July 10, 2004
The story behind the story
To the list of famous names like Gideon, Miranda, Katz, Terry, Furman, McClesky that have shaped the modern criminal justice system, we now add Blakely. (Feel free to add the names I have missed in the comments.) In all that will surely be written about the Blakely case and its aftermath, we perhaps ought not forget the man, Ralph Howard Blakely, behind the now famous case that bears his name. However, this article about Ralph Howard Blakely's latest doings suggests we might indeed want to forget him very soon.
The question is when, not whether
As everyone knows, the Supreme Court will have to address directly what Blakely means for the Federal Sentencing Guidelines. The interesting question is not whether they will take on the issue, but when. In the comments, attorney Conrad Seifert reports that he filed "what may be the first post-Blakely Petition at the US Supreme Court in Restrepo v. US. It was docketed on July 9. It raises the footnote 9 issue, i.e. the constitutionality of the FSG regarding enhancements. NACDL is considering an Amicus Curiae brief."
Without knowing the facts of Restrepo I cannot make any predictions about the likelihood of a cert. grant there. But I would think the government might seek cert. in the Booker case, although I suppose it can be debated (perhaps in the comments here) which case and at what time it makes the most sense for the Supremes to get back in the mix.
Gearing up for the all-star event
I am already getting excited about the two all-star events planned for Tuesday. Of course, most of the country will be focused on the MLB All-Star game in Houston Tuesday night, but readers of this blog also know that an all-star line-up is scheduled to testify before the Senate Judiciary Committee about Blakely (background here). I've just received word that added to the roster for the hearing is William Mercer, US Attorney from Montana, who will serve as the DOJ witness. Mercer, also a contributor to FSR, is somewhat noted (some might say notorious) for his complaints about judicial abuse of downward departure authority. Prior to passage of the PROTECT Act and its Feeney Amendment, Mercer testified before the US Sentencing Commission about cases where judges "evaded" lawful guidelines by using their departure authority.
To add to the "pre-game" excitement, I can also pass along two letters addressed to the US Sentencing Commission, one from the Practitioners' Advisory Group and the other from the Federal Defenders, concerning Tuesday's hearing and recommendations to Congress.
UPDATE: Both of the letters to the Commission are fascinating (and short) reads, and each has distinctive themes. Here's a key section from the Defenders letter:
[W]e urge the Commission to ask Congress to amend 18 U.S.C. § 3553 and for emergency authority to implement the holding in Blakely to bring the federal sentencing guidelines into compliance with the Fifth and Sixth Amendments. We believe that can best be done by modeling the system that the state of Kansas adopted when faced by a ruling from its Supreme Court, which invalidated its sentencing guidelines for the same reason that the Blakely Court struck down the Washington state sentencing guidelines. That is, to provide for a jury determination beyond a reasonable doubt for “all facts legally essential to punishment.” Id.
We have attached what we believe is a workable recommendation to Congress to amend 18 U.S.C. § 3553. It is modeled on the legislative response in the state of Kansas. The Commission would additionally need to amend the guidelines accordingly. That would require, among other things, elimination of cross-references, elimination of a number of the real-offense characteristics of relevant conduct, and changes to Chapter Six. We believe the Commission should undertake such guideline amendments with the help of an Ad Hoc Advisory Group.
And here's a key passage from the Practitioners letter:
In light of the constitutional magnitude of the issues and their practical impact, we think the Commission should recommend that no immediate legislative action be taken. It took three years to consider and craft the federal sentencing guidelines and another fifteen years of practice and amendments to bring them to their current state. Little more than a week remains before Congress is scheduled to recess for the summer. This plainly is not enough time to carefully and thoughtfully design a constitutional federal sentencing system that preserves discretion and protects defendants’ due process rights. We do not believe that a viable solution can be crafted until the courts have first had a chance to work through the constitutional issues, and the potential options have been studied by an appropriate body with input from judges, defense lawyers, prosecutors and this Commission. While the courts are struggling with sentencing decisions in the short term, legislation will have only prospective impact. We fear that a short term solution, crafted in haste, may set the terms of the future. Therefore, we counsel caution and the time for full deliberation.
We are concerned that some of the proposals for interim legislative responses that have been proposed may not comport with the spirit or the letter of the fundamental Sixth Amendment right to a jury finding beyond a reasonable doubt granted in Blakely.
Assuming Blakely does invalidate part of the Federal Sentencing Guidelines (which right now is the consensus view despite Judge Easterbrook's game dissent in Booker), the next hard issue is the severability question: can you sever the unconstitutional parts of the guidelines and keep the rest of the system operative and legally binding or does the whole Guidelines Manual lose its legal force? Judge Cassell in Croxford holds, and the DOJ is arguing, that we cannot sever, while many other district courts have held that we can. Notably, Judge Posner in Booker explains that this issue ultimately "is a question of legislative intent," but then he punts the issue back to the district court.
In thinking about the severability issue, I've come to wonder about a few things:
(1) Which Congress's intent matters in answering the basic severability question? Do we look to the intent of the 1984 Congress that passed the Sentencing Reform Act? To the intent of the 1987 Congress that approved the initial Guidelines? To the collective intent of all the Congresses (Congri?) from 1988 through 2004 that continued to approve/authorize the current Guidelines and amendments thereto? And what effect, if any, would there be if the current Congress passed a resolution next week saying "We intended severability" or "We intended non-severability"? Finally, how do judges who do not even believe in considering legislative intent -- paging Justice Scalia -- start to answer the severability question when a statute is silent on the issue?
(2) Is the lawful application of the Guidelines even in cases with no upward adjustments or upward departures arguably just another severability question which calls for considering the intent of Congress? Judge Cassell in both Croxford and Thompson goes out of his way to stress that the Guidelines can still lawfully apply in some cases (those without upward adjustments requiring judicial fact-finding), and Judge Stewart in Montgomery makes the same point. Moreover, in Thompson, Judge Cassell quickly rejects the defendant's claim, based on concepts of equal protection, that because the federal guidelines are (according to Cassell) wholly unconstitutional in some case then they are inapplicable in all cases. But rather than having this claim sound in equal protection (which is a stretch), how about arguing severability and legislative intent. That is, could Thompson and others similarly situated assert that Congress would never have approved/accepted a sentencing scheme in which the Guidelines are completely inapplicable in some cases (i.e., those with even just one unenforceable upward adjustment), while fully binding in others (similar cases without one such adjustment)? After all, the whole purpose of the SRA was to create more uniform and consistent national sentencing law. In other words, if Judge Cassell (and DOJ) really think the applicability of the Guidelines is an all-or-nothing proposition for a particular defendant, doesn't the same logic support an argument that the Guidelines are an all-or-nothing proposition for all defendants?
If these queries make no sense, please blame fatigue.
Food for thought from Utah
I promised some more commentary about the rulings from Utah on Friday, and now I can finally deliver (background here). First up is the decision in US v. Montgomery, where US District Judge Ted Stewart finds upward enhancements and departures constitutionally problematic under Blakely and concludes that the proper course is to "continue to apply the sentencing guidelines, but without additional fact-finding by the Court that might result in an upward enhancement or departure."
In addition to noting that this case (with Croxford) now creates a district split concerning the proper remedy/recourse after finding Blakely problems with the federal guidelines, I also want to spotlight parts of the opinion where Judge Stewart suggests his ruling should not create massive problems for federal sentencing. Specifically, he states at p.8:
It is this Court’s experience that Blakely-implicated enhancement cases are among a small minority of cases. Therefore, the Court’s decision herein – and, indeed Blakely itself – applies only to a narrowly defined set of cases and does not affect the majority of criminal cases before the Court to be sentenced under the guidelines.
Though I won't dispute the accuracy of this assertion in Utah, I do not believe that across the country upward offense enhancements are at issue in only a "small minority of cases." Moreover, the Judge thereafter suggests at pp.9-10 that the government can readily cope with Blakely:
The Court does not believe its adherence to the approach set forth herein unfairly disadvantages the government. The government maintains numerous effective tools for the prosecution of criminal cases to permit appropriately severe sentences.... Indeed, Blakely set forth numerous options for the government, and the Department of Justice has set about developing methods for pursuing criminal prosecution, post-Blakely.
Though I bet many prosecutors would take issue with this rose-colored vision of the post-Blakely world, I think it is still valuable (and at least quite interesting) that this decision went to some lengths to argue the sky is not falling.
July 9, 2004
Weekend plans (help greatly appreciated)
1. Try to get an exact count of how many courts are on the record in written opinions declaring that at least portions of the federal sentencing guidelines are unconstitutional.
2. Try to get an exact count of how many courts are on the record in oral rulings from the bench declaring that at least portions of the federal sentencing guidelines are unconstitutional. (I heard a report just today that Judge Jose A. Gonzalez, Jr., from the S.D. Fla. declared the day after Blakely came down that the decision prevents a Judge from considering acquitted drug conduct. US v. Barfield, No. 03-CR-60014, (S.D. Fla. June 25, 2004). And, in the attached transcript from US v. Moran, Judge Robert Keeton of District of Mass. comes very close to such a ruling that part of the guidelines cannot be applied and he seems to indicate that Judge Tauro of his court has already so ruled.)
3. Try to find out if any judge other than Judge Cassell in Croxford has declared the entire system unconstitutional. My sense is most judges are picking "option 2" and partially applying the guidelines. (Note, Judge Cassell has issued an amended version of Croxford available here.)
4. Try to get a more definitive sense of how many states have "big" Blakely issues and also what is going on in state courts. E.g., Are sentencings being stayed? Are lawyers raising Blakely in many contexts?
5. Try to get some sleep and make nice to my family. ;-)
A great idea from the NACDL
E.E. (Bo) Edwards and Barry C. Scheck, President and President-Elect of the National Association of Criminal Defense Lawyers today invited the Justice Department and the Administrative Office of the United States Courts (A.O.) to join together with the defense bar to create an ad hoc study committee of judges, academics, prosecutors and defense lawyers to reconcile the federal sentencing system with Blakely.
This is a great idea, although I am inclined to note that a "study committee" already exists in the form of the US Sentencing Commission. But, since we've still not heard an official peep from the USSC as the guidelines burn, it make a lot of sense to create the committee that the NACDL recommends.
The 7th Circuit speaks!!
Per Judge Posner, with Judge Easterbrook dissenting, here is the opinion in US v. Booker. WOW, WOW, WOW!
UPDATE: I have just finished Judge Posner's (unsurprisingly brilliant) opinion for the majority in Booker. Here's his helpful concluding paragraph:
To summarize: (1) The application of the guidelines in this case violated the Sixth Amendment as interpreted in Blakely; (2) in cases where there are no enhancements—that is, no factual findings by the judge increasing the sentence—there is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety; (3) we do not decide the severability of the guidelines, and so that is an issue for consideration on remand should it be made an issue by the parties; (4) if the guidelines are severable, the judge can use a sentencing jury; if not, he can choose any sentence between 10 years and life and in making the latter determination he is free to draw on the guidelines for recommendations as he sees fit; (5) as a matter of prudence, the judge should in any event select a nonguidelines alternative sentence.
And now I've just finished Judge Easterbrook's (unsurprisingly brilliant and also cheeky) opinion in dissent. Here's his telling final paragraph:
Today’s decision will discombobulate the whole criminal-law docket. I trust that our superiors will have something to say about this. Soon.
The 11th Circuit speaks again!
Setting the pace from the other circuits, I just got word that the 11th Circuit now has a second Blakely opinions in the books. Here, in In re Dean, the 11th Circuit has held that Blakely cannot form the basis for authorizing a second or successive habeas filing. Apparently this is "another nationwide first," as far as we can tell.
The thrill ride continues (and Judge Cassell speaks again)!
I've just gotten word of two more major Blakely opinions, both from Utah and one from Judge Cassell of Croxford fame. First, in US v. Montgomery, we have US District Judge Ted Stewart astutely finding "significant that the Supreme Court refrained from the opportunity to strike the state statute [in Blakely] under its Sixth Amendment analysis but, instead, only found the upward departure based upon judicial fact-finding unconstitutional." He thus concludes that the "federal sentencing guidelines, themselves, do not run afoul of the Sixth Amendment. The problem lies in upward enhancements and departures, and their accompanying lack of a citizen jury 'check,' and the lack of application of the otherwise-required heightened standard of proof (beyond a reasonable doubt) that would be required in that setting." He then rejects the remedy of disregarding the guidelines altogether, and decides "this Court will ... continue to apply the sentencing guidelines, but without additional fact-finding by the Court that might result in an upward enhancement or departure that would result in a sentence above that which would otherwise apply under the guidelines, absent those findings."
Meanwhile, in US v. Thompson, US District Judge Paul Cassell rejects an interesting claim by the defendant that because the federal guidelines are unconstitutional in one case then they are inapplicable in all cases. Reiterating the limits in his own Croxford ruling, Judge Cassell explains that in the case at hand "there is no need for judicial factfinding beyond the facts necessarily contained in the indictment."
Both cases look very rich, and I hope to provide more commentary on them this afternoon.
More news from the front lines
Peter Goldberger, who has been a font of Blakely-related information, conveyed to me the following report from NY attorney James E. Long about another decision finding the Federal Sentencing Guidelines unconstitutional:
The Hon. Collen McMahon [of the Southern District of New York] ruled in my case today that the Blakely decision renders the Federal Guidelines unconstitutional. She adopted the rational of Judge Cassell in the Croxford decision. She did this despite the fact that I had a plea agreement admitting most of the enhancements (multiple guns, stolen gun). She stated that there should not be a pre-Blakely guideline and post-Blakely non guidelines. Client went from 37 months to 15 months. I took the approach ... that the advice in entering the plea agreement that the standard was preponderance was bad advice and therefore not a knowing and intelligent waiver. She seemed disposed to go along with that ... and then [said] the guidelines are unconstitutional for all and proceeded to fashion her own sentence making reference to how she could still consider all of the relevant facts and offender characteristics. She added that she would downward depart (which I could not do because of the plea agreement) based on family circumstances and went to 15 months and 3 year post release supervision.
In addition, in the shortest decision I've seen discussing Blakely, US District Judge Rya Zobel of the District of Massachusetts in US v. Mikutowicz, 2004 U.S. Dist. LEXIS 12516 (July 7, 2004), rejected a motion for re-sentencing because the defendant's "notice of appeal has effectively deprived this Court of jurisdiction." Along the way, however, the judge stated "since the sentence is based in part on facts determined by the Court, it may well be illegal".
And, finally, from a more traditional news source, here's an article from Connecticut discussing some high-profile sentences -- those given to Philip Giordano, the former mayor of Waterbury, who is serving 37 years for sexually abusing two preteen girls and to Joe Ganim, the former mayor of Bridgeport, who is serving nine years for corruption -- which may be impacted by Blakely.
July 8, 2004
More DOJ analysis and strategizing
I had heard that there was a longer DOJ memo which amplified points made in the now widely circulated July 2, 2004 from James Comey to all federal prosecutors (noted here). Another loyal reader has now obtained and passed along this DOJ memo, which is from Assistant AG Christopher Wray to all federal prosecutors. Despite the fact that the memo says it is attorney work product which should not be distributed outside DOJ, the fact that I got the memo suggests this memo is starting to make the rounds. And, on the assumption that one of my loyal readers will represent me if I get sued for this post, I here provide a copy for downloading:
The hits just keep on coming
Many thanks to my many thoughtful readers who pass along big news as it breaks. Here's the latest: Senior US District Judge Peter Dorsey of the District of Connecticut has issued a memorandum opinion adopting what Judge Cassell deemed in Croxford the “the second option” -- that is, finding that upward enhancements are barred by Blakely but that, under the maxim that courts must avoid constitutional consequences at all costs, the Guidelines as a whole need not be found unconstitutional. The case is US v. Toro, 3:02CR362(PCD), and it is linked here:
The 11th Circuit Speaks!!
I just got word of what I believe is the first federal Court of Appeals decision discussing Blakely. Based on a super-quick read, it does not seem to be a blockbuster, because the 11th Circuit is just saying here in US v. Spero that Blakely "does not undermine the validity of minimum mandatory sentences, at least not where the enhanced minimum does not exceed the non-enhanced maximum." Nevertheless, it still seems that the 11th Circuit today gets the honor of being, in this way, the first circuit.
Senate hearing plan
I have heard from various sources some rough particulars about what will likely be an amazing hearing next Tuesday before the Senate Judiciary Committee (background here). Apparently there will be two panels: the first panel will have (not-yet-determined) representatives from the DOJ and the USSC; the second panel will be Ronald Weich, Alan Vinegrad, Professor Frank Bowman, and Professor Rachel Barkow.
Because I know and admire greatly the work of the folks on the second panel --- all of whom, I am proud to say, are great friends of and contributors to the Federal Sentencing Reporter --- I feel confident that the senators will be hearing lots of wise advice. I really hope they will listen.
And now from the business desk...
Today has proven to be a big day in the business crimes arena, and I cannot help but look at everything through the lens of Blakely. First, I wonder if anyone has had a chance to review the Ken Lay indictment to see if it is "Blakely-friendly." (As the Blakely Blog reports, Professor John Coffee this morning on NPR had to explain the chaos created Blakely when asked about Lay's possible sentence.) Second, Marcia Oddi at the Indiana Law Blog sensibly askes "Will Blakely impact Martha Stewart sentencing?"
Finally, in a related story which could get overlooked in the Blakely mania, the AP reported late yesterday that President Bush issued full pardons in two fraud cases from Oklahoma and Wisconsin. Here's a link to the brief report, which says that these pardons are the 18th and 19th of Bush’s presidency. The newly pardoned are Craven Wilford McLemore of Oklahoma, who served six months in prison, 18 months probation and was fined $10,000 in February 1983 for a fraud conspiracy conviction, and Anthony John Curreri of Wisconsin, who was sentenced to three years’ probation for mail fraud in March 1976. Anyone know anything more about these cases or offenders or why these pardons were granted now?
UPDATE: As discussed in this Newsday article, Martha Stewart's lawyers moved, citing Blakely, to have U.S. District Court Judge Miriam Goldman Cedarbaum declare the federal sentencing guidelines unconstitutional. The article asserts that, if granted, "the motion could mean that Cedarbaum would have more discretion in deciding a prison sentence that is substantially less than the current estimated range of 10 to 16 months and instead impose a term of as little as probation."
Still more great Blakely resources
In addition, Jason Hernandez over at the Blakely Blog continues to do a great job staying on top of all the hot Blakely news.
UPDATE: The Federal Public Defender for DC has an updated Blakely Resource Page, which now includes additional sample briefs for defendants and this Memorandum On The Retroactive Application Of Apprendi.
July 7, 2004
Down goes FSG, down goes FSG....
Proving he has a lot more energy than me, Jason Hernandez over at the Blakely Blog has a series of thoughtful posts about the DOJ materials. In addition, he has this breaking news that "United States District Judge Walter Smith, Jr., Chief District Judge of the Western District of Texas, [has] declared the Sentencing Guidelines unconstitutional." Apparently there is no written opinion yet, but I'll provide an update when able.
UPDATE: As the comments reveal, according to attorney Jay Baker, Judge Terry Kern of the U.S. District Court for the Northern District of Oklahoma has also now held the guidelines unconstitutional.
P.S. I hope there are a few boxing fans out there who get the homage in the title of this post.
More from DOJ
From a truly anonymous source — Deep Throat, again? — I just received copies of four DOJ strategy memos/briefs. I've provided links to all four below (and advanced apologies if the WordPerfect format presents any challenges for you):
I've not yet had a chance to look through these closely, but they look interesting from a quick read.
Another Blakely Blog
I just received this link to another Blakely Blog, which is "dedicated to collecting opinions, articles and scholarly thoughts regarding the Supreme Court's decision in Blakely v. Washington." The blog owner -- Jason Hernandez -- quaintly describes himself as "3rd year law student at Columbia Law School whose Note is in serious jeopardy of entering the circular file following Blakely." In addition to providing useful Blakely resources and news, the blog includes this wonderful query: "I wonder what Judge Frankel would have said about all of this."