July 23, 2004
Heartland of Confusion
Judges Bright and Lay in their Mooney decision — which, despite its peculiar sequence of opinions is now binding law for seven states — assert that the "district courts in this Circuit have an urgent need for clarification." That is so very true, but I am not sure that the decision in Mooney really clarifies more than it confuses.
First, the Eighth Circuit expressly adopts Judge Cassell's severability analysis in Croxford and thus "direct[s] the district court to follow Judge Cassell’s procedure of treating the Guidelines as non-binding but advisory, unless the defendant consents to a Guidelines sentence." Slip op. at pp. 23-24 (emphasis in original). Seems simple enough, but this ruling leads to two big initial questions:
1. What in the world does it mean for a defendant to "consent to a Guidelines sentence"? Is that the same as waiving rights under the Sixth Amendment? Can this be done in a plea argeement? Can the defendant ask the judge first to state what the judge would impose with the guidelines only advisory and then decide if he "consents to a Guidelines sentence"? As noted before, a world in which the guidelines no longer bind judges could, in a particular case, actually be worse for a defendant (see background here noting a case in which a judge imposed a harsher sentence than permitted under the guideliens following a ruling that the federal guidelines are unconstitutional). But a defendant would not know which world is better until he gets at least some inkling of the likely ruling in an advisory world.
2. As I have argued here and discussed here, and as US District Judge Gregory A. Presnell has held in US v. King, 6:04-cr-35 (M.D. Fla. July 19, 2004) (details here), if severability analysis leads to the conclusion that the guidelines are wholly inapplicable in one case, then the same analysis suggests that the guidelines be deemed wholly inapplicable in every case (including those that do not involve any "Blakely factors"). By adopting Croxford, does the Eighth Circuit mean to reject that position and hold that the guidlines are advisory only in cases with Blakely factors, but still fully binding in cases without Blakely factors?
July 23, 2004 at 04:52 PM | Permalink
TrackBack URL for this entry:
Listed below are links to weblogs that reference Heartland of Confusion:
Looks like the Mooney majority has deemed the Guidelines wholly inapplicable (and merely advisory) in every case. On page 23 the court refers to Croxford as "holding the Guidelines wholly unconstitutional." Correct me if I'm wrong, but Croxford did no such thing. Either the court forgot to write "as applied," or it is incorrect about the Croxford holding.
[I'm a 2nd year law student at UVa, working at a law firm for the summer)
Posted by: Roy Litland | Jul 23, 2004 5:06:20 PM
Maybe its just me, but I think both the majority and dissent are off-base. Severability shouldn't even be in the equation. The guidelines can continue to be applied under Blakely, but only to the extent that a defendant is sentenced for conduct involving facts that were either admitted or indicted, and proved beyond a reasonable doubt to a jury (or judge, if a defendant consents to a trial by the court). The import of Apprendi and Jones is that reliance on a fact that increases a defendant's sentence beyond the maximum elevates that fact to the status of an element. Blakely simply clarifies that the maximum is not the technical maximum in the criminal code statute (that wasn't really involved in the process anyway) it is the maximum that a judge could impose with out relying on the fact (i.e., the Guideline range). So, all it means is that the government simply has to prove their case. If they want a higher sentence, they have to charge it and prove it. This really isn't about the sentencing guidelines or determinate sentencing at all . . . its basic criminal law and procedure and basic constitutional law. In implementing the Guidelines, courts, prosecutors and everyone else just forgot about the elements of a crime. Scalia's opinion is just getting back to basics. Blakely is completely consistent with the other pronouncements by the Supreme Court on the subject of elements of a crime. Read Jones, Apprendi, Ring and Sattazahn. Also take a look at Cotton, Gaudin (Scalia opinion), Sullivan v. Louisiana, Mullaney and Scalia dissent in Monge. Everything makes sense when the enhancing facts (those that increase the newly defined maximum)are regarded as elements. Also, everybody is making a big deal out of the jury aspect (which, of course, was the only thing addressed in Blakely) when the really big deal, and probably the impetus for these recent holdings by the Supreme Court, is the fact that the Fifth Amendment Due Process Clause imposes on the government a duty to prove every element beyond a reasonable doubt. Many of the outrageous sentences that occurred under the guidelines were based on so-called evidence that wouldn't even satisfy a preponderance standard. It is that effect on fundamental fairness coupled with prosecutorial over-reaching that has been most troubling about the Guidelines. But, we shouldn't throw the baby out with the bathwater. The guidelines can be okay if enforced within the parameters of proving every element beyond a reasonable doubt (of course, defendants can and will still plead to facts when it is clear that the government could prove them beyond a reasonable doubt anyway). The government's unequal bargaining position will be brought in line under these constitutional constraints. Also, a defendant can consent to a trial to the court, but he can't consent to a conviction on only a preponderance of evidence (again assuming the fact is an element) or else the evidence wouldn't be sufficient to hold up on appeal. (Where sufficiency of evidence is reviewed on a beyond a reasonable doubt standard). Yes, you say, but a defendant can waive his Constitutional rights, surely he can waive the preponderance standard? No, because its not the defendant's right, it’s the government's burden. The defendant's option is to admit the fact if he doesn't want to put the government to its proof. These are just some of my thoughts, for what they’re worth. -an interested attorney
Posted by: Marcia | Jul 23, 2004 6:18:41 PM
The Ninth Circuit got it right. Mooney gets it wrong.
The 'severability' debate, in the end, requires a choice among a number of lesser or greater evils:
- if you permit the Guidelines to be used, but bar upward enhancements based on judicial findings, you thwart Congress' intent to force judges to impose higher sentences
- if you permit the Guidelines to be used only in cases where no upward enhancements are contemplated, but not in others, you thwart Congress' intent to create a single sentencing system for all defendants, promoting equity across cases, courts and judges
- if you toss the Guidelines out altogether, you thwart Congress' intent to limit judges' discretion in imposing federal criminal sentences, and reopen the possibility of unjust disparities in sentencing based on illegitimate factors
So which is best? Which is worst? To me, the best option is #1, for several reasons.
1. It avoids an unnecessary ruling that the bulk of the USSG is unconstitutional; it is well established that such constitutional rulings are to be avoided if at all possible.
2. It hinders only the least significant and least legitimate Congressional goal in enacting the USSG, that is, increased punishments.
3. It preserves equity across cases, courts and judges.
4. It guarantees that defendants who pled guilty or went to trial believing that the Guidelines would apply are not unfairly prejudiced.
5. Most importantly, it is the only reasonable reading of the actual holding in Blakely.
Like Apprendi, Blakely changed the way courts must do business under the Guidelines. Just as Apprendi affected only one aspect of the system, Blakely affects only one aspect of the system.
The Court held only that upward enhancements cannot be made without a jury finding or an admission. Stretching the holding beyond the confines of that fact pattern flies in the face of the very argument made by the government in support of its (laughable) position that Blakely has no effect on the Guidelines; that is, that the Supreme Court has repeatedly held other aspects of the USSG to be valid and constitutional. Mistretta, Watts, Witte, etc. need not be disregarded. The Guidelines, in general, are constitutional. One aspect of them is not. There is no reason to believe that by holding one aspect of the USSG -- an aspect which, according to the Commission, affects only 1 in 5 cases -- the Court in fact intended the entire system to be ignored.
The whole idea that it is "unfair" to the government to limit Blakely to its terms, and invalidate only upward enhancements, is ludicrous. The government has no 6th Amendment rights to be violated. Furthermore, it is a fundamental pillar of our criminal justice system that the defendant is to be protected, not the government. Just as it is perfectly fair that we do not reqire a defendant to prove his innocence beyond a reasonable doubt, while we require the government to prove his guilt by that onerous standard, it is perfectly fair that we permit a judge to establish mitigating sentencing factors by a preponderance standard, without a jury, while requiring aggravating factors to be established by a jury beyond a reasonable doubt.
Just the frustrated musings of one who is tired of having to update her Blakely brief every time another judge puts pen to paper...
Posted by: SM | Jul 23, 2004 6:55:59 PM
Here is a "solid wall of authority" argument, made by California federal attorney Suzanne Luban, in support of an effort to raise a Balekly issue on direct review despite the fact that no constitutional objection was interposed at the district court level:
At the time of appellant's trial and sentencing in district court, and when he filed his opening brief in this appeal, and indeed until the Supreme Court decided Blakely, the law of this circuit established a "solid wall of circuit authority" holding that any Apprendi error is harmless where a defendant's maximum sentence falls below the statutory maximum. See e.g., United States v. Buckland, 289 F.3d 558, 570-571 (9th Cir. 2002) (en banc) (no plain error where sentence imposed did not exceed aggregate maximum for all counts "stacked"); United States v. Fields, 251 F.3d 1041, 1043-1044 (9th Cir. 2001) ("Apprendi does not apply to enhancements under the Sentencing Guidelines when the resulting sentence remains within the statutory maximum"); United States v. Johansson, 249 F.3d 848, 861-862 (9th Cir. 2001); United States v. Garcia-Guizar, 234 F.3d 483, 488-489 (9th Cir. 2000), cert. denied, 532 U.S. 984 (2001).
This Court does not require criminal defendants to preserve an objection in the face of “a solid wall of circuit court authority.” United States v. Keys, 95 F.3d 874, 880, 878 (9th Cir. 1996) (en banc); United States v. Scott, 425 F.2d 57 (9th Cir. 1970) (en banc). "When faced with a 'solid wall of circuit authority' [precluding a challenge to a particular violation], no objection to that [violation] need be registered in the trial court to preserve the point on appeal should that 'solid wall' suddenly crumble in the interim... ." Keys, at 878. Blakely has crumbled the solid wall that previously rendered futile any Apprendi challenge where the sentence was below the statutory maximum.
Therefore, appellant must be excused from his failure to object before the district court to the judicial determination, in lieu of a jury determination, by a preponderance of the evidence in lieu of beyond a reasonable doubt, of sentencing factors which increased appellant's sentence beyond that permissible based on the verdict alone.
Under Chapman v. California, 386 U.S. 18, 24 (1967), a constitutional error requires reversal unless the government establishes that the error is "harmless beyond a reasonable doubt." This standard is only met where it is clear "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. The government cannot satisfy its burden under Chapman. Appellant's sentence was increased well above that which he would have received based on the verdict alone.
Accordingly, this Court should vacate appellant's sentence and remand for resentencing without the enhancements.
Posted by: Victor S. Haltom | Jul 23, 2004 8:41:41 PM
Here is an updated, more accurate solid wall of authority argument (more accurate than that set forth in the above posting) --- seeking to pave the way for review of a Blakely claim, nothwithstanding the absence of an objection in the district court
C. Because, at the Time of Mr. Bates’ Sentencing, There Was “A Solid Wall of Circuit Authority”—Standing for the Proposition that the Rule of Apprendi Did Not Extend to Factual Determinations Germane to Federal Sentencing Guideline Calculations—and Because, During the Pendency of the Instant Appeal, that Formerly Solid Wall Has Been Smashed Down By Blakely and Ameline, Mr. Bates Is Entitled to Raise the Apprendi / Blakely / Ameline Issue, Notwithstanding the Absence of a Constitutional Objection in the District Court.
1. The Former Solid Wall of Authority
At the time of Mr. Bates’ trial and sentencing in district court, and when he filed his opening brief in this appeal, and indeed until the Supreme Court decided Blakely, there was a “solid wall of circuit authority,” supporting the proposition that there could be no Apprendi error when a judge-made factual finding resulted in an increase in a defendant’s sentence, so long as the ultimate sentence did not exceed the applicable statutory maximum, viz., the pre-Blakely conception of what constituted the applicable statutory maximum. See United States v. Plancarte-Alvarez, 366 F.3d 1058, 1065 (9th Cir. 2004) (“we explained that the defendants erroneously conflated the requirements for establishing the statutory maximum sentence with the requirements for determining sentences under the Sentencing Guidelines”) (citing United States v. Toliver, 351 F.3d 423, 432-433 (9th Cir. 2003), cert. denied, ___U.S.___, 158 L.Ed.2d 994, 124 S.Ct. 2429 (2004)); United States v. Angel, 355 F.3d 462, 476 (6th Cir. 2003) (“Apprendi has never been held to apply to every fact that increases the defendant’s sentence within the rubric of the guidelines.”); United States v. Buckland, 289 F.3d 558, 570 (9th Cir. 2002) (en banc) (“‘the constitutional rule announced in Apprendi does not prohibit a district court from finding, by a preponderance of the evidence, facts relevant to the application of the Guidelines”) (quoting United States v. Lewis, 235 F.3d 215, 218-219 (4th Cir. 2000), cert. denied, 534 U.S. 814 (2001)); United States v. Fields, 251 F.3d 1041, 1043-1044 (D.C. Cir. 2001) (“Apprendi does not apply to enhancements under the Sentencing Guidelines when the resulting sentence remains within the statutory maximum”); United States v. Johansson, 249 F.3d 848, 861-862 (9th Cir. 2001); United States v. Garcia-Guizar, 234 F.3d 483, 488-489 (9th Cir. 2000), cert. denied, 532 U.S. 984 (2001); United States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir. 2000).
“In fact, before Blakely was decided, every federal court of appeals had held that Apprendi did not apply to guideline calculations made within [what was understood prior to Blakely to be] the statutory maximum.” Simpson v. United States, ___F.3d___, 2004 U.S. App. Lexis 14650 at *4, No. 04-2700 (7th Cir. July 16, 2004) (collecting cases).
2. In Light of the Former Solid Wall, It Would Have Been Frivolous for Mr. Bates to Have Asserted a Constitutional Objection in the District Court.
This court does not require criminal defendants to preserve an objection in the face of “a solid wall of circuit court authority.” Guam v. Yang, 850 F.2d 507, 512 n. 8 (9th Cir. 1988) (en banc) (“when faced with a ‘solid wall of circuit authority’ ..., no objection ... need be registered in the trial court to preserve the point on appeal should that ‘solid wall’ suddenly crumble”; accord, United States v. Uchimura, 125 F.3d 1282, 1286-1287 (9th Cir. 1997); United States v. Lopez, 100 F.3d 98, 103 n. 10 (9th Cir. 1996). Of course, as demonstrated by Ameline, Blakely has crumbled the solid wall that previously stood in the way of Apprendi challenges directed at sentences which did not exceed the pre-Blakely definition of “statutory maximum,” and which were based upon factual determinations not made by juries.
Therefore, the fact that Mr. Bates did not challenge his sentence on Apprendi grounds in the district court does not preclude him from raising the constitutional issue for the first time on direct review.
3. Harmless of Plain Error Review?
The question then becomes whether Mr. Bates is entitled to review of this claim under the harmless error standard or the plain error standard. See United States v. Perkins, 161 F.3d 66, 72-74 (D.C. Cir. 1998) (noting that the Supreme Court’s decision in Johnson v. United States, 520 U.S. 461 (1997) “casts doubt on whether harmless error and the supervening decision doctrine remain the appropriate rubrics for analyzing forfeited ... claims[,]” but expressly declining to “resolve whether plain or harmless error is the appropriate standard”).
This court has held that, under Johnson v. United States, 520 U.S. at 466-468, “the plain error test ... applies on direct appeal even where an intervening change in the law is the source of the error.” United States v. Jiminez Recio, 371 F.3d 1093, ____, 2004 U.S. App. Lexis 11680, at *14-15 (June 15, 2004).
However, in the above-referenced Perkins case, the District of Columbia Circuit expressed the view that the Supreme Court’s decision in Johnson does not necessarily compel application of the plain error standard in the context of a supervening/intervening change in the law. United States v. Perkins, 161 F.3d at 72-74
In any event, as discussed below, because the constitutional, sentencing error that occurred in this case constitutes plain error, it is not necessary to resolve whether the harmless error or plain error standard is applicable. Indeed, Mr. Bates is able to satisfy the more exacting standard.
Posted by: Victor S. Haltom | Jul 25, 2004 9:20:23 PM
So, all it means is that the government simply has to prove their case. If they want a higher sentence, they have to charge it and prove it.
Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:40:41 AM