« July 11, 2004 - July 17, 2004 | Main | July 25, 2004 - July 31, 2004 »

July 24, 2004

Sense and Severability

As I have spotlighted before (e.g., here and here and here), the so-called severability question is extremely important and extremely challenging after one draws the (simple?) conclusion that Blakely renders portions of the federal guidelines unconstitutional. With the exception of the Fifth Circuit and a few district courts, there is a near consensus that parts of the federal guidelines are unconstitutional. However, there is a multi-directional split on the tough severability questions which follow that conclusion.

Recall that the Seventh Circuit in Booker punted the severability question back to the district court, although essentially ruled that the guidelines were still operative and binding in cases without "Blakely" factors (background here). The Ninth Circuit in Ameline held that the guidelines were severable (background here), while the Eighth Circuit said in Mooney that they were not (background here). The Sixth Circuit's now-vacated opinion in Montgomery seemed to sever severability in its own distinctive way (background here), and the district courts have been both figuratively and literally all over the map.

Though not producing one answer, all these decisions in my view do share one attribute: the severability analysis in all these cases seems hurried and not sufficiently attentive to all the nuances in play. The Ameline court presented the most thorough severability discussion, but it still did not cover all the issues important in this analysis. Coincidentally, landing in my e-mail in-box today was a fantastic brief addressing severability issues submitted in court yesterday by the Federal Defender Services of Wisconsin. In a cover note, the brief is described as addressing "an interesting aspect of the severability question: where do we focus the severability analysis -- on the guidelines or on the SRA? And if the focus should properly be on the SRA, what happens next? Is supervised release gone? Does parole come back into play?"

The cover note alone piqued my interest, and reading the brief was a true eye-opener. Nearly every section raises an important and nuanced point about how complicated severability is in this setting, and the brief closes with this blockbuster paragraph:

If the SRA itself is non-severable, then sentencing really does change dramatically. Determinate sentences are gone; parole is back. Supervised release is no more. A variety of other innovations under the SRA disappear. Sentencing appeals nearly disappear after two decades, with the usual appellate jurisdiction rolled back. The government once more shares Rule 35(b) with the defense. It is 1983 again.

I think this brief is an absolute must-read for everyone thinking about these severability questions:
Download blakely_severability_brief.pdf

July 24, 2004 in Blakely in Sentencing Courts, Federal Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Good morning, Blakely

Everything Blakely calms down a bit for the weekend (thank goodness!), but there are still interesting tidbits of information from some newspaper articles discussing recent activities in the Sixth and Eighth Circuits. For example, this article describes DOJ's decision to agree to the sentence reduction sought by Tiffany Harris Montgomery, which in turn led her attorney to seek to drop her appeal in the Sixth Circuit. Still unclear is whether the Sixth Circuit is still seeking to expedite consideration of another Blakely case, since in the words of Gregory Van Tatenhove, US Attorney for the Eastern District of Kentucky, "we're back to square one in the 6th Circuit."

Perhaps even more consequential news comes from this article which, though primarily about the Eighth Circuit's Mooney decision, notes a potentially important district court ruling (and one that I had not yet heard about). The article reports:

Earlier this week in St. Louis, U.S. District Judge Jean Hamilton applied the Blakely ruling.... Hamilton sentenced drug dealer Keith Mosley to 87 months in prison instead of following guidelines that called for a term of 151 to 188 months based on past convictions that prosecutors said made him a career offender. The defense complained that no jury had made such a determination.

Though I am hesitant to put too much stock in a newspaper report of a case holding — especially when the report is in an article that elsewhere mis-names Judge Diana Murphy "Linda" — this ruling by Judge Hamilton could be quite significant if she ruled that there were "Blakely factors" implicated by certain criminal history determinations.

Meanwhile, this article from the ABA Journal got me wondering whether the Blakely decision could have been clearer if SCOTUS had the assistance of 10 additional justices. As Arsenio Hall used to say, "Things That Make You Go Hmmm..."

July 24, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

No waivering on waiver

With all the big news coming from federal circuit courts and even some state courts this week, it has been challenging to keep up with the still steady flow of federal district court decisions on Blakely. Throughout the weekend, I hope to spotlight some issues gurgling through important district court opinions (and I may also try to do a rough head count of district court rulings concerning constitutionality and severability).

For example, the decision of US District Judge Joseph Bataillon in US v. Terrell, 2004 US Dist. LEXIS 13781 (D. Neb. July 22, 2004), merits mention in part because of its thoughtful discussion of certain important waiver issues. In footnote 3, Judge Bataillon asserts that:

a defendant [may] waive the right to a jury trial and to consent to factfinding by the court, [but such] judicial factfinding must still satisfy the standard of "proof beyond a reasonable doubt." Simply put, the standard of proof is not the defendant's to waive; it is a burden placed on the government, without which a conviction cannot be obtained.

In addition, Judge Bataillon in the same opinion rejects the claim that a pre-Blakely plea agreement waives of the right now to raise Blakely issues:

the court rejects the government's contention that the plea agreement precludes the defendant from making [Blakely] objections. At a minimum, the defendant must understand the "critical" or "essential" elements of the offense to which he or she pleads guilty. The defendant could not have knowingly waived rights that neither he nor this court knew he had before the Blakely decision.

Though the fate of Terrell might be in question following the Eighth Circuit's ruling in Mooney, the Terrell decision merits praise for spotlighting and resolving some of the on-going waiver concerns.

July 24, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts | Permalink | Comments (2) | TrackBack

July 23, 2004

Helpful weekend reading

If you're like me, you already have a big stack of weekend reading. Fortunately, I can here provide some materials to help everyone sort out all of the post-Blakely judicial fireworks. Specifically, now available here for download are the latest version of the fantastic articles by Professors Bibas and King & Klein, both of which take stock of the the post-Blakely world and help sort through the seemingly endless array of legal issues now in play:
Download bibas_latest_blakely_efforts.pdf
Download latest_king_klein_beyond_blakely.pdf

As noted in these drafts, both of these articles will be appearing in a soon-to-be published special issue of the Federal Sentencing Reporter. Also scheduled to appear in that Issue of FSR are materials from Professors Rachel Barkow, Frank Bowman, Mark Osler and others.

At this link you can pre-order this special FSR Blakely issue, as well as obtain a general subscription to FSR. In addition, at this link you will find a place to sign up to receive an e-mail alert when new issues of FSR come online. Registration is free.

UPDATE: I have also come across some new additional resources available here from the folks at FDAP, including a new and nicely structured Blakely page from Appellate Defenders, Inc. of California.

July 23, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

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 in Blakely Commentary and News | Permalink | Comments (6) | TrackBack

The Eighth Circuit speaks!!

I just got word that in US v. Mooney, the US Court of Appeals for the Eighth Circuit in a per curiam decision from a panel with Judges Murphy, Lay, and Bright, affirmed the defendant's convictions for mail fraud, securities fraud and money laundering and then "remand[ed] Mooney’s sentence to the district court for consideration of the issue he raises under Blakely v. Washington."

In a separate opinion, Judge Lay and Judge Bright hold that the federal Sentencing Guidelines are unconstitutional because they violate a defendant's Sixth Amendment right to have a jury find beyond a reasonable doubt and all facts legally necessary to his sentence, and the court adopts the approach set forth in US v. Croxford (D. Utah June 29, 2004) treating the Guidelines as non-binding but advisory, unless the defendant consents to a Guidelines sentence; on remand the district court should exercise its sound discretion to resentence defendant within the statutory minima and maxima of the offenses for which he was convicted. Judge Murphy — who was the Chair of the US Sentencing Commission until a few months ago — dissents from the majority opinion holding the guidelines unconstitutional.

UPDATE with analysis: Though not making as many important rulings as the Ninth Circuit decision in Ameline (details here and here), this decision in Mooney is fascinating and important in large part because of the cast of characters and also the factual setting. Though deeper commentary will follow late tonight, it bears note now that Judges Bright and Lay are both long-standing critics of the federal guidelines. See, e.g., Stith & Cabranes, Fear of Judging pp. 195-96 (1998) (lengthy endnote detailing copious (pre-Feeney) judicial criticism of the guidelines). And, as noted above, Judge Murphy served with distinction as the head of the USSC for over four years until resigning earlier this year. And, just to make the story richer, the sentence being reviewed was imposed by Judge James Rosenbaum, a name well known to those who closely follow federal sentencing reform (background here).

Of course, also in this interesting cast of characters is the defendant, Michael Mooney, who is not a low-level drug dealer but a former corporate vice-president convicted of insider trading. The decision in Mooney shows how complicated the guidelines make sentencing for economic crimes and also the challenges likely posed if complex financial issues have to be resolved by juries in the post-Blakely world. The decision also reveals — though it does not discuss at any length — the potentially very important and very challenging distinction between sentencing issues of law (what legally qualifies as "gain") and sentencing issues of fact (how much "gain" was in fact realized).

July 23, 2004 in Blakely in Appellate Courts | Permalink | Comments (4) | TrackBack

More Sixth Circuit action in Montgomery?

I have heard from a few sources that the Sixth Circuit did something today (en banc?) concerning the Montgomery decision. But I cannot yet find any tangible evidence of this. (Howard Bashman, where are you when I need you?) I am about to be off line for a meeting, but I hope readers in the know will use the comments to provide information and links to any news.

UPDATE: According to Jason Hernandez at the Blakely Blog, "the defendant and the government have joined in a Rule 42 of the Federal Rules of Appellate Procedure motion to dismiss the appeal in United States v. Tiffany Montgomery, No. 03-5256." I assume this motion will be granted, though I know that the Sixth Circuit has asked for expedited breifing in at least one other case that presents Blakely issues more cleanly.

July 23, 2004 in Blakely in Appellate Courts | Permalink | Comments (3) | TrackBack

Read all about it...

Howard Bashman at How Appealing yet again does a fine job of collecting the morning Blakely news here. Of particular note is this Houston Chronicle article exploring the impact of Blakely on indictment practices, this Sacramento Bee story about what the Ninth Circuit's Ameline decision could mean for "hundreds of crooks," and this Pittsburgh Post-Gazette story about the filing by local judge, who last year pleaded guilty to a Hobbs Act violation for extorting cash from a lawyer with cases pending before him, of a "handwritten motion to vacate his 2003 sentence of 27 month" based on Blakely.

July 23, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Blakely's impact on pleas and bargaining

Informed observers of the criminal justice system know that, at least before Blakely, criminal trials with juries were rare events. The latest data show that 97% of all federal convictions are obtained through guilty pleas, see United States Sentencing Commission, 2002 Sourcebook of Federal Sentencing Statistics, Figure C (May 2004), and state statistics are similar (though generally not as extreme).

Though the Blakely court did not cite these statistics directly, Chief Judge William Young of the US District Court of the District of Massachusetts highlighted his concerns about plea practices in US v. Green, a 177-page magnum opus opinion which found the federal guidelines unconstitutional just a few days before Blakely was handed down (background here). Judge Young asserted that "the Sixth Amendment guarantee of trial by jury has been eroded as never before in the history of our nation":

the Department [of Justice] is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate that the focus of our entire criminal justice system has shifted far away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen.

The future after Blakely is so uncertain in part because it is unclear how the High Court's decision will impact our system's heavy reliance on bargained justice. Will there be more trials? Should there be? Will guilt/innocence be at issue in more trials or will we just have greater jury consideration of sentencing factors?

As we ponder these questions, we can and should examine and monitor how Blakely may be impacting both trial and plea practices. For example, here's a newspaper story this morning from Tennessee in which a local DA reports that the "Blakely case affected [his] decision to accept a plea agreement" in a homicide case. I hope the media, along with the academy, will continue to explore what Blakely might really mean for trial and plea practices. (This Baltimore Sun article deserves praise for its recent look at these issues.)

July 23, 2004 in Blakely Commentary and News | Permalink | Comments (3) | TrackBack

July 22, 2004

Justice O'Connor speaks!!

According to this news report, Justice O'Connor spoke briefly about Blakely at the Ninth Circuit conference:

"It looks like a No. 10 earthquake to me," O'Connor told the annual conference of the 9th U.S. Circuit Court of Appeals.... [She also said] she was "disgusted in how we dealt with it."

July 22, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

Fascinating news from Tennessee

Apparently I was on to something when I said earlier that today was going be a big day for Blakely in the states. In addition to all the developments reported earlier today, I just found this breaking news report from Tennessee:

By Executive Order, Governor Phil Bredesen today named a panel of criminal justice officials charged with making recommendations to preserve the use of enhancement factors in Tennessee’s criminal sentencing laws, in light of [Blakely]. The Governor’s Task Force on the Use of Enhancement Factors in Criminal Sentencing will determine if a special session of the General Assembly is necessary to protect the Tennessee Criminal Sentencing Reform Act called into question by the ruling and will determine what legislation, if any, might be necessary, officials said.

The newspaper article linked above is worth a read, in part because it includes the full text of the Governor's executive order. It also details the composition of the TFUEFCS (I made that acronym up myself):

The 13-member Task Force on the Use of Enhancement Factors in Criminal Sentencing will consist of the Attorney General and Reporter or his designee, the Commissioner of the Department of Correction, the Chairman of the Board of Probation and Parole, as well as one member from each House of the Legislature, to be appointed by the Speakers. Eight additional members will include at least one each of the following groups: appellate judges, criminal trial judges, general sessions court judges, district attorneys, public defenders, criminal defense lawyers and victims of crimes. [COMMENT: What?? No law professors?? Geez, we get no respect.] The Governor shall appoint a Chair from among the members, who will appoint five (5) ex-officio, non-voting, members to serve in an advisory capacity. The Task Force will report to the Governor no later than August 27 on whether a special session of the Legislature is necessary to revise the state’s sentencing laws. The group is also charged with recommending legislation even if it’s determined a special session is not necessary. In that case, the panel will have until November 15 to recommend legislation for next year’s session of the Legislature.

July 22, 2004 in Blakely in the States, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

What should Congress be doing?

Various folks I have spoken with today have shared my puzzlement over the Senate's quick consideration and passage of a "Concurrent Resolution" urging quick Supreme Court action on Blakely (basics here, commentary here). Helpfully, in the comments of a prior post, a reader pointed me to this link, which has the remarks of Senators Hatch and Leahy in support of the resolution. These remarks are quite thoughtful and informative, and they essentially summarize some conclusions that seemed to be drawn from last week's Senate Judiciary Committee hearing.

Helpfully, the law school academy is hard at work developing ideas and suggestions for when Congress is ready to jump fully into the Blakely pool. Specifically, I am pleased to be able to post two distinct recommendations for how Congress should respond to Blakely from Professors Albert Alschuler and Mark Osler. Both documents thoughtfully examine where we are and need to go in the world of federal sentencing, though they produce significantly different recommendations. Both efforts are required reading for anyone thinking seriously about appropriate legislative reponses to Blakely.
Download alschuler_blakely_response.doc
Download osler_on_the_blakely_problem_and_the_3x_solution.doc

July 22, 2004 in Blakely Commentary and News, Blakely in Legislatures, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

More state Blakely news in Minnesota and elsewhere

After Wednesday was a huge Blakely day in the federal system, it looks like today might be dominated by state news (and particularly by northern states starting with an M). As first reported here, the Minnesota Court of Appeals issued the state's first major Blakely ruling ealier this week in the course of overturning a sex offender's 40-year prison sentence. To quote Paul Harvey, here's "the rest of the story":

In State v. Whitley, the Minnesota Court of Appeals holds that the findings of fact under Minnesota's pattern sex-offender statute need now be proved to a jury beyond a reasonable doubt. As noted in the very helpful e-mail report to me about the case:

Interestingly, the Court indicates that Apprendi and a Minnesota Supreme Court case called Grossman, and not just Blakely, dictate this result. The remand instruction is cryptic, as Minnesota has no system of sentencing juries or anything of the sort (at least not yet).

In news from states not starting with an M, this well-done article from the Knoxville News-Sentinel reports on a Tennessee decision from an intermediate appellate court which reduce a defendant's sentencing by a year in a child abuse case following Blakely.

And, Marcia Oddi over at the Indiana Law Blog has noteworthy posts here and here about the likely impact of Blakely on Indiana state sentencing.

July 22, 2004 in Blakely in Appellate Courts, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

The Michigan Supreme Court speaks!!

We now have what I believe is the first state Supreme Court decision to expressly consider Blakely. Today in Michigan v. Claypool, the Michigan Supreme Court articulated the view (in footnote 14) that Michigan's guideline scheme operates in a manner that avoids Blakely problems:

Michigan ... has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law. MCL 769.8. The minimum is based on guidelines ranges.... The trial judge sets the minimum but can never exceed the maximum (other than in the case of a habitual offender, which we need not consider because Blakely specifically excludes the fact of a previous conviction from its holding). Accordingly, the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment.

In a separate opinion concurring in part and dissenting in part, Chief Judge Corrigan suggests that Blakely matters in Michigan may not be so simple:
I agree with the majority that the recent United States Supreme Court decision in Blakely v Washington, does not invalidate Michigan’s indeterminate sentencing scheme as a whole. Nonetheless, the majority’s sweeping language regarding judicial powers to effect departures (not limited to downward departures) will invite challenges to Michigan’s scheme; it appears to conflict with principles set out in Blakely.

Here's the full opinion for your reading pleasure:
Download michigan_claypool_decision.pdf

There are additional opinions and issues of note in Claypool, which looks like a very interesting state guideline case wholly apart from its encounters with Blakely. Because I am not well versed on Michigan state law —indeed, there may be a clause in my Ohio State contract which legally forbids me from thinking too much about anything Michigan — perhaps readers more familiar with Michigan's sentencing scheme can provide some immediate commentary on this decision.

UPDATE: In this article discussing the Claypool decision, Jim Neuward, director of the State Appellate Defender Office, says "It's nowhere near as simple as the court thinks." said

July 22, 2004 in Blakely in Appellate Courts, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (33) | TrackBack

Wednesday's work by the Legislative Branch

Perhaps tired of standing on the sidelines, Congress also got into the act on Wednesday through the Senate's consideration and passage of a "Concurrent Resolution" urging quick Supreme Court action on Blakely (background here). A quick read of the document makes it seem harmless enough; it concludes by asserting the "sense of Congress that the Supreme Court of the United States should act expeditiously to resolve the current confusion and inconsistency in the Federal criminal justice system by promptly considering and ruling on the constitutionality of the Federal Sentencing Guidelines." Though the idea of one branch ordering another to act quickly seems a bit unsavory to me, I am disinclined to complain about Congress joining lower courts and observers in pleading for the Supreme Court to move fast.

But I can complain -- or at least question -- some of the language tucked into the resolution. Specifically, consider Paragraphs 5 and 6:

... [para 5] Whereas the statutory maximum penalty is the maximum penalty provided by the statute defining the offense of conviction, including any applicable statutory enhancements, and not the upper end of the guideline sentencing range promulgated by the Sentencing Commission and determined to be applicable to a particular defendant;
[para 6] Whereas both Congress and the Sentencing Commission intended the Federal Sentencing Guidelines to be applied as a cohesive and integrated whole, and not in a piecemeal fashion;...

This language jumped out at me because Paragraph 5 seems to adopt concepts and terminology from Judge Easterbrook's dissent in Booker in an effort to distinguish the federal guidelines from the Blakely holding. Whether this resolution and its language will matter one whit to the Supreme Court seems unlikely, but it is interesting that Congress is using Paragraph 5 of the resolution to try to shield the federal guidelines from Blakely's reach. And then, as Marty Lederman at the SCOTUSBlog has already noted here, Paragraph 6 seems to be speaking to (and trying to resolve) the issue of severability.

In short, the language of Paragraphs 5 and 6 is clearly crafted to influence the on-going consideration of the very two issues the High Court will face when it takes a federal Blakely case. And my first reaction is to complain of untoward congressional meddling; but perhaps a healthy perspective would lead me to call all this appropriate inter-branch dialogue.

July 22, 2004 in Blakely in Legislatures | Permalink | Comments (1) | TrackBack

Wednesday's work by the Executive Branch

As if I wasn't already hogging the faculty printer, a few hours after Ameline comes down I get six large pdfs with the SG's filings seeking cert. in Booker and Fanfan (basics here). Helpfully, Marty Lederman at the SCOTUSBlog has this post and this post, while All Deliberate Speed has this post, discussing the way the SG is coming to the High Court with Blakely issues. In addition, here's Thursday's NY Times article covering the SG filing.

Though the SG's case choices might be debated, I am now much more concerned about the way the severability question is framed. Here's the key question the SG wants answered if the Supreme Court decides Blakely applies to the federal guidelines:

whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.

Cert. question no. 2 in both Booker and Fanfan (emphasis added).

I have highlighted part of the question because it seems to take as a given that the guidelines are readily applicable in a case in which the Guidelines would not require the court to find a sentence-enhancing fact. DOJ and the USSC and many judges, such as Judge Cassell in his decisions in Croxford and Thompson (background here), have asserted that even if the Guidelines are wholly inapplicable in cases that involve so-called "Blakely factors," they are still wholly applicable in cases that do not involve "Blakely factors."

However, as I have argued 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), it does not seem sound to divide up the severability issue this way. I highly encourage everyone to read Judge Presnell's opinion to see how forcefully he argues that if the guidelines are wholly inapplicable in any case, then they should be deemed wholly inapplicable in every case even if the case does not involve any "Blakely factors."

I am concerned that the way the SG has framed the severability question in the cert. petitions (due to the language in bold noted above) might prevent the High Court from answering all aspects of the severability question. But perhaps those familiar with Supreme Court practice can tell me not to worry because the Court can ultimately do whatever it wants. Marty Lederman's updated post here gives me some comfort.

July 22, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Wednesday's work by the Judicial Branch

After a seemingly calm Blakely morning, the afternoon started its shift into warp speed with news that the Ninth Circuit had a major Blakley ruling in US v. Ameline (basic details here). The Ameline ruling is major first and foremost because it represents the third appeals court -- after the Seventh in Booker and the Sixth in Montgomery (though that panel decision has since been vacated) -- to declare aspects of the federal sentencing guidelines unconstitutional due to Blakely.

Though third in time, Ameline is by far the biggest circuit ruling to date because it addresses (though sometimes obliquely) so many more issues than any of the other circuit rulings. This post over at All Deliberate Speed provides highlights of ground covered in Ameline, and this article from law.com is also very informative.

Most critically, the decision speaks directly and thoughtfully to the severability issue -- rather than punting as was done in Booker. The Ameline court draws on canons of construction and congressional intent to conclude the guidelines are severable. See, e.g., slip op. at p. 33 ("the government has failed to overcome the presumption in favor of severability"). I am not sure the court really loved this conclusion, but it was clearly chary about declaring the whole guideline structure unconstitutional. See, e.g., slip op. at p. 30 ("We are reluctant to establish by judicial fiat an indeterminate sentencing scheme.").

Interestingly, though my own impression is that district courts to date have been fairly evenly split on the severability question, the Ninth Circuit implies in footnote 2 that it is adopting the majority rule. Indeed, on Wednesday, I received three new district court opinions declaring the guidelines unconstitutional, two of which found the guidelines not severable, Compare US v. Marrerro, 04 Cr. 0086 (S.D.N.Y. July 21, 2004) (Rakoff, J.) (not severable) and US v. Sweitzer, Cr-03-087-01 (M.D. Pa. July 19, 2004) (Rambo, J.) (same), with US v. Lynch, 03-CR-137-K (N.D. Ok. July 2004) (Kern, J.) (severable).

There is a lot more which can and should be said about Ameline, but I've got two other branches to get to tonight. Nevertheless, I see two additional big elements in the decision: (1) the court expressly sanctions the use of a sentencing jury to find aggaravating sentencing facts (see slip op. at 34; see also background here), and (2) the court implicitly holds that a defendant can waive his right to a jury, but cannot "waive down" the burden of proof from beyond a reasonable doubt to preponderance (see slip op. at 34 n.19).

July 22, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Questions as we branch out

I will have a lot to say in a series of posts about the Blakely work of each of the branches on Wednesday. But a few questions jumped to mind as I was reviewing the day's events:

1. What is the shortest period of time between a Supreme Court decision and the filing of a cert. petition in a subsequent case by the United States seeking clarification of the decision's meaning or reach? The SG's filings on Wednesday came only 27 days after Blakely was handed down. Is that some kind of a record? Where's the SCOTUS version of Tim Kurkjian when I need him?

2. How often does Congress pass joint resolutions and have they ever had any consequential legal impact? More specifically, has Congress ever previously passed a resolution to tell another branch of the federal government to do its job more quickly?

July 22, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

July 21, 2004

Congress clears its throat!!

Though I have not gotten official word, I think today we have had a three-branch trifecta. It is, of course, now old news that the judicial branch spoke up again through the Ninth Circuit's decision in Ameline (here), and we also now have heard from the executive branch through the SG's papers filed with the Supreme Court seeking review in Booker and Fanfan (here).

Apparently not wanting to be left out of all the action, it seems the legislative branch has also been busy. I have now heard from two sources that Congress is working on a "Concurrent Resolution," through which Congress will express its collective view that the US Supreme Court should act expeditiously to resolve the confusion caused to the criminal justice system by Blakely v. Washington.

I will post more on this front and provide commentary when possible. But, after quite a day, it is time for a break.

UPDATE: I have received copy of the resolution which has apparently already been passed by the Senate and likely will be passed by the House before the end of this week (or so I am told). Here's the text:
Download senate_resolution.pdf

July 21, 2004 in Blakely in Legislatures | Permalink | Comments (3) | TrackBack

The Solicitor General Speaks!!

Re-load the paper in your printers, because I have been lucky enough to receive pdf copies of the documents that United States has filed in the Supreme Court today seeking expedited review of US v. Booker and US v. Fanfan!! It appears that US v. Booker will be assigned docket number 04-104, and US v. Fanfan will be assigned docket number 04-105.

Here are the Booker documents (including the joint motion to expedite):
Download booker_fanfan_motion_to_expedite.pdf
Download Booker.Petition.pdf
Download Booker.App.A.pdf

Here are the Fanfan documents:
Download FanFan.Petition.pdf
Download FanFan.Appendix.pdf
Download fanfan_app.attach.16-21.pdf

UPDATE: the fine folks over at at the SCOTUSBlog have, as usual, all the goods on all the Supreme Court doings, including a cool audio file.

July 21, 2004 in Blakely in the Supreme Court | Permalink | Comments (5) | TrackBack