one of the candidates. The Vegas bookmakers must be utterly bored to death by that prospect.

If Presidential debates are not your thing, maybe a Blakely debate is more appealing. The Legal Affairs Debate Club has launched an online debate between Professors Doug Berman and Stephanos Bibas. The topic: Blakely, of course. More precisely, the question is, "Can the Court clean up its Blakely mess?" For those of you who don't know, Doug Berman is the best debater since John Kerry. Same goes for Prof. Bibas.

On a related note, college students across the country are currently debating a proposition which asks whether our nation's criminal law needs reform. Several students and coaches have written to me, asking how they could use the Blakely ruling as an argument in favor of reform (and how to respond to it). Professors Bibas and Berman's exchange should be a useful resource for college debaters looking for an angle.

All this debate talk has stirred a bit of nostalgia for me. I debated for 4 years in high school and 4 years in college. After finishing my degree at the University of Michigan, I coached college debate at Michigan for 3 years. I nearly made it my career. Instead, I've made this blog my career. You win some, you lose some.

Excellent Resources from the Vera Institute of Justice

2004-09-28T19:41:00.000-05:00

It has come to my attention that I failed to report the publication of two very useful reports from the Vera Institute of Justice.

In August, the Vera Institute published a report entitled, "Aggravated Sentencing: Blakely v. Washington — Practical Implications for State Sentencing Systems." And this month, they published " Aggravated Sentencing: Blakely v. Washington: Legal Considerations for State Sentencing Systems." Both reports are very useful for anyone grappling with Blakely's implications for state sentencing regimes.

I've also added the Vera Institute as a link under the "Other Useful Links" section of the blog.

The WLF Brief - Trying to Unlock Blakely's Potential

2004-09-27T13:06:00.000-05:00

Last month, the Washington Legal Foundation hosted a useful Blakely conference in Washington, DC (details here). Today, I’m offering some thoughts on the WLF’s amicus brief, which focuses on the policy side of the Blakely dispute.

The first part of the WLF brief contends that the guidelines are invalid under Blakely, offering some arguments for why the guidelines create “legal rights,” which the WLF says means a jury right.

The second part of the brief is the policy analysis, at times making normative arguments for reform of the guidelines. Here, the WLF appears to invite the Court to force Congress’s hand into debating sentencing reform. On page 22, the amici state, “the partial or complete invalidation of the current federal sentencing scheme on Blakely grounds would give Congress the broader opportunity to address the many fundamental flaws and unfairness in the harsh federal Guidelines.”

What follows is a brief discussion of both sections of the WLF brief.

The Guidelines Create Legal Rights

On page 7, the WLF begins the argument that the guidelines create legal rights which the 6th Amendment protects. Seizing on language from the Blakely decision which indicates that determinate sentencing schemes create such a right, the WLF argues that the guidelines both cabin judicial discretion and simultaneously create legal rights to jury deliberation.

To the “legal rights” claim, on page 14, the WLF argues that the current construction of the guidelines lacks “structural democratic constraints.” Tying together some academic work that explores the democratic function of the jury and the Apprendi ruling, the amici argue that democratic values favor jury determination of the facts necessary for punishment. (Doug Berman has offered his thoughts, as well as those of Professor Bill Stuntz, on democracy and Blakely.)

A Ruling for the Respondents Would Unlock Sentencing Reform

What distinguishes the WLF brief is that it does not address the severability question presented in Blakely. Instead, they chose to focus on the possibilities for sentencing reform which could blossom from a ruling for the respondents. The WLF’s bottom line is that the Blakely decision “present[s] an opportunity to replace the harsh and irrational Guidelines with more humane and even-handed sentencing policies and procedures.”

One possibility is that Congress will adopt a sentencing scheme like the one found in Kansas, which the WLF appears to favor. On page 21, the WLF says that the Kansas scheme could “readily be adapted for the federal context.” The authors point out that if the federal government implemented a system like the one in Kansas, it would greatly simplify the federal sentencing process. While many consider simplifying the federal sentencing system a plus, many do not – and of the people in the latter category, many of them are in Congress. The Kansas system may be easy to administer, but ease of administration is a double-edged sword when it comes to federal reform efforts.

I’ve discussed similar reform options and the potential reform in a forthcoming publication of my own which you can access here. My essay is more of a realpolitik look at Blakely’s potential for reform but it fits nicely with the second half of the WLF brief.

The NACDL's Powerful Brief

2004-09-26T12:18:00.000-05:00

The first half of the National Association of Criminal Defense Lawyers brief, like the FAMM brief, is dedicated to showing that the guidelines are inconsistent with Blakely. The NACDL covers some similar terrain, but adds some depth to certain arguments. I’ve decided to focus on those particular arguments. What truly distinguishes the NACDL brief, however, is the second half of the brief which is dedicated to the severance question. The NACDL maintains that federal sentencing practices can be adapted to the requirements of the 6th Amendment while maintaining the guidelines’ binding effect. NACDL argues that complete severance would exacerbate sentencing disparities, and therefore favors a bifurcated sentencing procedure where juries would hear sentencing enhancements.

The Guidelines Must Fall

Like all of the respondent’s briefs, the NACDL argues that Blakely invalidates the federal guidelines. Under the heading of this general argument, the brief asserts that any distinction between the federal guidelines and the Washington guidelines which relies on the source of the guidelines is misplaced. That’s because the Sixth Amendment protects against encroachments on the right to a jury trial by any branch of government.

The Commission is Not Independent

The strongest portion of this brief, in my opinion, is the evidence that is marshaled by the authors to demonstrate that the federal guidelines are not the product of an independent commission within the Judicial branch, as envisioned by the SRA. It begins when the NACDL depicts the PROTECT Act as a broad Congressional swipe at judicial sentencing discretion. On page 8 of the brief, citing the PROTECT Act, the NACDL contends that, “Congress exercises direct control over the primary discretionary authority retained by sentencing judges under the Guidelines – namely, the power to depart from an otherwise mandatory Guidelines range.” The authors assert that the across the board reductions in departures by the PROTECT Act undermine “a cornerstone of the SRA.” This is a clever attempt by the NACDL to demonstrate how the PROTECT Act infects all guideline decisions (including reporting, for example), which in turn allows the amici to argue that the entire guidelines regime is under Congress’s thumb.

On page 12, the NACDL delves into a detailed analysis of how Congress has increasingly dictated the content of the guidelines. The amici point out that,

“Since Mistretta was argued in October 1988, Congress has enacted over sixty laws that either directly dictate the content of particular Guidelines or mandate that the Commission enact specified revisions…Congress has issued fifty-five directives that directly alter the Guidelines… On twelve additional occasions, Congress directed the Commission to enhance the sentencing ranges for certain types of conduct, leaving only the precise level of enhancement to the Commission… Eleven additional provisions, while not expressly requiring amendments, have nevertheless “requested” or “recommended” changes… Furthermore, Congress has specifically rejected the Commission’s proposals for amendments to the Guidelines that would have lowered sentences for money-laundering offenses and offenses involving crack cocaine.”

All of these points are documented in an Appendix to the brief, which is mighty long and persuasive. In the context of the sentencing disparity debate, which the government goes to great lengths to raise in their brief, the NACDL’s crack-cocaine disparity argument may carry some weight with the Court. Not only is the crack-cocaine disparity a specific example of the breakdown of the Commission’s interaction with Congress, the crack-cocaine disparity has been largely lambasted by academics and judges.

A particular effort is made in this brief to point out how little say judges have over the development of the guidelines. The amici argue that none of the Commission’s rules, or governing statutes, preserve a special role for judges’ voices in the development of guidelines. The Commission frequently responds to “congressional directives,” “addressing Commission interests,” and “resolving circuit conflicts,” according to the NACDL. “Nowhere does it cite a direct response to judicial comment or opinion as a reason for a change to the Guidelines.” Citing a statistic that may say it all, according to the NACDL, in the 650 time the guidelines have been amended since 1988, only 3 or 4 times were the guidelines amended in response to a judge’s comments that wasn’t a member of the Commission.

Mandatory Minimums

Much to my surprise, the NACDL brief discusses the role of mandatory minimum sentences for a couple of pages in their brief. I guess I’m not surprised that the NACDL chose to discuss mandatory minimums; I’m surprised that FAMM didn’t do the same thing. In any event, the NACDL contends, using Justice Breyer’s words from a 1998 speech, that mandatory minimum sentences prevent the commission “from carrying out its basic, congressionally mandated task: the development, in part through research, of a rational, coherent set of punishments.” Recognizing that these cases are not a vehicle for challenging the constitutionality of mandatory minimum sentences, the authors make a more modest point about mandatory minimums which is that their existence “further demonstrates that sentencing under the Guidelines operates pursuant to a legislative scheme, not a judicial one.”

Severance

The NACDL takes a hard line on the government’s severance position. The NACDL claims that rendering the guidelines advisory only in cases implicating Blakely is “profoundly illogical as it, in fact, relies on a selective severing of portions of the SRA that Congress could never have imagined, and it furthermore flies in the face of Congress’s determination to promulgate a binding guidelines scheme that would rationalize federal sentencing.” To support this view the NACDL cites the Senate Judiciary Committee’s rejection of an advisory guidelines system in the debates leading up to the SRA. They also cite Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 767-68 (1996) (plurality opinion) to support juries over advisory guidelines (“Congress would probably have thought that [the use of juries to determine sentencing facts] was an effective (though, perhaps, not the most effective) means of pursuing its objective.”).

The NACDL prefers a bifurcated sentencing hearing, in which prosecutors would ask juries to deliberate on relevant facts which would then be used to enhance a defendant’s sentence. They point out that it would still be the judge that determines the appropriate sentence within the guidelines range authorized by the jury’s findings of fact.

The practicalities of taking enhancement facts to the jury are briefly discussed. They states that, “In our system, juries are trusted to resolve matters of considerable complexity, such as complicated matters involving statistical evidence and/or conflicting expert testimony.” In a footnote to that statement, the NACDL uses the example of anti-trust cases, where juries are asked to deliberate on a number of complicated questions. In the criminal context, amici point out that in a number of states criminal justice systems, juries determine the actual sentence.

Has the 3rd Circuit also joined the waiting game?

2004-09-26T10:35:00.000-05:00

A few days ago, in a post entitled Waiting Game, I discussed two opinions from the 7th and 9th Circuit which have postponed sentencing opinions until the resolution of Booker and Fanfan. As you may know, the 7th and 9th Circuits have issued (opposing) rulings on Blakely's application to the federal guidelines. The 3rd Circuit, however, is one of a few circuits that has not issued a Blakely ruling.

Peter Goldberger has shed some light on the state of Blakely in the 3rd Circuit in the comments section of the Waiting Game post, for which I am grateful. Below, you'll find the text of his post in the comments section:

It appears that the Third Circuit is taking the same approach. I have a case, argued back on May 27, which presents the question whether an upward *departure* violates Apprendi as applied in Ring and Blakely, because 18 USC 3553(b) does not permit a sentence above the top of the guideline range unless "the court finds" additional facts to warrant a departure. (There are also contested Chapter 2 and Chapter 3 *adjustments* at issue.) The parties filed supplemental memos on this in July. On Sept. 17 we received an order from the merits panel that the case is being held under advisement pending the decision in Booker/Fanfan. I have sent the exact info and wording to Jason, in case he cares to post it.-- Peter Goldberger, Ardmore, PA

Looking at the FAMM Brief

2004-09-24T23:01:00.000-05:00

According to the Families Against Mandatory Minimums web site, FAMM “is a national nonprofit organization founded in 1991 to challenge inflexible and excessive penalties required by mandatory sentencing laws. FAMM promotes sentencing policies that give judges the discretion to distinguish between defendants and sentence them according to their role in the offense, seriousness of the offense and potential for rehabilitation.” FAMM’s primary mission, as the name of the organization implies, is the repeal of mandatory minimum sentences. The amicus brief filed by FAMM in Booker and Fanfan, however, does not (and cannot) challenge the legality of mandatory minimum sentences. In fact, if the respondents prevail, it is possible that Congress will respond by enacting a host of mandatory minimum sentences, FAMM’s worst nightmare. (In fact, Doug Berman has been tracking the possible genesis of the mandatory minimum backlash here, which is brewing). Although the FAMM brief offers some valuable insights, the legal arguments garnered in their brief will not dislodge mandatory minimum sentences.

The FAMM brief makes two primary arguments. First, they claim that the federal guidelines are indistinguishable from the Washington guidelines. In response to the government, FAMM attacks the argument that the USSC’s placement in the Judiciary saves the federal guidelines. FAMM asserts that the Commission’s pronouncements are legislative in character and therefore indistinguishable from the Washington guidelines. Second, the brief contends that the government’s severability analysis is flawed because it would “have [the] Court endorse a sentencing system that Congress never intended.” In its place, FAMM recommends the “use non-binding guidelines promulgated by judges channeling their actual experience and expertise into advisory sentencing standards.”

The brief also tackles a few other issues that don’t fall neatly into the first or second primary arguments in the brief. First, FAMM argues that although the government’s contention that a ruling for the respondents would undermine Mistretta “conflate[s] two distinct concepts,” at the same time, FAMM argues “15 years of experience have brought into question certain assumptions made in Mistretta.” Second, FAMM “calls out” the Judges amicus brief, exposing what FAMM considers (as do others, see DAB’s post here) to be an unjustifiably rosy depiction of departure authority under the guidelines.

Making a Play for Overturning Harris and McMillan

As I explained in the introductory paragraph to this post, FAMM’s ability to achieve its stated objective cannot be addressed by Booker and Fanfan. Although these cases cannot compel the repeal of mandatory minimum sentences, the Court’s ruling in Booker and Fanfan could undercut some precedents that are related to mandatory minimum sentences. In a footnote on page 9, FAMM addresses Harris and McMillan, stating that “FAMM believes that mandatory minimum sentences are properly subject to constitutional scrutiny, and that Harris v. United States, 536 U.S. 545 (2002), and McMillan were wrongly decided.” FAMM further indicates in the footnote that “that the constitutionality of mandatory minimum sentences is not a question presented in the cases now before the Court.”

Although it is true that judicial factfinding which triggers a mandatory minimum is not before the Court, I can’t help but think that FAMM should have briefed a few arguments against Harris and McMillan anyhow. Sure, sure, anything the Court says about Harris would be dicta, but I get the feeling that the Court may want to clear as much of the air on sentencing as possible. Both Booker and Fanfan were charged with violations of the primary federal drug statute (18 USC § 841) which is chock-full of mandatory minimums, so a discussion of Harris wouldn’t be too far off base.

An Independent Commission Placed In the Judiciary?

FAMM (as well as others) forcefully argue that the Sentencing Commission’s independence, as envisioned in the SRA, is a thing of the past. FAMM cites as evidence of the Commission’s eroded independence the 50 times Congress has directed the Commission to amend the Guidelines in specified ways; the PROTECT Act; and a host of academic commentary to the same effect. Frankly, this is powerful stuff. I’ll reserve further commentary on this point until tomorrow, however, because the NACDL brief addresses this argument in greater detail. This is an important argument in the FAMM brief, and it’s made stronger by other amici. The Commission’s lack of independence not only serves to attack the petitioner’s attempt to distinguish the two guidelines systems, it also serves to undermine other arguments in the petitioner’s brief, as discussed in the next section on Mistretta.

Mistretta Two-step

In response to the government’s claim that a ruling for the respondents would require the Court to overrule Mistretta (which surely would break Justice Scalia’s heart), FAMM distinguishes Mistretta and Blakely by pointing out that the Sixth Amendment was not raised in Mistretta. That’s true. In the next subsection, however, FAMM argues that 15 years of experience has brought into question some of the assumptions in the Mistretta opinion. One of those assumptions is that the Commission would in fact be independent, which FAMM contends is no longer the case. Additionally, the brief asserts that the declining role of the Judiciary in shaping the guidelines calls into question one of the assumptions in Mistretta, that the Commission would maintain a distinctively judicial flavor. In the end, it’s not clear whether FAMM is saying that the reasoning that went into Mistretta has been undermined, but not fatally, or whether FAMM is saying that Mistretta should fall, but not for the government’s reasons.

Since FAMM advocates revamped, non-binding guidelines as a remedy in this case, I’m guessing that they favor upholding Mistretta. Perhaps FAMM couldn’t resist pointing out the ways in which the Commission and Congress have betrayed the intent of the SRA. This is more than sour grapes, however. A common theme throughout all of the respondents’ briefs, and a great deal of commentary (especially the July 13th Senate hearing), is that the original purpose and vision of the SRA is sound but that the current system has run astray.

Severance Talk

FAMM contends that the government’s claim that the guidelines “must rise or fall as a whole” is misplaced. The primary problem with that analysis according to FAMM is that it would result in a sentencing regime never contemplated by Congress. In fact, it would result in one that looks a lot like the system Congress rejected in favor of the SRA. FAMM’s argument may confuse the proper severance question. The government framed the severance question as one where “‘[t]he inquiry into whether a statute is severable is essentially an inquiry into legislative intent.’” U.S. Br. 44 (quoting Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999)). FAMM doesn’t dispute that claim, instead FAMM argues that the government fails to meet the test. FAMM seems to be saying that the question is, did Congress intend to create a completely discretionary sentencing system? They say the answer is “no,” therefore the Court should choose non-binding guidelines (an option that Congress actually considered in the debates leading up to the passage of the SRA, as I’ll discuss tomorrow).

Interestingly, FAMM’s bottom-line position on the severance question is one that the Court can’t grant. FAMM says that the better approach is a non-binding guideline system which would be part of a new sentencing regime. FAMM acknowledges that it needs Congress for that to happen. My question is, if Congress is necessary for FAMM’s alternative, why isn’t scrapping the whole system more conducive to a new sentencing regime?

Waiting Game

2004-09-23T09:19:00.000-05:00

The Ninth and Seventh Circuits has recently issued opinions where the court has deferred a Blakely issue until the Court rules on Booker and Fanfan.

The Ninth Circuit stated that "we believe it would be imprudent to decide this issue [the Blakely appeal] now." US v. Sompong Khamsomphou, 2004 U.S. App. LEXIS 18959 (Nos. 03-30341 and 03-30342 ) (9th Cir., Sept. 7, 2004) (unpublished).

The Seventh Circuit in US v. Malik, also deferred a Blakely appeal. Judge Easterbook writes:

Little could be gained by resentencing Malik immediately, while legal uncertainty prevails and there is a substantial risk that whatever approach the district court adopts would be disapproved within a few months by the Supreme Court. The district court should defer resentencing Malik until after the Supreme Court has decided Booker and then proceed as appropriate in light of that decision. VACATED AND REMANDED.

Morning News

2004-09-23T08:47:00.000-05:00

Marc Mauer, the assistant director of The Sentencing Project in Washington and the author of Race to Incarcerate, published an article entitled, "Outside View: Racing to incarcerate." The article discusses Blakely in the context of prison and sentencing reform. The article focuses on mandatory minimums towards the end.

"Blakely challenges can’t be waived," is the title of a Wisconsin Law Journal article. That's the rule in the 7th Circuit, at least. The article states, "The Supreme Court decision in Blakely v. Washington represented such a sea change in sentencing law that no defendant can be deemed to have waived a challenge to his sentence on Blakely grounds, the Seventh Circuit held on Sept. 14." The case discussed in the article is US v. Bette J. Pree, No. 03-1516.

From Arizona, a state grappling with some Blakely issues, there is a story entitled, "Impact of sentencing ruling seen in shooting case." Here's what is going on in Arizona, according to the article:

The state Court of Appeals on Tuesday issued an opinion explaining an earlier order that said Maricopa County prosecutors couldn't back out of a plea agreement with a woman in a shooting case. She wouldn't waive her right to jury findings otherwise needed before a judge could impose an aggravated sentence for a shooting.

However, the Court of Appeals three-judge panel also said the trial court can impanel a jury to consider whether facts existed that would allow the judge to impose an aggravated sentence.

Former Louisiana Gov. Edwin Edwards and his son Stephen, both convicted for racketeering and fraud involving the awarding of riverboat casino licenses, failed to persuade US District Judge Ralph Tyson that their sentences should be invalidated by Blakely. You can read more about the case here.

A Simple Plan

2004-09-22T13:56:00.000-05:00

Fans of the movie “A Simple Plan” will note the irony of this post once you see what my simple plan is for the next few weeks. Hopefully, I’ll have better luck than the characters in the movie with my scheme.

The next two weeks will be busy ones for all those following Booker and Fanfan. Not only were an avalanche of briefs filed in the last 24 hours, but the oral argument is just around the corner on October 4th. In order to properly prepare for the oral argument, I’ve created a briefing schedule of sorts, which will offer my thoughts on the respondent’s briefs.

Each day, starting on Saturday the 25th, I will post my thoughts on a specific brief. If you’ve been reading this blog somewhat faithfully (and I thank you for that), you know that I did something similar for the petitioner’s amicus briefs. I didn’t discuss the government’s main brief in any of those posts by design. On October 1st, I will discuss the government’s main brief and on Oct. 2, I will discuss the two respondent’s briefs. On the 3rd, the day before the argument, I hope to put together some final comments and ideas, a kind of pre-game show, if you will.

As for the oral argument itself, I have been fortunate enough to secure a ticket to the argument, which means I won’t have to brave the public admission line. Although I won’t have direct access to a computer, one of my fellow law students at Columbia has agreed to take my phone call transcribe my thoughts on the argument on the blog.

A Simple Plan:

Sept 25th - Discussion of the FAMM Brief
Sept 26th - Discussion of the NACDL Brief
Sept. 27th - Discussion of the WLF Brief
Sept. 28th - Discussion of the NAFD Brief
Sept. 29th - Discussion of the NYCDL Brief
Sept 30th - Discussion of the Waiver Brief
Oct. 1st - Discussion of the Petitioner’s Main Brief
Oct. 2nd - Discussion of the Respondent’s Briefs
Oct. 3rd - Overview of All Briefs; Comments for Oral Argument
Oct. 4th - Commentary on Oral Argument

Noteworthy News

2004-09-22T13:49:00.000-05:00

There have been several interesting news stories the last few days on sentencing, Blakely and the Supreme Court. If you missed them, this post offers a brief round-up of several stories.

Before I get to the news stories, I should mention that the biggest news of the last few days was the filing of the respondent’s briefs. The respondent’s briefs and the amici can be accessed here, courtesy of Sentencing Law and Policy.

Law.com has published a few stories which focus on the Supreme Court, but not on Blakely (how dare they!). Tony Mauro’s piece is entitled, "Supreme Tipping PointSome liberals and conservatives say a new high court appointment could alter law in several areas. Will it?” The article makes the point that gridlock in the Senate and the Court’s general moderation in the last several years means that the next appointment won’t result in too many changes. Sure. Tell that to James Comey and Paul Clement. The article discusses a number of areas which may be affected by a new Justice. Among the areas of law discussed (affirmative action, abortion, gay rights federalism, school vouchers, capital punishment) you won’t find a Blakely discussion, presumably because Blakely will be resolved by the time there is a vacancy on the Court.

Another Law.com article entitled, "Scalia Bemoans Supreme Court's Increasingly Political Role,” has to have some people asking, what? The article reports that, “Justice Antonin Scalia on Monday bemoaned the Supreme Court's willingness to decide political questions such as the death penalty and abortion and predicted as a result a tough confirmation fight for the next nominee.” Apparently, Justice Scalia did not bemoan his opinion in Blakely, the comments of Senator Sessions on July 13th (“What was Justice Sclaia thinking when he wrote this opinion?”) notwithstanding.

The Vera Institute has a report out entitled “Aggravated Sentencing: Blakely v. Washington – Legal Considerations for State Sentencing Systems.” Those following Blakely in the states will want to read this report.

The Wall Street Journal published two excellent articles on sentencing and Blakely. On Sept. 20th, Gary Fields wrote and article entitled, “Federal Sentencing Changes Could Strain Probation System.” On the same day, Gary Fields and Laurie Cohen wrote, "Reasonable Doubts: How Unproven Allegations Can Lengthen Time in Prison; Stories of Five Convicts Show That Charges in Dispute Often Add to Sentences; Supreme Court Takes Up Rules.” Both articles are “must reads.”

Maine appears to be handling some of its lingering Blakely questions. Although Maine altered its sentencing guidelines a few years ago, the pre-reform guidelines may suffer from Blakely defects. The Supreme Court of Maine may offer some guidance soon, according to the Kennebunkport Journal.

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

2004-09-18T10:07:00.000-05:00

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

Blakely News

2004-09-17T10:48:00.000-05:00

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.

News from the California Courts

2004-09-16T13:22:00.000-05:00

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.

Cases and News

2004-09-15T09:19:00.000-05:00

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

Adding Fuel to the Blakely Fire

2004-09-14T10:12:00.000-05:00

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 News

2004-09-13T01:04:00.000-05:00

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.

8th Circuit News

2004-09-12T21:02:00.000-05:00

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

2004-09-12T11:30:00.000-05:00

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

2004-09-12T00:11:00.000-05:00

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).

The Constitution Project To Host Blakely Discussion

2004-09-11T09:02:00.000-05:00

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.

Update on Frank Quattrone

2004-09-10T09:27:00.000-05:00

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.

Thoughts on the Sentencing Commission's Brief

2004-09-09T22:01:00.000-05:00

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 knows – the 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

2004-09-09T08:46:00.000-05:00

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.

News

Quattrone gets 18 months. Law.com 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.

Courts/News

Oregon
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.

Colorado
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.

DENIED AS TO ALL OTHER ISSUES.

Petition for Writ of Certiorari GRANTED EN BANC.

Looking at the Senator's Amicus Brief

2004-09-08T13:42:00.000-05:00

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

2004-09-08T10:59:00.000-05:00

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.

District Courts Weigh In

2004-09-07T08:39:00.000-05:00

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

2004-09-07T07:46:00.000-05:00

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.

SG's Brief in Booker and Fanfan

2004-09-01T16:26:00.000-05:00

The SG has filed a 70+ page brief in Booker and Fanfan, which you can access here.

Details at 11...

Blog Update for Techies

2004-09-01T12:33:00.000-05:00

For those of you who know what an Atom feed or an RSS feed is, you'll notice that in the righthand sidebar (next to this post), there is a feed for both.

If you don't know what an Atom feed or an RSS feed is, don't worry - it means you get out of the house more.

Back in Black (The red, actually)

2004-08-31T06:54:00.000-05:00

I’ve returned from my Las Vegas vacation, ready to continue the task of Blakely blogging.
I am currently in New York, taking an intensive, one-week professional responsibility course. Although the course keeps me busy during much of the day, my Vegas trip has freed me from other distractions, notably those involving money. A word to the wise: before you play craps, learn the rules.

I see I've missed a lot, particularly the 6th Circuit's ruling that the guidelines are constitutional. Hopefully, in due course, I'll get to the previous week's happenings. For now, I'm going to focus on today's news.

California Courts

The California courts continue deny without prejudice, any relief to which the defendant might be entitled until the California Supreme Court decides People v. Black, S126182, and People v. Towne, S125677. See People v. Bailey, 2004 Cal. LEXIS 8178 (Aug. 25, 2004); People v. Cole, 2004 Cal. LEXIS 8051 (Aug 25, 2004); People v. Gordon, 2004 Cal. LEXIS 8058 (Aug. 25, 2004); People v. Jaime, 2004 Cal. LEXIS 8035 (Aug. 25, 2004); People v. Han, 2004 Cal. LEXIS 8177 (Aug. 25, 2004); People v. Roettgen, 2004 Cal. LEXIS 8055 (Aug. 25, 2004); People v. Smith, 2004 Cal. LEXIS 8161 (Aug. 25, 2004).

News

The Cato Institute has released audio and video of their recent Blakely conference. Access the multimedia stream here.

Although this is surely old news by now (and not very surprising news), the Sentencing Commission has announced that it will file a brief in Booker and Fanfan. James Robinson, a partner in the D.C. office of New York's Cadwalader, Wickersham & Taft, has agreed to write the Commission's brief. The former Dean of the Wayne State Law School has until tomorrow to finalize his brief.

Fellow blogger, Doug Berman has this to say in the article:

The prospect that the commission is echoing the government's view on the applicability of Blakely and sidestepping the severability issue is a disappointment, said Douglas Berman, an Ohio State University law professor who is tracking post-Blakely developments on his weblog, Sentencing Law and Policy. Berman asserted that while the Justice Department can be expected to take pro-prosecution stands, the commission ought to have a different and broader perspective that takes the interests of defendants into account. "The commission should be a leader in the post-Blakely world, not a follower," said Berman.

I agree with that. In fact, I wrote an Essay that makes a related point.

First Circuit on Ineffective Assistance of Counsel

2004-08-25T17:38:00.000-05:00

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"

2004-08-25T17:27:00.000-05:00

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

2004-08-25T08:18:00.000-05:00

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.

Viva Las Vegas

2004-08-24T23:24:00.000-05:00

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

2004-08-24T09:13:00.000-05:00

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

2004-08-24T08:08:00.000-05:00

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.

Seeking Some Blakely Help

2004-08-23T10:33:00.000-05:00

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

2004-08-23T08:22:00.000-05:00

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."

Updates from Indiana

2004-08-20T14:24:00.000-05:00

Marcia Oddi has covered some Blakely news in Indiana.

In a post entitled, "Indiana Decisions - Blakely ruling by U.S. District Judge Richard L. Young," Marcia covers the federal courts.

And in a post entitled, "Indiana Decisions - Three today from the Court of Appeals," Marcia points out that Blakely is mentioned in a footnote, but that is something for Indiana, where many, including AG, have said Blakely isn't applicable.

Morning News

2004-08-20T06:49:00.000-05:00

Late last night I posted some notes sent to me by a fellow Columbian from the National Association of State Sentencing Commission’s annual conference in New Mexico. Be sure to look that post over if you're interested in state sentencing.

Now, today's developments...

News

The Hartford Courant is running an editorial entitled, "Sentencing Ruling Invites Chaos." The editorial comments that, "Blakely will not impact state courts here because Connecticut does not have guidelines that permit longer sentences based on findings outside a jury's purview."

Cases

There is a fascinating case out there today from the District Court of New Jersey. Judge Jerome B. Simandale has written an opinion in United States v. Harris, 2004 U.S. Dist. LEXIS 16239 ( No. 03-354 (JBS))(D.N.J., Aug. 18, 2004) in which he rules that sentencing factors need not be charged in an indictment because the defendant was afforded notice that the jury would be considering the enhancements if it returned a guilty verdict.

The case is interesting, if for no other reason that that timing of the Blakely decision and the proceedings in Harris created an opportunity for the judge to issue a unique ruling. On the same day that Blakely was decided, the government rested its case. This gave the judge and the lawyers the opportunity to discuss Blakely before the jury decided the issue of guilt or innocence. Judge Simandale's opinion oozes of pragmatism, stating explicitly in the opening sentence that the court's compromise to accommodate Blakely comes after " twelve months of pretrial proceedings, ten days of trial, and the testimony of twenty-seven witnesses" in the Harris matter. So, the court devised a plan to "manage the continuing trial before it and to protect the rights of the five defendants involved, in light of the new legal landscape (and indeed the uncertainties) created by the Blakely decision."

Under that plan, once the jury returned a guilty verdict, it would consider these six questions (which you'll notice are to be considered 1-5, and then six is considered separately):

1. That the conspiracy continued past November 1, 2001, and that each defendant remained a participant in it;
2. That the amount of loss attributable to each defendant was greater than ten-million dollars;
3. That the offense involved a scheme to defraud more than one victim;
4. That the offense involved more than minimal planning; and
5. That defendants Harris, Lundy, and Wooten played an aggravated role in the conspiracy.

Then, after returning its verdict on these first five factors, the jury would return to hear evidence, deliberate and determine the sixth sentencing factor:

6. That each defendant willfully obstructed the administration of justice during the course of the investigation or prosecution of this matter.

So, do we have a district court split with US v. Medas? Well, sort of but not really. In Medas, the court did not allow the prosecutor to submit a special verdict form listing sentence enhancements once the jury began its deliberations in the guilt phase. Here, after the government rested its case (the same day Blakely was decided), but before the final closing argument, the judge informed the defendant that if he was found guilty, he would submit the enhancements to the jury.

I'm sure you defense attorneys out there will disagree with Judge Simandale's compromise.

Focus on the States - A Report from New Mexico

2004-08-19T22:25:00.000-05:00

Dave Ziff, a third-year Columbia law student and a good friend, recently attended the National Association of State Sentencing Commission’s annual conference in New Mexico.

Dave has been kind enough to share his notes with me and the readers of this blog. I'd like to thank him for taking such good notes and sending them my way.

Here are Dave's notes from the conference:

1) Russ Hauge from the Washington Sentencing Commission began by saying "You're welcome" to those of us in the audience. Indeed, thank you Mr. Hauge. While many seemed to be interested in the effects of Blakely, his opinion is that "the sky is not falling." Out of 30,000 felony sentences in Washington last year, a mere 100 of those were upward departures without the consent of the defendant. If Blakely requires jury factfinding at sentencing, it does not seem as if the procedural requirements will affect many cases in Washington. Most upward departures were made pursuant to plea, so Blakely would not be implicated. Mr. Hauge made an observation that was echoed throughout the conference: The states do not have money, so the response to Blakely won't be to simply increase all mandatory sentences. While that may be a concern at the federal level, the states are unlikely to be able to afford that option.

2) Judge Richard Walker of Kansas spoke on what they have been doing since 2001, when the state supreme court held that Apprendi applied to upward departures. As you probably know, in response to that ruling Kansas began using sentencing juries. However, the actual use of these juries seems to be rare. In FY 2003 there were only 17 upward departures made pursuant to jury factfinding, and in FY 2004 the number was 21. Judge Walker gave several possible reasons for the low number of jury-based enhancements. First, he discounted the possibility that the additional hassle of using the sentencing jury was a deterrent. The hearings are usually short and not much trouble. Instead, his view was that Kansas's already high sentencing ranges, before any upward departures, were high enough for the satisfaction of most DAs. Additionally, if an extended sentence is desired, DAs can easily move for the imposition of consecutive sentences under Kansas's procedural rules. Often this method can be used to obtain increased sentences instead of separate jury factfinding.

3) Professor Kevin Reitz of Colorado (and reporter for the ongoing revision of the MPC sentencing provisions) presented what he referred to as a summary of potential Blakely pitfalls. Basically, he views Blakely as a tax on states that want to achieve the benefits of guideline sentencing---real notice to defendants, reduction of racial disparity, predictable cost, and good public policy. He worries that some states may respond by imposing a Harris-approved topless guidelines system with mandatory minima, or that states may return to indeterminate sentences thus taking power away from judges and placing it in the hands of parole officials. In states that have yet to adopt guidelines, Professor Reitz fears that parties who oppose guidelines will use Blakely to prevent the adoption of a guideline system, or force a compromise whereby states adopt "voluntary" guidelines without force, instead of real presumptive guidelines that better achieve the aforementioned benefits.

4) One interesting solution, mentioned by Professor Reitz, is the Virginia system. In Virginia all guidelines are voluntary. Like Washington's guidelines, they are set by the legislature, but judges can depart from them for any reason whatsoever, and those decisions are not appealable. Because the defendant has no right to a given sentence, Blakely probably does not affect this system. However, in order to achieve a high rate of compliance with the voluntary guidelines, judges in Virginia are elected by the legislature. Supposedly, the legislature prefers judges who impose sentences within the guidelines, so this political check operates to add some teeth to the voluntary guidelines. I spoke with a member of the Virginia Sentencing Commission about this system, and his opinion was that the legislative oversight was a successful check on judicial discretion. However, in the interest of being fair and balanced (tm), another person from Virginia told me that while the fear of legislative reprisal may have influenced judges when the guidelines were first adopted, in more recent years judges have realized that the legislature doesn't actually check their compliance rates. I cannot speak to the veracity of either claim, but I do know that everyone agrees over 80% of sentences in Virginia are within the guidelines range---not bad for a voluntary system.

5) An interesting observation about the conference---there was virtually no discussion about Almendarez-Torres. Everyone basically assumed that regardless of Blakely's effects, states would be free to use criminal history as a sentencing factor without going to a jury. Professor Rachel Barkow, a professor at NYU, was the only one to mention AT, and observed that while 5 judges of the Supreme Court no longer agree with its holding, the Court has refused to grant cert on the issue in the last 4 years, perhaps indicating a reluctance to actually overrule AT's holding. Who knows what the Court is going to do, but as Professor Barkow said, the view that Blakely won't have much of an effect on the states has to be thrown out the window if AT gets overruled.

6) Rachel Barkow's discussion of the MPC focused on whether the MPC's sentencing recommendations should be altered in response to Blakely. Currently, the MPC recommendations are similar to the Minnesota system, with a sentencing commission and presumptive guidelines departures from which are appealable. The MPC does not recommend which brach of government should contain the commission. Professor Barkow's advice was that in deciding where to place the commission and whether to go with presumptive or voluntary guidelines, the states should ignore Blakely, and likewise Booker and Fan-Fan. It seemed to her that most states would not have much trouble using sentencing juries to cure Blakely problems. Most states, as opposed to the USSG, have limited departures and do not rely on "relevant conduct" outside the conduct of conviction. So states can use sentencing juries much more readily than the Feds. Because of the ease of that fix, states should place sentencing commissions in the legislative branch if they want, and should continue to rely on presumptive guidelines that have the force of law, if that is what they wanted to do before Blakely. Basically, there are just too many other factors weighing on those decisions, all of which are more important than Blakely.

7) Here are a few interesting questions from the conference. I have heard some of these issues discussed elsewhere, but regardless, it is interesting to see what is on the mind of state sentencing commissions.
(a) Some states require some judicial factfinding before allowing the imposition of consecutive sentences. Does Blakely affect this procedure? California has said no, but other states are sure to disagree.
(b) Will defendants actually be helped with the extra bargaining power Justice Scalia claims Blakely gives them? Professor Reitz says no, and he has been looking at the different sorts of pleas defendants got in Kansas both before and after that states "Blakely" ruling. Apparently, the pleas have been the same regardless. There's an article coming out soon looking more closely at this issue.
(c) What constitutes a "fact" for Blakely purposes? What if the jury finds "facts" and then the judge must make a "judgment" based on those facts to determine whether an enhanced sentence is warranted? It seems clear that under Blakely, if a jury finds facts supporting a finding of "deliberate cruelty" the judge could still refuse to impose an enhanced sentence. But what about if that situation is framed differently? What if the jury finds some facts, and then the judge must make a finding that those facts evidence "deliberate cruelty" before imposing an enhanced sentence? Does that violate Blakely? Can the judge's finding regarding the existence of "deliberate cruelty" be appealed?
(d) Speaking of appeals, the Protect Act got some talk at the conference as well. Congress overruled US v. Koon and said that sentencing decisions must be reviewed de novo. But Blakely means that those decisions are now made by the jury, not the judge. So what does that mean for the Protect Act? I would think that Circuit Courts will not be able to review jury sentencing decisions de novo. But is there any role for the review provisions of the Protect Act in the post-Blakely world? Can sentences ever be appealed now under any circumstances?

The overall tone at the conference was that most states could put a band aid on here or there, and everything would be fine. Money was the main topic of conversation. The states face budget problems unmatched by the federal government, and any Blakely response on the state level is likely to focus on the bottom line. One benefit of guidelines that was trumpeted here, one that I had never heard in the federal discussion, was the ability to predict with accuracy changes in prison populations and the concomitant costs. Being "tough on crime" at the state level means filling prisons, and that means spending money. Guidelines allow lawmakers to know exactly how long people are going to be in jail for certain violations, and budget accordingly.

Morning News

2004-08-19T08:06:00.000-05:00

Not much out there today.

Minnesota

Minnesota continues to remand cases for consideration in light of Blakely: State v. Carlson, 2004 Minn. App. LEXIS 956 (Minn. Ct. App., Aug. 17, 2004); State v. Henderson, 2004 Minn. App. LEXIS 953 (A03-867 )(Minn. Ct. App., Aug. 17, 2004); State v. Rivera, 2004 Minn. App. LEXIS 962 (A03-1596 )(Minn. Ct. App., Aug. 17, 2004).

News

A few days ago, The Oregonian published an article entitled, "Confusion reigns in federal, state courts." Here's an interesting snippet from the article:

In state court, Salem defense lawyer Jesse Barton, who has written manuals about the state sentencing system, said the implications for Oregon are "absolutely enormous."

An Open Letter to the NACDL

A reader of this blog has shared with me some of his thoughts on Blakely which he’s put to paper in the form of an open letter to the National Association of Criminal Defense Lawyers.

The letter is from Larry Fassler, who has written two books: Busted by the Feds, and Ineffective Assistance of Counsel, both published by Southwest Legal Services in Tucson. He has seventeen years experience working with inmates sentenced under the Guidelines, helping them perfect appeals and 2255 motions.

Larry hopes that his letter will offer some guidance to all those involved in shaping a post-Blakely sentencing system. He fears that the current Blakely environment is fraught with “group think,” which, in Larry’s view, obfuscates the real goals for reform: “fairness, honesty, and truth in all stages of prosecution of criminal defendants in this country.”

You can read Larry’s letter here.

Update: I've fixed the link to Larry's letter. You can actually read it now.

Tuesday News

2004-08-17T07:16:00.000-05:00

I'm back on track. Here's today's news.

California Cases

The Second, Third, and Fourth Appellate District Courts of California have denied, without prejudice, any relief to defendants until the California Supreme Court decides People v. Black, S126182, and People v. Towne, S125677. See People v. Brown, 2004 Cal. LEXIS 7563 (Cal. Ct. App., Aug. 11, 2004); People v. Lopez, 2004 Cal. LEXIS 7531 (Cal. Ct. App., Aug. 11, 2004); People v. Street, 2004 Cal. LEXIS 7553 (Cal. Ct. App., Aug. 11, 2004).

Using some vivid imagery, Judge Yegan of the Second Appellate District Court of California has ruled that Blakely doesn’t apply to the imposition of consecutive sentences in People v. Vonner, 2004 Cal. App. LEXIS 1334 (Cal. Ct. App., Aug. 16, 2004). We’re heard that before, but the opening paragraph of the opinion is worth reading:

Contrary to the numerous contentions in the deluge of supplemental briefs now being filed in the California Appellate Courts, it is not at all clear that the United States Supreme Court opinion in Blakely v. Washington (2004) __ U.S. ___ [124 U.S. 2531] has sounded the death knell for California sentencing laws. It remains to be seen whether the Determinate Sentencing Law has been bruised, battered, or born into a better world. n1 Here we only conclude that Blakely does not impact a sentencing court's imposition of a full consecutive sentence for an enumerated violent sex offense. (Pen. Code, § 667.6. subd. (c).) n2

News Stories

Law.com reports: 2nd Circuit Upholds Guidelines Until High Court Rules.

The Sentencing Commission has a new chair, U.S. District Court Judge Ricardo H. Hinojosa. The Sentencing Commission web page has a press release available about Judge Hinojosa. There's no mention of Blakely (surprise).

The Grand Rapids Press has an editorial entitled, "Sentenced to chaos: U.S. Supreme Court ruling needs clarification – soon." The editorial offers a look into the federal district courts in Michigan:

In the wake of the Blakely case, a federal appeals court that serves Virginia, Maryland and three other states, recommended that its judges issue two rulings. One would be based on the current guidelines, which the court urged judges to continue following. The second is provisional and uses the guidelines only as "advisory" in case a later Supreme Court hearing throws out the federal rules.

U.S. District Judge Robert Holmes Bell in Grand Rapids has similarly issued two sentences. District Judge Gordon Quist, also in Grand Rapids, has declared the sentencing guidelines unconstitutional under Blakely, though he continues to adhere to them as a practical matter. The same is true for District Judge Richard Enslen of Kalamazoo. U.S. Attorney General John Ashcroft, meanwhile, has ordered prosecutors to treat the guidelines as constitutional and still operative.

Way Behind

2004-08-16T20:31:00.000-05:00

I apologize for being behind on the latest Blakely news. I've been looking for an apartment in NYC, while staying in an apartment that doesn't have internet access. Add the burden of preparing clerkship applications and that's a recipe for little to no blogging. I'll be back on track tomorrow.

USSC To Hold A Public Meeting

2004-08-13T11:06:00.000-05:00

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

August 12, 2004

NOTICE OF PUBLIC MEETING OF THE UNITED STATES SENTENCING COMMISSION

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
Adjourn

More from the 7th Circuit

2004-08-13T09:58:00.000-05:00

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

2004-08-13T08:59:00.000-05:00

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.”

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

2004-08-12T12:08:00.000-05:00

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

2004-08-12T10:02:00.000-05:00

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

2004-08-12T08:52:00.000-05:00

Michigan

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!

Minnesota

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

Law.com 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.

A full Blakely Plate

2004-08-11T14:18:00.000-05:00

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.

Law.com 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.

1st Circuit Puts on the Brakes

2004-08-10T17:07:00.000-05:00

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

2004-08-10T13:00:00.000-05:00

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

2004-08-10T09:21:00.000-05:00

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.

Calling All Michiganders

2004-08-09T11:01:00.000-05:00

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

2004-08-09T10:42:00.000-05:00

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?

2004-08-09T09:18:00.000-05:00

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

2004-08-09T08:00:00.000-05:00

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.

A Blakely Blockbuster

2004-08-06T16:36:00.000-05:00

Chief Judge Sven Erik Holmes has just issued an opinion in US v. O’Daniel, No. 02-CR-159-H (N.D. Okla. August 6, 2004), which if I had to guess, will generate a lot of discussion.

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.”

Wow. Get the opinion here (warning, this is a pretty big pdf, 972 kb).

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?

2004-08-06T14:33:00.000-05:00

I get that quetion a lot. And other variations of it, too, such as: why are you doing this? who do you think you are? do you spend all of your time doing this?

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

2004-08-06T13:24:00.000-05:00

The Minnesota Sentencing Guidelines Commission has issued their report. Basically, the report says that the guidelines don't totally disrupt the guidelines and the parts that are affected can be fixed.

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.

Morning News

2004-08-06T11:03:00.000-05:00

Sorry for the delay with the morning news. It may not even be the morning by the time I hit "publish." You can blame it on a late night of karaoke...

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.

The Pioneer Press reports, "Decision has state courts in a tizzy." The article reports:

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.

Newsday has a very short article that I usually wouldn't post but the first sentence caught my eye:

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.

Blakely Blog

Here Comes the Fat Lady

CLS Sentencing Symposium - Considerations at Sentencing – What Factors are Relevant and Who Should Decide?

CLS Sentencing Panel – Prosecutorial Discretion and Its Challenges

CLS Sentencing Symposium - Judge Lynch's Opening Remarks

State Sentencing Symposium at Columbia Law School

Tuesday Morning News

Morning News Stories

More News Stories

Lots and Lots of News Stories

Late Nite Thoughts

Guidelines Suffer Technical Knockout - May Live To See Another Day

5 hours and counting?

No Decision Today

More Exciting News About the Columbia Sentencing Symposium

I've run out of clever blog posts to communicate that we still don't have a Booker and Fanfan decision

The waiting is the hardest part

Still No Decision from the SCOTUS

State Sentencing Symposium at Columbia Law School

Gone Fishin'

Blakely and Consecutive Sentences in New York

"Restitution Proceedings In Federal Sentencing" - An Online Seminar

Oral Argument Transcripts from Booker and Fanfan

California Dreamin' and Some Thoughts About Monday's Argument at the Court

Only a temporary pause

Late night wrap-up

The Last Word

The Respondents Strike Back

The Argument, Part I

On your marks...

215 posts later...

Some observations with only a few hours to go

What's the spread?

Notable Pre-argument Articles

The Waiver Brief

The NYCDL Brief

Blog Housekeeping

The NAFD Brief and Plea Bargains

More waiting in Colorado and Duke Law Professor Neil Siegel's thoughts on Blakely

Berman v. Bibas - On Online Debate

Excellent Resources from the Vera Institute of Justice

The WLF Brief - Trying to Unlock Blakely's Potential

The NACDL's Powerful Brief

Has the 3rd Circuit also joined the waiting game?

Looking at the FAMM Brief

Waiting Game

Morning News

A Simple Plan

Noteworthy News

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

Blakely News

News from the California Courts

Cases and News

Adding Fuel to the Blakely Fire

Monday News

8th Circuit News

Sunday's News

Judge John Martin and The Judges' Brief

The Constitution Project To Host Blakely Discussion

Update on Frank Quattrone

Thoughts on the Sentencing Commission's Brief

Thursday News and Updates

Looking at the Senator's Amicus Brief

Morning News

District Courts Weigh In

Morning News

SG's Brief in Booker and Fanfan

Blog Update for Techies

Back in Black (The red, actually)

First Circuit on Ineffective Assistance of Counsel

"Just the Facts, M'am"

Smattering of News

Viva Las Vegas

Two New Blakely Essays

Morning Update

Seeking Some Blakely Help

Midwest focus

Updates from Indiana

Morning News

Focus on the States - A Report from New Mexico