August 17, 2004
Interesting applications of Ameline
Though the Seventh Circuit's ruling in Booker declared the guidelines at least partially unconstitutional, only the Ninth Circuit's ruling in Ameline (details here) coupled such a decision with a ruling on severability as well. And now we are starting to see some interesting applications of Ameline:
1. In an unpublished decision in US v. Cortes, 2004 U.S. App. LEXIS 16784 (9th Cir. Aug. 13, 2004), the Ninth Circuit is able to affiirm a guideline enhancement despite Ameline's holding this way:
Cortes also contends in a supplemental brief that his sentencing enhancements for using a dangerous weapon and inflicting serious bodily injury violate the Sixth Amendment. We disagree. Because Cortes admitted all of the facts underlying the enhancements, the district court did not engage in improper fact-finding.
This brief decision is interesting and opaque because it is unclear in what setting defendant Cortes made these admissions, while it seems clear that he made them before Blakely made such admissions so obviously consequential.
2. In US v. Davis, 2004 U.S. Dist. LEXIS 16044 (C.D. Cal. Aug. 13, 2004), US District Judge William Rea in the context of a wire fraud sentencing first observes that "Blakely's premise is simple: a district court judge may only impose a sentence based on 'facts reflected in the jury verdict or admitted by the defendant.' While the court must apply Blakely to determine the proper method of sentencing, this is challenging because the Blakely analysis is extremely complex."
Then, after noting that Ninth Circuit's Ameline decision suggested convening a sentencing jury to estabish sentencing enhancing facts, Judge Rea observed that convening "a sentencing jury [in this case] will not resolve the constitutional infirmity under Blakely." Here's why, according to Judge Rea:
Defense counsel's reply briefly informs the Court that the government could not have charged Defendant with the 82 additional counts of wire fraud because the statute of limitations on those counts had already run. Thus, even if the trial occurred after Blakely, the government could not have presented the additional 82 counts to the jury. The Court will not allow the government to circumvent the statute of limitations through sentencing. Because these facts were barred by the statute of limitations and, thus, could not have been decided by the jury during trial, the Court will not allow them to get in through the back door as sentencing factors. A sentencing jury is not appropriate for this type of enhancement, which is based on the Defendant's alleged commission of 82 crimes in addition to those charged in the indictment.
Then, summing up his rulings, Judge Rea concludes with an interesting final decision about alternative sentencing:
For the forgoing reasons, the Court will sentence Defendant as scheduled on September 13, 2004 based on an eight point offense level without the aid of a sentencing jury. Additionally, the Court recognizes that the Supreme Court granted certiorari on United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004) and United States v. Fanfan, No. 03-47-P-H (D. Me. June 28, 2004), which raise the same issues as Ameline, and thus the Court will exercise its inherent authority to pronounce an alternative, indeterminate sentence. The Court requests that the probation officer prepare a revised pre-sentence report that reflects this ruling.
August 17, 2004 at 10:11 PM | Permalink
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Fascinating! Couldn't Congress fix this type of problem by lengthening the statute of limitations for offenses to, say, ten years? Would that be an easier fix as a political matter than, for example, Frank Bowman's proposal to raise the ceilings on base offense levels? I hope not but fear it would be.
Posted by: Alex E. | Aug 18, 2004 12:46:38 PM
I am defense counsel for Cortes on appeal. Cortes was convicted of attempted carjacking after a jury trial. He received enhancements for inflicting serious bodily injury and using a dangerous weapon. Although he did not contest at trial that he struck the victim with a pull-out car stereo, he never admitted and, of course, there was no jury finding that he inflicted serious bodily injury or used a dangerous weapon. So when the Ninth Circuit says that there was no improper judicial fact-finding because he admitted the facts underlying the enhancements, they are distorting the holding of Blakely. That is akin to saying that someone who admitted committing fraud could not contest a judicial finding of loss - because he admitted the facts underlying the enhancement.
I can only hope the Circuit will remedy its error upon our petition for rehearing. It seems that it did not receive much consideration as the decision was issued four days after submission to a screening panel and without any responsive briefing on the Blakely issue by the government.
Posted by: Michael Tanaka | Aug 18, 2004 8:01:03 PM