August 25, 2004
The Third Circuit chats about Blakely
In the world of sentencing, you can run, but you cannot hide from Blakely. Well, actually, the en banc courts in the Fourth and Sixth Circuits have been able to run and hide from a written opinion for some time, but I am sure a full account of their orders in Hammoud and Koch are coming real soon.
A full two months after Blakely was handed down, a handful of federal circuit courts — the 1st, 3rd, 10th and DC Circuits, by my count — have still managed to avoid any significant Blakely rulings to date. (The Federal Circuit, to my knowledge, does not have jurisdiction over any criminal cases, though I wonder if anyone out there is working on Blakely-related patent applications.)
The Third Circuit, however, is trying to get on with the business of deciding sentencing cases and has thus had to chat a bit on the record about Blakely. Specifically, in US v. Dickerson, 2004 WL 1879764 (3d Cir. Aug. 23, 2004), a case which is interesting in part for its discussion of guidelines departures, the Third Circuit dropped this noteworthy footnote:
We will address the Government's arguments regarding Dickerson's downward departure notwithstanding the fact that they involves sentencing issues that are completely based on the Federal Sentencing Guidelines, which have recently come under attack in the wake of the Supreme Court's decision in Blakely. We do so because the question here involves the application of a downward departure, rather than an upward departure or a sentencing enhancement. Thus, unless the entire Guidelines regime falls, the decision in Blakely is not clearly implicated here. Further, in response to questioning by the Court at oral argument, the parties conceded that no Blakely-related problems are likely to arise on the facts of this case.
Meanwhile, another decision from the Third Circuit this week, US v. Pepsny, 2004 WL 1873996 (3d Cir. Aug 23, 2004), includes this somewhat cryptic paragraph on Blakely:
In a notice to us subsequent to oral argument, [the defendant] DiFeo, citing Blakely challenges the nine-level increase to her base offense level for having caused losses in excess of $400,000. On appeal, however, DiFeo did not contest the computation of the dollar sums included in the amount of loss calculation (i.e., she did not dispute the propriety of the judge's fact-finding). Rather, she simply argued that these losses should not have been included in the calculation (i.e., she took issue with the application of the Sentencing Guidelines). Thus, while we have rejected DiFeo's attack on the District Court's Guidelines application, we have not said anything regarding the underlying factual determinations. Since we remand for resentencing, DiFeo can attempt to raise the Blakely issue in the District Court.
Finally, in the unpublished US v. Coplin, 2004 WL 1790169 (3d Cir. Aug. 09, 2004), the Third Circuit briefly discussed Blakely in the context of an Anders brief. Based on the defendant's various factual admissions, the court in Coplin explained that "without delving into the many complex questions raised by Blakely, we conclude that under any interpretation of Blakely, Coplin has no nonfrivolous ground for appeal." And at the tail end of a discussion of Apprendi and Almendarez-Torres, the Third Circuit added this entertaining tidbit:
We are absolutely bound by those decisions, for it is the "[Supreme] Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Even if we believe that the foundation of a prior Supreme Court decision is thoroughly undermined, it is up to the Supreme Court to complete the demolition of its own decision.
August 25, 2004 at 09:32 AM | Permalink
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I am about to move forward in an interesting M.D. PA case. Any insight would be appreciated.
Two brothers pled guilty to theft of shipments of computer parts. (both were involved in same crime) Brother 1 (My client) went to sentencing prior to Blakely. His crime had a base offense level of 4 and he received 13 points worth of enhancements for value and planning. He was sentenced to 18 months.
Due to a schedule conflict, Brother 2 was not scheduled for sentencing until a later date. Blakely intervened and Brother 2's sentence was postponed until September 7, 2004.
The Court has issued an opinion in Brother 2 case, following briefing on the issue, that the court will use the guidelines as guidelines only.
Now obviously, this means the court, if he felt like it, could sentence Brother 2 to a higher range, or up to the statutory maximum. However, it is believed Brother 2 will walk away with probation. (First offense for both brothers)
Brother 1 however, had not filed an appeal and his time limit ran before he came to me. I am planning to move for a reconsideration of sentencing, and make whatever other possible arguments regarding disparity of sentencing I can come up with.
Any excellent advice from people smarter than me? Anyone in the Middle District of PA that wants to be local counsel?
Posted by: Rob Ratliff | Aug 25, 2004 11:03:46 AM
Rob, what a fascinating factual situation (which almost sounds like a hypothetical I might create for my sentencing class). As you may know, arguments of what might be called "inter-defendant disparity" has not generally been allowed as a basis for a departure, but I'm not sure anyone has argued "intra-family disparity." And I also suspect few have yet had a chance to argue post-Blakely disparity. Amazing stuff.
Posted by: Doug B. | Aug 25, 2004 1:34:23 PM
It did seem an interesting factual issue. I would feel much better had this guy filed a timely NOA. But, as it stands I'll likely have to proceed under §2255, although I may try to throw in something relevant to §3582 or Rule 60(b), both favorites of jailhouse attorneys.
The matter is obviously complicated by the short sentence of my client. In normal circumstances an 18 month sentence would be nearly ran, by the time a § 2255 worked its way through the District Court docket. If Brother 2 does in fact receive a sentence of probation, I will of course move for bond pending resolution of the § 2255, but those never work.
Posted by: rob ratliff | Aug 25, 2004 2:38:46 PM
Have a look at US v. Lagiglio, 2004 U.S. Dist. LEXIS 14611 (E.D. IL July 29, 2004). Lagiglio was let out on bail pending his appeal based on Blakely.
I don't know when your client's NOA deadline was, but if it was after Blakely, there's a nice 2255 claim of IAC for failure to file an NOA. Also, if waiver of an appeal was not part of the plea agreement, as it sometimes is in fed cases (never here in Indiana that I have ever seen), then there's at least the argument that an appeal was expected. Additionally, if you go the route that the USSG are severable, then any upward departure offensive to Blakely might be just plain illegal.
I am still concerned that all the plain error analysis running around since Cotton runs right into Sullivan v. Louisiana. If the federal courts are so hot to say the USSG are indistinguishable in any principled way from the Washington State sentencing setup done in by Blakely, they might reasonably come to the conclusion that there is no way principled way to distinguish Blakely error from Sullivan error, which is structural and non-waivable. Blakely error is in fact worse than Sullivan error, because not only is the fact-finding done by the wrong standard, it's done by the wrong participant.
My two cents for tonight.
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