July 31, 2004
District Court round-up
With all the appellate court fireworks recently (and more to come next week with an expected Supreme Court cert. grant and an en banc hearing in the Fourth Circuit), it is now easy for district court decisions to get lost amidst all the activities. But there is still a steady stream of important district court rulings which are helping to define the look of, and frame debates in, the post-Blakely world. Though this quick summary only gives some highlights, it is a reminder of the rich and interesting work being done by district courts during this post-Blakely period of uncertainty.
US v. Hankins, 2004 WL 1690128 (D. Mont. July 29, 2004), is a strange decision because Montana Chief US District Judge Donald Molloy comprehensively discusses pre- and (some) post-Blakely caselaw, but he does not mention the Ninth Circuit's decision in Ameline (which I believe is controlling precedent he must follow). I am inclined to speculate that Judge Molloy completed this opinion as early as July 10, though it carries a date of July 29; perhaps decisions from Big Sky country get filed very slowly. The Hankins decision is also noteworthy, and a bit peculiar, because of how Judge Molloy splits the Blakely baby. He concludes:
If the facts that adjust a base offense level upward are admitted to by the defendant, the Sixth Amendment is not offended. If the facts that adjust a base offense level upward are not elements of a separate crime, can be fairly inferred from the facts admitted to by the defendant, and do not raise the upper guideline range above the maximum sentence allowed by the statute establishing the offense, in my view a judge may find the facts by a preponderance of the evidence without running afoul of the Sixth Amendment. On the other hand, if the facts adjusting a base offense level upward are traditionally elements of a separate crime, and are not admitted to by the defendant, nor stated by the government in its offer of proof and undisputed by the defendant, nor fairly inferred from those admitted-to facts, I understand Blakely to hold that the Sixth Amendment requires those facts to be found by a jury.
US v. Lauersen, 2004 U.S. Dist. LEXIS 14491 (SDNY July 29, 2004), is interesting because District Judge William Pauley confronts Blakely in the context of a bail motion. Here are the highlights:
Lauersen's contention that he is not a flight risk rests on the assumption that Blakely invalidates judicial factfinding for sentencing enhancements under the Guidelines. From that platform, Lauersen contends he has completed any term of imprisonment that can be imposed on him at resentencing because Blakely caps his Guidelines sentence at 21 months. Thus, he asserts that the risk of flight has dissolved. ...
If Blakely applies to the federal Guidelines, then it represents a tectonic shift in sentencing. However, the Supreme Court noted that "the Federal Guidelines are not before us, and we express no opinion on them" [and] the Second Circuit sitting en banc certified questions to the Supreme Court concerning the same issues implicated by Lauersen's application....
This Court declines to add to the cacophony given the Second Circuit's recognition that the law is uncertain. If Lauersen's prognostication about the reach of Blakely is correct, it does not ineluctably follow that his term of imprisonment will be shorter than the prison time he has already served or will have served by the time of resentencing. If his prediction about Blakely's reach is mistaken, then Lauersen faces the prospect of a prison term greater than the 87 month term he received in October 2001....
The Guidelines are constitutional until the Supreme Court says they are not. If the Supreme Court or the Second Circuit address the issue, Lauersen may petition this Court immediately for bail.
US v. Gibson, No, 1:04-cr-12 (D. Vt. July 30, 2004), is a decision relayed by a researcher who reports that District Judge J. Garvan Murtha issued the following ruling:
After careful consideration, the Court concludes that the constitutional precepts outlined in Blakely are equally applicable to the U.S.S.G. and joins the legion of courts that have concluded Blakely renders certain applications of the Guidelines unconstitutional.... In doing so, however, the Court rejects the notion that if Blakely is applicable to the Guidelines the entire system of the Guidelines must fall.... Instead, the Court finds the best approach is to continue to apply the Guidelines to the extent they can be applied in a manner consistent with the Sixth Amendment. Accordingly, absent a defendant's consent to sentencing under the Guidelines, the Court will not consider any enhancement based on facts not admitted by the defendant or found by a jury.
US v. Carter, 2004 U.S.Dist. LEXIS 14433 (C.D. Ill. July 23, 2004), has apparently been "in the books" for a week, but just recently appeared on-line. In Carter, District Judge Michael McCuskey concludes that the federal guidelines are unconstitutional in their entirety:
After reviewing the recent flurry of caselaw on the issues raised by Blakely, this court finds that the US Sentencing Guidelines are not severable. In reaching this conclusion, this court is persuaded by the reasoning of the court in United States v. Croxford, 2004 WL 1521560 (D. Utah July 7, 2004). This court believes that severing the Guidelines and applying only portions of the sentencing scheme would contravene the goals of Congress and would distort the intended effect of the Guidelines.
I'm going to Graceland...
Proving that Tennessee deserves the nickname "The Volunteer State," a friend from Tennessee was kind enough to volunteer some helpful information concerning that state's reaction to Blakely. As noted before, Tennessee's Governor has already created a Task Force on the Use of Enhancement Factors in Criminal Sentencing (background here), and I was pleased to learn that the Task Force seems to have a balanced membership, including many judges, prosecutors and defense attorneys (and three very well-regarded law professors as ex officio members). It also seems the Task Force has set a robust schedule and plans to have a report or a proposal before the end of this year.
The history of sentencing reform is Tennessee is quite dynamic, and the pre-Blakely story is well-told here. In 1985, the legislature created the Tennessee Sentencing Commission which helped produce the Tennessee Sentencing Reform Act. That Act became effective on November 1, 1989 and still governs Tennessee sentencing. But the Tennessee Sentencing Commission is no longer with us: the state's legislature abolished the Commission in 1995. And yet, Judge Barbara Haynes, who once served Chair of the Tennessee Sentencing Commission, is now serving a Chair of the Governor's Task Force and apparently others involve with the Task Force formerly were involved with the Tennessee Sentencing Commission.
Even before the Task Force gets started in earnest, official and unofficial voices are sharing wisdom about what Blakely means for Tennessee sentencing. Specifically, the Office of the Tennessee Attorney General has issued a fascinating four-page memorandum presenting "initial impressions ... as to Blakely's effects on Tennessee's statutory sentencing scheme." The memo speaks to a number of universally important topics, such as authority for utilizing sentencing juries, the impact of Blakely on consecutive sentencing, and retroactivity. Covering similar ground in a fuller way from a different perspective, attorney David L. Raybin has completed an article to be published the August 2004 issue of the Tennessee Bar Journal entitled "What is the Impact of Blakely v. Washington on Sentencing in Tennessee." I am pleased to be able to provide access to both these documents here:
Download what_is_the_impact_of_blakely_v. Washington on Sentencing in Tennessee.pdf
Now I wonder what Elvis (or even Paul Simon) would think about Blakely?
A New USSC Chair
Interestingly, as this AP story reports, President Bush yesterday announced his intention to use his recess appointment power to name Southern District of Texas US District Judge Ricardo Hinojosa as the new chair of the US Sentencing Commission. This is just a expected promotion, rather than an appointment, since Judge Hinojosa already serves a member of the USSC (details here along with all the Commissioners' bios), and the President had previously nominated Judge Hinojosa for this top spot.
Notably, in their recent Senate testimony, Commissioners John Steer and William Sessions stressed that "the Sentencing Commission remains in critical need of a full slate of Commissioners." Perhaps President Bush should consider making a true recess appointment, as well. As I suggested here, there is a lot more that I think the USSC could and should be doing.
Blakely media coverage
Especially if (when?) the Supreme Court grants cert. on a federal Blakely case this Monday, we can expect even more media coverage of the law, policies and practices of modern sentencing systems. I am hopeful that this media coverage will facilitate serious reexamination of existing federal and state sentencing systems by both the public and politicians (as has already been recommended by the American Bar Association's Justice Kennedy Commission).
But the complicated story of sentencing reform, and Blakely's complicated and still developing chapter in that story, may not always be accurately discussed in the media. Proof comes from this editorial in the Houston Chronicle: though the headline and main themes are astute, I count at least five erroneous statements or implications in the discussion of the law.
Fortunately, sophisticated legal reporters can tell compelling Blakely stories that accurately capture all the legal nuances. The Blakely coverage has been well done in major papers such as the New York Times, the Washington Post, the Boston Globe and the Wall Street Journal (I am biased here), and some smaller papers such as the Knoxville News Sentinel deserve credit for being "ahead of the curve" on the Blakely story.
Continuing its fine Blakely work, over at law.com you can now find this extended article discussing the different post-Blakely federal cases the Supreme Court has been asked to review. The article insightfully notes that the litigants and others are "closely watching which cases the justices decide to review, and how quickly, as a sign of the legendary clout of the solicitor general's office in helping the Court set its agenda."
In addition, I know that NPR is airing on today's Weekend Edition a thoughtful piece by Wendy Kaufman entitled "Ruling on Sentencing Guidelines Creating 'Legal Anarchy.'"
UPDATE: The NPR story, which one of my favorite readers calls a "great explanation of the Blakely issue for bright laypeople," is now available on-line at this link. Also, I discovered that Jonathan Scogin over at Criminal Appeal has quite effectively summarized the state of criminal law here.
July 30, 2004
Will state sentencing commissions do better?
Because no state sentencing system is (yet) experiencing the turmoil now transpiring in the federal sentencing system (details here), it is understandable (and even perhaps defensible) that state sentencing commissions have not yet been active participants in the discussion of sentencing reforms after Blakely. Nevertheless, I visited today the home pages of most of the state sentencing commissions and was a bit troubled to find no mention of Blakely on any of the websites except Pennsylvania's (and the brief Pennsylvania discussion of Blakely is now a month old).
I was quite encouraged to see, however, on the website of the New Mexico Sentencing Commission that there are plans in place to discuss Blakely at the upcoming Conference of the National Association of Sentencing Commissions, which is taking place next month in Sante Fe. (For details, including information on how to get an affordable NASC T-shirt, click here.)
I was also pleased to see that the "NASC is setting up an internet page through the US Sentencing Commission for individual states to submit information, documents, recommendations, proposed legislation or reports related to their state's response to Blakely." Here is a link to that page, which currently has only limited information from Kansas, Michigan and Pennsylvania, but valuably seeks "to have each state provide information so it can serve as a clearinghouse of information on the states' responses."
Finally, according to my Blakely calender, at least one state sentencing commission is going to be speaking publicly soon: this Monday, I believe, marks the deadline that Minnesota Governor Tim Pawlenty set for a short-term report from the Minnesota Sentencing Guidelines Commissionon concerning his state's sentencing procedures in the wake of Blakely (background here). I am very eager to see what this well-regarded Commission is going to say (and perhaps not say) about Blakely.
Wherefore art thou USSC?
A month ago, I was energized by the thought that the Blakely earthquake might provided a unique opportunity for sentencing commissions to play a leading role in reforming sentencing reform (background here). Though I suppose I can still hope, a month later the idea that the US Sentencing Commission would become a leader seems like wishful thinking.
According to the Acting Solicitor General, federal sentencing law is in a state of unprecedented turmoil (details here) in the wake of Blakely. Yet the only Blakely resource the US Sentencing Commission provides on its website is the (now quite dated) written testimony of Commissioners Steer and Sessions before the Senate Judiciary Committee. In that testimony, the Commissioners indicate that the USSC has been "work[ing] intensively with Congress, the Department of Justice, representatives of the federal judiciary, and other interested persons to analyze the impact of the Supreme Court’s decision and help guide the discussion concerning the future of the federal sentencing guidelines system." That sounds great, but I cannot resist trotting out a well-worn political slogan: "Where's the beef?"
The USSC surely is collecting lower court Blakely decisions concerning the federal guidelines; why hasn't the USSC made these decisions publically available in one official location?
The USSC likely has unique insights and opinions about which post-Blakely cases the Supreme Court ought to consider and how the "Questions Presented" ought to be cast; why hasn't the USSC filed an amicus brief with the Court addressing these critical matters?
The USSC likely is analyzing key data about the possible impact of Blakely on past, present and future federal sentences; why hasn't the USSC made any official statements about this important data (while avoiding questionable unofficial statements)?
I am confident that the USSC Commissioners and staff have been hard at work since Blakely was decided, but I am disappointed the USSC has not played a more public and effective role in the on-going dialogue about the future of federal sentencing. Because we are only in the midst of the first chapter of a very long story, there is still plenty of time for the USSC to shine. But it is hard to be encouraged by what we have seen so far, which prompts not just the question where is the USSC, but why?
Taking stock of the Blakely world
A number of others are doing a great job this morning taking stock of our ever-changing Blakely world.
Marcia Oddi over at the Indiana Law Blog has this helpful post reviewing the status of Blakely in the Seventh Circuit and in Indiana state courts. Jason Hernandez at the Blakely Blog has this post linking to the helpful California Blakely materials being assembled and posted by the First District Appellate Project, as well as this post spanning the Blakely globe.
And, of special interest for Supreme Court junkies, Lyle Denniston at the SCOTUSBlog has this post reviewing the details of the two cases that defense lawyers hope will be the vehicles for Supreme Court consideration of what Blakely means for federal sentencing.
What should the other circuits do?
With a Supreme Court grant of cert a near certainty, it is tempting to suggest (perhaps even hope) that the sentencing world can take a breather until the High Court decides what Blakely means for the federal guidelines. However, it could be two more months until the Supreme Court even hears argument on a Blakely federal sentencing case, and perhaps at least a few more months before the Supreme Court renders a decision. I doubt that the thousands of federal criminal cases now pending in district and circuit courts can be put completely on hold during this period.
Of course, those circuits which have already weighed in on Blakely have given their district courts interim guidance, although that guidance is sketchy at best everywhere except in the Fifth Circuit where court have been told to continue with business as usual. But what approach should other circuits, including the Fourth and Sixth where en banc arguments are scheduled for the next few weeks, take during this interim period of great uncertainty?
Interestingly, the Second Circuit has recently been taking what I might call a "duck and cover" approach to Blakely issues. For example, in US v. Jasper, 2004 U.S. App. LEXIS 15543 (2d Cir. July 28, 2004), a case involving a challenge to two guidelines enhancements, the Second Circuit in an unpublished disposition explained:
Our Circuit has recently certified to the Supreme Court several questions related to Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004). We will defer consideration of Jasper's sentencing challenge pending resolution of our request for certification. Once that is resolved, we will set a timetable for further briefing, should such briefing be appropriate. All of Jasper's other arguments are unavailing, and we reject them for substantially the same reasons expressed by the district court.
Similarly, in US v. Lenoci, 2004 U.S. App. LEXIS 15530 (2d Cir. July 28, 2004), a case involving a challenge to the federal guidelines' complicated grouping rules, the Second Circuit dropped this slightly comical footnote:
Oral argument was heard in this case on April 2, 2004, nearly three months before the Supreme Court decided Blakely v. Washington. While we bring the grouping issues raised in this case to the attention of the United States Sentencing Commission, we recognize that in light of Blakely, the Commission may be presented with more pressing matters to which it must attend. In this case, the parties have not raised any Blakely issues, nor do we believe that any such issues are immediately apparent. However, out of an abundance of caution, we stay the issuance of the mandate in this case until further direction from the panel. See, e.g., United States v. Penaranda, Nos. 03-1055(L), 03-1062(L), 2004 WL 1551369 (2d Cir. July 12, 2004) (in banc).
This "duck and cover" approach certainly is understandable (though perhaps a bit disturbingly reminiscent of the (in)famous Duck and Cover government film). However, for the sake of litigants and district courts, I am inclined to think that the Second Circuit, and other circuits that have not yet spoken to Blakely issues, should make a definitive ruling about the guidelines' status even though the Supreme Court will soon return to the fray.
The Second Circuit merits, in my view, great praise for initially sending a bold and loud message when it certified Blakely questions to the Supreme Court; but I do not think circuits can or should now completely avoid speaking to what Blakely means for federal sentencing while we all await Supreme Court action. Though the Second Circuit's "punt" made a valuable symbolic point, the failure of the Supreme Court to quickly "run with the ball" now leaves district courts in the Second Circuit and elsewhere adrift. Though district court innovation and experimentation concerning how to apply Blakely in the federal system can be quite valuable, I believe circuit courts should at least endeavor to provide a sound, sensible and consistent framework for that innovation and experimentation.
July 29, 2004
I did not think the Blakely story could move any faster, but the last 36 hours certainly proved me wrong. In a dueling set of briefs filed over the last two days (available here and here), the defendants' counsel and the Acting Solicitor General summarized events in the remarkable post-Blakely federal sentencing world and also marked out some (though not all) of the remarkable post-Blakely federal sentencing battlegrounds.
As effectively detailed in this post by Lyle Denniston at the SCOTUSBlog, the litigants now can get some well-deserved sleep, but the Justices and their staffs may be in for a few restless nights. Insiders have been predicting that the Supreme Court will take action this Monday, August 2, but there are extremely challenging issues the High Court must confront in whatever action it decides to take. There are (at least) four cases competing for the Supreme Court's attention, and also compelling debates over how the "Questions Presented" should be framed. Amazing times.
Though all the briefs merit careful review, I think the SG's "Reply in Support of Motion to Expedite" (posted again here) is the one document to read if you are only going to read one.
Thesaurus of rhetoric
One reason the Acting Solicitor General's latest filings are so great to read is because of all the different ways the post-Blakely world is discussed. Here's a taste:
Booker/Fanfan Reply Brief
at p.2: "The fragmentation of the law on the most basic questions in federal sentencing presents a compelling case for guidance from this Court, in order to stem a flood tide of contradictory approaches applied in thousands of sentencings — many of which may have to be redone once this Court settles the applicable law."
at p.10: "[A]waiting further percolation in the lower courts is not a luxury that the federal criminal justice system can afford. There is a pressing need for this Court immediately to step in and restore uniformity to federal sentencing — and that need mandates that review be undertaken now, not in the fullness of time."
at p. 14: "The disarray among the lower courts here is also comparable to that in Mistretta, and the disarray is increasing daily."
at p. 15: "[There is a] glaring need for expedited consideration of the issues now. Awaiting the filing of petitions in other cases ... would be to ignore the urgent need for guidance that the lower federal courts have justifiably requested."
at pp. 20-21: "[T]he federal judicial system is in dire need of this Court’s prompt resolution of the issues presented. The defense bar’s caution aside — a caution that coincides with the reduced sentences that many defendants are receiving in the current reign of confusion over Blakely — there is widespread sentiment in the lower federal judiciary that, absent this Court’s expedited intervention, federal sentencing threatens to descend even further into a balkanized set of regimes in which each circuit, if not each individual district court judge, literally makes up the rules as he or she goes along. This chaotic state of affairs cannot stand. It can only be rectified by expeditious action by this Court."
Bijou Opp. Cert. at pp. 5-6: "Blakely has profoundly unsettled the federal criminal justice system and ... there is an urgent need for this Court’s resolution of questions about whether and how Blakely applies to the Guidelines."
Reply on Expedite Motion
at p. 6: "The division of the courts on the question whether Blakely applies to the Guidelines (the first question presented by the petitions) pales in comparison to the profound confusion in the lower courts over the implications for sentencing if it does."
at p. 7: "[D]istrict courts have continued to apply a variety of mutually inconsistent approaches to implementing Blakely"
at p. 8: "In light of the profoundly fractured nature of the lower courts’ holdings, it cannot seriously be maintained that the federal courts have adapted well to Blakely’s teachings."
and here's a fitting finale on p. 10: "If respondents and their amici are correct in their assertion that Blakely will result in the invalidation of the Guidelines irrespective of whether a case involved enhancements based on judicially found facts, every single Guidelines sentence is potentially invalid." (emphasis in original; citation omitted)
Wasting no time, DOJ replies...
Proving how fast he can move, the Acting Solicitor General, less than 24 hours since the defendants' filings, has now submitted a Reply Brief for the US in the Fanfan and Booker cases. Here are all 21 pages of the reply, as well as a (mercifully brief) "Motion to Exceed the Page Limit," for your reading pleasure (with commentary soon to follow):
UPDATE: Lyle Denniston over at the SCOTUSBlog already has a thorough account of the SG's filings here. This post is a reminder that we are really just getting started on what is likely to be a very long Blakely roller-coaster ride.
ADDITIONAL UPDATE: The SG's reply brief is another wonderful read. The legal analysis is impressive and all the counter-punching is very amusing. Of course, in the end this all seems like shadow-boxing: what is unstated in all the briefs is that, as a matter of pure legal doctrine, the vehicles chosen for Supreme Court review probably do not matter very much at all. But, as a matter of case equities and expected public dialogue, the vehicles chosen for Supreme Court review matter a whole lot. The SG principally wants Fanfan because, in my view, the defendant in that case is far less sympathetic than Bijou. Indeed, the NACDL is pushing Bijou because, in my view, it much more starkly highlights the potential injustices of the "old rules."
As I discussed before here, the fact that the Supreme Court used the Rodney King case as its vehicle for discussing departure authority in Koon v. US --- not to mention its troubling decision in US v. Watts, 519 U.S. 148 (1997), to use a summary reversal per curium opinion to approve the use of "acquitted conduct" in federal sentencing, cf. Watts, 519 U.S. at 170 (Kennedy, J., dissenting) --- suggests that SCOTUS clearly cares about how its decisions look in the headlines as well as in the law books. But what exactly that legal realist fact means for these cases is anyone's guess.
STILL FURTHER UPDATE: I have just received the SG's opposition to cert. in Bijou and Pineiro, as well as now the SG's reply brief on the motion to expedite. Here they are:
Your morning Blakely fix
As he does so well, Howard Bashman at How Appealing has a collection of today's newspaper articles discussing Blakely here. Though all the articles include interesting Blakely tidbits, especially noteworthy is this article's discussion of the plans of US District Chief Judge G. Patrick Murphy (SD Illinois) to deal with Blakely.
For a more intense Blakely experience, let me highly recommend this memo to all readers, even though it is focused on the application of Blakely in California. Because the memo is written by sentencing judges for sentencing judges, its sections covering "Practical Application of Blakely" are especially interesting. And it is almost comical how many times the memo highlights issues that Blakely raises but does not resolve, which leads the authors to forecast that "appellate courts may disagree on the extent of Blakely's application in California, even as to whether it applies at all."
Slow down, you move too fast...
Lyle Denniston over at SCOTUSBlog has this fine post which astutely suggests that, due to the "new filings in the Supreme Court by criminal defense lawyers, the Court’s informal timetable for acting on the Blakely sequels has been complicated, if not slowed down." Indeed, the defense filings — all of which are great reads and can be accessed here — are a stark testament to the doctrinal rabbit hole down which Blakely has taken the sentencing world. And, though dickering over the right vehicles for considering Blakely's federal impact, the briefs' most important messages are those which urge the High Court to take the time needed to handle these matter properly.
The Booker filings are particularly rich in urging a "deliberate process and unhurried attention." The Booker brief repeatedly identifies flaws in the government's claims and suggests "the government's position is probably confused because it was formulated in haste." And the Booker response to the motion to expedite gives us this particularly choice passage:
The complaint that a few defendants might receive a “sentencing windfall” is insufficient to justify expedited review of this case. For about two decades, defendants have been sentenced to longer terms of imprisonment than the facts found by a jury or admitted in a guilty plea warranted. It is difficult to understand why there is a need for urgency to correct sentences perceived to be unduly lenient when it has taken twenty years to avoid sentences that are unduly harsh.
Though I have vocally urged quick Supreme Court consideration of these issues, I concur in the sentiment that the Court must give itself the time it needs to work through all the complicated issues Blakely raises. As I suggested here, some post-Blakely lower court rulings have been opaque no doubt because they were hurried. (The Sixth Circuit's now-vacated ruling in Montgomery and the Eighth Circuit's ruling in Mooney come immediately to mind.) Indeed, it is hard not to think that the Blakely decision itself was so "messy" because the Court was rushing to complete a large group of important cases as the term dwindled to a close.
Critically, The NACDL brief is especially effective in highlighting how many issues are in play (as well as how many doctrinal trap doors are built into the SG's framing of questions for Supreme Court review). The NACDL brief rightly note that the next Blakely case is necessarily about the Sixth Amendment and the Fifth Amendment, and necessarily about the federal guidelines and the Sentencing Reform Act and Federal Rule of Criminal Procedure 32.
July 28, 2004
Another fascinating Blakely front
Part of what makes Blakely such a big deal is that there seems to be no limit to the arenas and settings in which Blakely issues might arise. We get more evidence of this fact from California today, where in People v. Sykes, a California Court of Appeal had to confront a defendant's claim that, under Blakely, "he was entitled to a jury trial as to those factors which determine whether consecutive sentences may be imposed [because an applicable statute] grants trial courts the authority to impose consecutive sentences" in certain situations. In other words, the defendant in Sykes argued under California law "that the United States Supreme Court’s holding in Blakely requires that a jury, not a judge, find whether the factors which warrant consecutive sentencing are present."
The Court of Appeal ultimately rejects the defendant's claim, saying:
Neither Blakely nor Apprendi purport to create a jury trial right to the determination as to whether to impose consecutive sentences. Both Blakely and Apprendi involve a conviction for a single count. The historical and jurisprudential basis for the Blakely and Apprendi holdings did not involve consecutive sentencing.... [T]he consecutive sentencing decision can only be made once the accused has been found beyond a reasonable doubt to have committed two or more offenses—this fully complies with the Sixth Amendment jury trial and Fourteenth Amendment due process clause rights. Those facts which affect the appropriate sentence within the range of potential terms of incarceration for each offense are subject to Blakely and Apprendi; this constitutional principle does not extend to whether the sentences for charges which have been found to be true beyond a reasonable doubt shall be served consecutively.
Though I am not an expert on California law, these conclusions certainly seem debatable. And, notably, we now have word that these conclusions will be debated by the California Supreme Court, which today granted review of just this issue. Specifically, in People v. Black, the California Supreme Court has now asked the parties to brief the following questions:
(1) What effect does Blakely v. Washington (2004) 124 S.Ct. 2531 have on the validity of defendant's upper term sentence? (2) What effect does Blakely have on the trial court's imposition of consecutive sentences?
SCOTUS hears the other side
The defendants and amicus are today filing papers in response to the Solicitor General's cert petitions (background here and here). Here's what I can tell from a quick review of the documents that I have in hand (and post below):
A. The amicus from the National Association of Criminal Defense Lawyers suggests that the High Court grant review in Booker (from the Seventh Circuit) or Pineiro (from the Fifth Circuit), deny review in Fanfan (from the Maine District Court), and grant review in Bijou (a case involving an enhancement based essentially on "acquitted conduct" decided by the Fourth Circuit before Blakely). Here are the questions presented in this amicus brief:
1. Whether a district court violates the Fifth and Sixth Amendments by relying upon facts that increase the maximum sentence available under the United States Sentencing Guidelines (other than the fact of a prior conviction) when those facts were not charged in the indictment and either found by the jury on proof beyond a reasonable doubt or admitted by the defendant.Download nacdl_blakely_amicus_final.pdf
2. If the answer to the first question is “yes,” the following question is presented: What role do the Sentencing Reform Act, the Sentencing Guidelines, and Federal Rule of Criminal Procedure 32 continue to play in federal criminal sentencing?
B. Fanfan is opposing cert (in a brief signed by former SG Seth Waxman and co-authored by several other heavy hitters) while endorsing Bijou as a vehicle for the consideration of these matters. The briefs also suggests that the Court should not expedite the briefing schedule, but should expedite the argument date.
C. It seems that Booker may be consenting to cert but opposing expedition, although details are still sketchy and I do not yet have a brief in hand. (UPDATE: I now have the Booker briefs here, and the arguments appear wonderfully nuanced):
More details (perhaps more accurate details) can be found here at the SCOTUSBlog. And more details (and commentary) here soon.
More Blakely insights for Californians
Now available on the Blakely page assembled by the Appellate Defenders, Inc. is this helpful memo, entitled "The Application of Blakely v. Washington to California Courts" and prepared by Superior Court Judges J. Richards Couzens and Tricia A. Bigelow.
The memo advises California's courts of potential sentencing issues raised by Blakely, and suggests a reasonable course of action to address the potential effect of the decision pending further analysis by California's appellate courts.
More news from the Sixth Circuit and elsewhere
The Sixth Circuit has now officially selected US v. Koch for en banc consideration of Blakely issues, with briefing to be completed in a week and oral argument set for August 11, 2004. This article provides some additional background and details. And, as they do so well, How Appealing has collected additional Blakely news stories here and the Blakely Blog has a morning report and recap here.
Also, though it requires a subscription for access, here is a link to an article in yesterday's New York Law Journal entitled "All 'Blakely' All the Time," which highlights that "The Internet Is Awash in Sites Devoted to the Recent Ruling." Many thanks to Ken Strutin, director of legal information services at the New York State Defenders Association, for effectively detailing all the Blakely resources on the web and for saying nice things about my efforts.
If you destory it, they will come...
It seems the Blakely decision has created a new Field of Dreams, because judges are coming back to federal sentencing now that the guidelines have been "unbuilt." In US v. Sisson, Senior US District Judge Edward Harrington reports that he "shall recommence drawing criminal cases on September 1, 2004 in view of the US Supreme Court's decision in Blakely." As he explains:
On June 19, 2001, the Court ... decided not to continue to draw criminal cases because under the Sentencing Commission Guidelines the power to impose a sentence has been virtually transferred from the court to the government, which, as the prosecuting authority, is an interested party to the case. This transfer constitutes an erosion of judicial power and a breach in the wall of the doctrine of the separation of powers. The government, not the judge, the impartial arbiter, has the power to determine the severity of the punishment....
In returning to the criminal draw, the Court shall follow the implications of Blakely on the Sentencing Commission Guidelines as cogently reasoned in the case of United States v. King, No. 6:04-cr-35-Orl-31KRS (M.D. Fla. July 19, 2004), pending further direction by the Court of Appeals for the First Circuit. In brief, it shall treat the Guidelines as unconstitutional in all cases and shall adhere to the statutory commands setting sentences. In other words, in all cases, the Court shall handle the sentencing as courts handled sentencing before the Guidelines -- by making a full examination of an individual defendant's personal character, family responsibilities, medical and mental condition, criminal record, and the particular circumstances surrounding the crime and imposing an appropriate sentence within the broad range set by Congress, after deep reflection informed by his experience in life and in the law. Despite a return to an indeterminate sentencing scheme, the Court "will continue to rely on the Guidelines as recommendations worthy of serious consideration." King, at 12.
This is, of course, a wonderfully ironic reversal of the tendency of federal judges to stop taking criminal cases (or even retiring like Judge John Martin) because of the dynamics of federal sentencing.
Many thanks for the pointer to Sisson goes to Petert Schmidt at USSGuide, which continues to effectively assemble here the ever expanding corpus of Blakely decisions in lower federal courts.
In the wee hours of the night, the daily mania of Blakely developments gives way to broader reflections on our amazing new sentencing world:
1. Though perhaps nobody has time to ponder such questions, I wonder about the ethical obligations of lawyers and others operating in the criminal justice system at a time of such great uncertainty. Does zealous advocacy and/or a commitment to justice have a unique spin when nobody really knows the current rules nor can reasonably predict the future rules? This document, prepared by the Appellate Defenders, Inc., got me thinking about these issues through its "alert" that Blakely "creates responsibilities for appointed appellate counsel." I have also been thinking in this vein about probation officers (the so-called "guardians of the guidelines") and staff at state and federal sentencing commissions. Do the persons responsible for administering "the system" have a new set of professional responsibilities when the system has been so radically disrupted?
2. Though Blakely is obviously the progeny of Apprendi, might it also be viewed as an indirect by-product of the decision in Ewing v. California, the 2003 decision upholding a severe application of California's 3-strikes laws against an Eighth Amendment challenge? Specifically, I think Justices Stevens, Ginsburg and Souter may have been particularly eager to regulate sentencing procedures through the Sixth Amendment and the Due Process Clause after Ewing made clear that a majority of the Court was not eager to regulate sentencing outcomes through the Eighth Amendment. Conceived in this way, we might then notice an ironic mirror image of the High Court's regulation of capital punishment, which Furman made a matter of Eighth Amendment jurisprudence only one year after McGautha turned away a Due Process challenge.
3. Did the Framers have a peculiar understanding of sentencing proportionality? If I am reading Washington's petition for rehearing properly, it seems that the maximum punishment around the time of the Founding for manslaughter on federal property was only three years, while the maximum punishment for stealing or falsifying courts records was seven years and whipping up to 39 stripes. See petition at pp. 3-4 & n.4. (Aside: Washington earns chutzpah bonus points for implying that the whipping provision shows the Framers "were progressive sentencing reformers" for "recognizing alternative sanctions.")
July 27, 2004
Now, officially, news from New Mexico
Below is a repost of a post from last week that was removed because a final order was not entered immediately after the decision in US v. Pedro Quijada was handed down. But now I have a copy of the government's "Motion to Correct Sentence," which in my mind makes this matter "official" to report. See paragraphs 9 and 10 for the key Blakely prompting the government's motion:
FROM JULY 19:
Steve McCue, Federal Public Defender in New Mexico provided the following interesting and important report abut a ruling US v. Pedro Quijada, NM 04cr0516. Here's the text:
US District Judge James O. Browning, District of New Mexico, today declined to apply the sixteen-level enhancement for an aggravated felony/crime of violence in the Reentry after Deportation guideline, USSG § 2L1.2(b)(1)(A)(ii). As I understand, it the court found that the enhancement required it to make a finding regarding the nature of the prior conviction (i.e. that it was a "crime of violence") in derogation of Blakely. The court semed to think that the required characterization of the prior was more than the "fact of the prior conviction" [which seems to be an exception to the Blakely rule due to the holding in Almendarez-Torres]. Of course this has major implications not only for southwest border courts but also for other USSG enhancements like Career Offender....
Several judges here have declined to apply USSG enhancements under Blakely. So far courts here in the USDC NM have avoided ruling the guidelines unconstitutional. Courts are however imposing alternative sentences.
IMPORTANT UPDATE JUST IN:
Judge Browning has granted the government's motion to correct sentence in Floyd Lopez' Pedro Quijada case. This was the reentry after deportation case in which Judge Browning had refused to apply the sixteen level enhancement of §2L1.2 USSG to a prior "crime of violence" because he had to make a finding that the prior was indeed a crime of violence. Judge Browning found today that, in light of the intervening Tenth Circuit opinion in US v. Cooper, ___ F.3d ___ at fn.3, 2004 WL 1598798 (10th Cir. 2004), the fact of prior conviction is one found by the court by a preponderance of the evidence and Blakely does not apply to this determination. The court went on to find that Quijada's prior was a crime of violence and awarded the sixteen level enhancement. Mr. Quijada got 46 months - the low end of the guideline range. Cooper is a three strikes case. Judge Browning equated the finding of "serious violent felony" under 18 USC §3559(c) with the finding of "crime of violence" under 2L1.2.