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August 12, 2004

The Myth of Economical Parallel Sentences

Post from Ron:
As part of my "Ron Meets the Real World Tour," I have been chatting lately with prosecutors and defense attorneys in federal court, especially in the Fourth Circuit. You may recall that the Fourth Circuit, in Hammoud (background here), held that the guidelines were still constitutional but also "recommended" that district judges impose an "alternative" sentence treating the guidelines as advisory.

Based on my conversations so far, it appears that few district judges are accepting the invitation from the Fourth Circuit. They are imposing sentences under the guidelines without adjusting local practice to allow for a parallel "advisory guideline" process. The reason the judges often give is that the alternative sentence, meant to conserve judicial resources, will not accomplish this goal. Doug saw this one coming, although the details about why alternative sentences are not economical remind us how much we miss when viewing the world from the vantage of an appellate judge.

The district court judges point out that if the Supreme Court does rule that the guidelines are unconstitutional, the sentences imposed in the meantime will all be remanded for sentencing anyway. Assuming that an "alternative" sentence exists somewhere in the record, it will not be formally recorded in the judgment but will be buried in the transcript somewhere, and the proceedings may not even be transcribed at that point. The defendant will also have the right to be present during the resentencing on remand, if only to hear the judge repeat the earlier "alternative" conclusion. Finally, a decision to impose an alternative sentence at this point requires all the parties to anticipate the facts that might be relevant under new law, and the procedures best suited to uncover the relevant facts. The attorneys will probably not be satisfied at some later date with the preliminary judgments they made on these questions the first time around, and will be asking to re-open some questions.

In short, given the paperwork involved in preparing for a resentencing, the necessity to schedule a hearing anyway, and the likely pressure from attorneys to reopen the merits, the judges believe that the alternative hearing will not truly save them much effort. Thus, for at least some districts in the Fourth Circuit, life goes on as if Blakely never happened ... for now.

UPDATE: This story from the Charleston Courier and Post describes the decision by Judge Duffy in the District of South Carolina to impose three separate sentences: a guideline sentence, a guidelines-as-advisory sentence, and a sentence ignoring only the sentence-enhancing components of the guidelines. The story notes that this is the first case to be sentenced in the district since Blakely. So it looks like the Fourth Circuit's advice is being heeded in some districts. What remains to be seen is which is truly the most efficient response to the current uncertainty.

August 12, 2004 at 07:15 AM | Permalink

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Comments

Federal Public Defender
I practice in the Fourth Circuit. I think the real danger with an alternative sentence is that it will take effect if the guidelines are declared unconstitutional. There is case law from the early guideline/pre-Mistretta era when the guidelines were under constitutional attck. Courts entered alternative sentences: under the pre-guideline scheme and the guideline sentence. The guideline/alternative sentence was contained in the judgement and commitment order. Courts ruled that that sentece became effective once Mistretta was decided; there was no need for re-sentencing; and no ability to appeal the alternative sentence at that point. It was just an administrative matter for BOP to implement the previously imposed alternative sentence. That's the danger here---those who get an alternative sentence may not get another chance (unless the Supreme Court takes a Shamblin approach rather than the Croxford approach which the Forth Circuit appears to assume). There are due process and effective assistance of counsel arguments that should be raised when an alternative sentence is imposed. My office is recommending that alternative sentences, if not to the defendant's liking, be appealed.

Posted by: Lou Newberger | Aug 12, 2004 8:03:44 AM

(Appellate defense atty): I thought that judges' oath of office required them to try their honest best to determine and then say what the law is, and then to implement the law in a decision. And that Article III of the Constitution prohibits advisory opinions. Don't those two propositions, taken together, rule out any "alternative" sentences, at least one of which is by definition *not* an application of what the judge believes to be the law, and which is *not* the ruling in any case or controversy?

Posted by: Peter G | Aug 12, 2004 11:23:40 PM

This may not be what the comments are for but if you would break down your blog into pages by date so that one does have to print the same data over and over. Inmates are receiving your blog by mail from there contacts that read and mail them the messages. They do not have access to computers. Thanks FRED

Posted by: fred wingfield | Aug 20, 2004 12:42:07 PM

This may not be what the comments are for but if you would break down your blog into pages by date so that one does have to print the same data over and over. Inmates are receiving your blog by mail from there contacts that read and mail them the messages. They do not have access to computers. Thanks FRED

Posted by: fred wingfield | Aug 20, 2004 12:42:14 PM

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