August 7, 2004
More helpful Blakely reading
I am headed to the beach this afternoon, and have great pile of Blakely beach reading to take with me. First, as he does so well, Howard Bashman has collected the (ever growing) Blakely headlines here. This article from the Boston Globe highlights some of the legal drama, and this article from the Baltimore Sun highlights some of the human drama that Blakely has produced.
In addition, New York lawyer Marc Fernich was kind enough to send along a lengthy article he has written on Blakely, a version of which is slated to appear in the September issue of the Mouthpiece, the magazine for the New York State Association of Criminal Defense Lawyers. As Marc explains, "the article doesn't break much new ground, but it's thorough and comprehensive," and here it is for your reading pleasure:
O' Daniel is a dandy
I have now had a chance to read closely Chief Judge Sven Erik Holmes' opinion in US v. O'Daniel, and I want to encourage folks to put the opinion on the top of their Blakely reading list. Though Ron provides some important highlights here (and Jason Hernandez does the same at the Blakely Blog here), the O'Daniel opinion makes too many important holdings and insightful observations to be fully captured through a brief summary. In addition, two critically important realities leap from the page in O'Daniel:
1. Judge Holmes emphasizes the distinction between Blakely's recognition of the jury right and of the right to a beyond a reasonable doubt standard of proof, and he concludes that a defendant could (and in this case did) make a valid waiver of the right to jury factfinding, but could not "waive down" the standard of proof. This distinction is very important in a lot of settings besides waiver (e.g., considerations of retroactivity and plain error), and it also is a reminder that the burden of proof issues may, over time, be much more important in the post-Blakely world than the jury versus judge as factfinder debate.
2. The sentencing world in Judge Holmes' courtroom seems so much more orderly and predictable than in those courtrooms in which judges have declared the entire guidelines system unconstitutional. No alternative sentencing, no questions about which parts of the Sentencing Reform Act are still in force, no question about whether parole is back or supervised release is gone, no question about the continued applicability of appellate review. In other words, Judge Holmes has presented a sound and sensible way to maintain our old guidelines world while still making it compliant with the Sixth Amendment and the dictates of Blakely.
Get in Line
Post from Ron:
The order entered by the Second Circuit yesterday (noted by Doug here) seeks to freeze in place the many potential Blakely claims that might come from defendants who are now appealing their sentences imposed before the case was decided. In one sense, the order is not big news. It only spells out the implications of the Second Circuit's earlier remarkable decision to "certify" questions to the U.S. Supreme Court (background here). The Court of Appeals asked somebody else to handle this, and in the meantime they put all these questions on hold until the answers arrive.
Still, the order tells an interesting story about how many of these cases are in the system and the fact that so many of them will be making identical claims. It is easy to take special interest in the first case to get to each circuit court, and even more so the first case in which the Supreme Court grants cert. And we certainly should notice the large number of negotiations at the trial court that are affected. But it is easy to forget the large number of people who have already been convicted and sentenced but are waiting in line in the appellate courts, each with a routine case, but each potentially affected by Blakely.
Addition by Doug:
Moreover, though the Second Circuit order seeks to preserve the status quo, the range of (different and conflicting) decisions being made in district courts in the Second Circuit creates a status quo that is not nearly as orderly as the Second Circuit's order might imply.
In the end, though, this order does reinforce the point the Second Circuit made so forcefully when certifying questions to the Supreme Court: lower courts need additional guidance on Blakely ASAP. The Supreme Court should be coming to understand that it is not enough to simply hear Booker and Fanfan right away; the High Court needs to render a decision as soon as possible to keep the federal criminal justice system from grinding to a halt. But, given all the hard questions Blakely now raises (examples here), a fast decision is easier said than done.
The distinction that doesn't bark in Minnesota
I have now had a chance to read the Minnesota Sentencing Guidelines Commission's "short-term report," and it is yet another rich document with highlights both big and small. Ron did a terrific review here, and I particularly want to reiterate his observations about "two loudly ticking time bombs" to be found in the report's discussion of criminal history calculations and probation revocations (at pp. 10-11). It would have been useful, though perhaps disconcerting, to know the number of Minnesota cases per year that involve criminal history calculations and/or probation revocations that might now be Blakely problematic. My guess is that this number could be quite large.
I also wanted to highlight something that the Minnesota report does not say. I believe Minnesota's sentencing guidelines are produced administratively by a commission (like the federal sentencing guidelines), and thus are not statutorily enacted like the Washington guideline scheme invalidated in Blakely. Thus, it would seem that Minnesota's Commission could try to assert for the Minnesota system, as has DOJ and the USSC and some federal judges have asserted for the federal system, that Blakely is wholly inapplicable because the decision only concerns statutory guideline systems. But, tellingly, the Minnesota report does not even mention this administrative/statutory guidelines distinction, let alone try to claim that this distinction could allow the Minnesota sentencing system to avoid having to directly confront Blakely.
Is the Eighth Circuit taking Mooney en banc?
Howard Bashman of How Appealing reports here that he has been "reliably advised that the Eighth Circuit late [Friday] has granted rehearing en banc on the court's own motion in United States v. Mooney, the case in which a divided three-judge panel had declared the U.S. Sentencing Guidelines unconstitutional in the aftermath of Blakely." (Mooney basics are here, commentary here)
Though I was not able to find anything official on the Eighth Circuit's website, I assume Howard's information and sources are very sound. And, if true, the decision to take Mooney en banc would be yet another crazy development in the Eighth Circuit's part of the Blakely universe, which already has the craziness of another major circuit ruling in Pirani (details here) and a thoughtfully wayward district judge (details here).
August 6, 2004
Blakely never sleeps...except perhaps in the Second Circuit
Because it seems Blakely never takes a day off, I am fortunate to have access to a high-speed internet connection and a healthy printer tonight before heading to the beach tomorrow afternoon. Though Ron, as I expected, is already driving the blog beautifully, I am eager to post some commentary later about today's very interesting Minnesota report and the O'Daniel decision by Judge Holmes.
But, while Blakely and this blog keep putting the pedal to the medal, today the Second Circuit entered this order apparently designed to put the brakes on Blakely in that circuit. Here's the full text:
John M. Walker, Jr., Chief Judge of the United States Court of Appeals for the Second Circuit, today announced a set of procedural and administrative measures that his court is adopting pending the Supreme Court’s decision in US v. Booker, No. 04-104, and US v. Fanfan, No. 04-105 (to be argued October 4, 2004). These measures are as follows:
(1) The court generally will hold mandates in all criminal cases pending the Supreme Court’s decision in Booker/Fanfan. A panel may order that a mandate issue, however, in cases in which (a) the defendant was sentenced to no more than the applicable statutory minimum and (b) the facts that justified application of the statutory minimum were either admitted by the defendant or found by a jury beyond a reasonable doubt. Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part.
(2) All motions to file supplemental briefs in light of the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), will be denied without prejudice to renewal following the Supreme Court’s decision in Booker/Fanfan.
(3) Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its decisions that address defendants’ sentences until after the Supreme Court’s decision in Booker/Fanfan. In that regard, the parties will have until 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker/Fanfan.
This order — though not as dramatic or as consequential as the recent California appellate court order refusing to compensate appointed counsel for research or briefing of Blakely issues (details here) or the Indiana US Attorney's decision to seek a stay of all sentencing hearings (details here) — is just another example of a lower court's effort to cope with a period of unprecedented legal uncertainty while we all await further guidance about the meaning of Blakely .
Minimizing in Minnesota
First, the decision to allow the Commission to take the lead in both diagnosing and fixing any problems is so ... sane! It just had to happen in Minnesota.
Second, the Commission goes out of its way in this report to explain how small and manageable the problems are. The report says time and again that Blakely affirmed the validity of presumptive guideline sentences, and the problem in Minnesota is really limited to the upward departure sentences. No changes in the basic structure, with its twenty years of history, is needed.
There are some hard numbers to back up this claim. Although there were 1002 upward departures in Minnesota for 2002 (counting both dispositional and durational departures), only 79 of those cases went to trial and the Kansas experience suggests that the number of trials will not go up quickly now. In addition, about 50-60 cases per year involve special "statutory enhancements" such as predatory sex offenders or career offenders that might create Blakely problems.
But in a couple of unobtrusive paragraphs late in the report, the Minnesota Commission notes two loudly ticking time bombs. Blakely might affect all cases involving a "custody status point" (an additional criminal history point added if the current offense was committed while still on probation or parole status from a previous crime), and Blakely could affect all probation revocations. These two categories could dwarf the 79 + 60 cases with big Blakely issue noted earlier in the report.
One last observation: the report rightly points out that prosecutors involved in Blakely negotiations or litigation will have additional obligations to follow up with victims and explain the situation. Can you imagine how those conversations might go?
Waiver and the Fine Print
Post from Ron:
Chief Judge Sven Erik Holmes of the Northern District of Oklahoma filed an order today (download available below) in United States v. O'Daniel, holding that Blakely applies to the federal guidelines and sentencing the defendant under modified procedures.
The distinctive feature of this case deals with waiver: the defendant waived a jury trial before Blakely in a plea agreement rich in factual detail. When the judge proposed vacating the guilty plea in light of Blakely, the defendant refused to return to status quo ante and renegotiate. Instead, he insisted on sentencing under the plea agreement, but with the upward adjustments to the offense level no longer available.
The judge went forward with sentencing, taking at face value the defendant's plea agreement statement (remember, this was drafted pre-Blakely) that allowed the judge to enhance the sentence based on judicial factfinding. By the same token, the judge refused to accept the Government's contention that the standard of proof should remain preponderance of the evidence, and instead found the relevant facts beyond a reasonable doubt.
It's a tricky question, and likely to occur. Which provisions of existing plea agreements will be enforced (especially when defendants refuse to start over) and which will the judge ignore?
The opinion also addresses the details of waiver in future cases, and notes that the court will insist that any waiver of trial must also include a waiver of jury factfinding for sentence enhancements -- no partial waivers allowed. And finally, the opinion notes that in some cases, judges may need to order bifurcated federal trials, where the sentence enhancements would prove too prejudicial in the guilt-innocence trial.
Minnesota's Commission Speaks
Post from Ron:
This afternoon the Minnesota Sentencing Guidelines Commission conveyed its Blakely report to the Minnesota Governor. Here is a link to the report. And here is the money quote:
The recent Blakely v. Washington decision directly impacts neither the constitutionality nor the structure of the Minnesota Sentencing Guidelines. However, the decision does affect certain sentencing procedures pertaining to aggravated departures and specific sentence enhancements that will need to be modified to meet the constitutionality issues identified under Blakely. Those procedures can be corrected, as demonstrated by the state of Kansas, who addressed this very issue in 2001, with limited impact on the criminal justice system as a whole. The impact of Blakely on sentencing in Minnesota, while temporarily disruptive, is limited in scope and can be addressed within the current sentencing guidelines scheme.
I come to sentencing questions with a keen interest for state systems, since the state courts (collectively) process far more defendants than the federal courts and offer more interesting and hopeful variety in their solutions to problems of crime and justice. So you'll be hearing more from me about this Minnesota report after I've read it. In the meantime, you've now got your own copy to peruse. What do you think?
Keep those cards and letters cc-ing
Post from Ron:
Doug loaned me the keys to this car, and I promised not to wreck it while he is away. Hmm, wonder how well it corners?
The amazing success of this blog has a few components. One of them -- Doug's joyful engagement with the subject -- I certainly won't try to replace. But another ingredient of blog success can remain in place even while Doug is on the road and checking in less frequently. That ingredient is input from readers of the site. I am depending on you! If you learn about interesting sentencing developments (Blakely-related or otherwise), I hope you will mention them in the comments on this site, or send me an email at firstname.lastname@example.org. Be sure to send a copy to Doug, as well, because he will still check in from time to time.
I'm looking forward to a great ride over the next few days.
Because I am about to make like Clark Griswold and head to the golf equivalent of Walley World, blogging will be a a bit lighter over the next 10 days.
But regular readers of course know that Jason Hernandez at the Blakely Blog will keep up on breaking Blakely news and Howard Bashman at How Appealing will continue to be an effective collector of Blakely news stories.
Plus I am very pleased to report that my co-author and fellow sentencing aficiando Professor Ron Wright has agreed to do a little guest blogging while I am away. And, because I cannot go cold turkey, I expect to get on-line every so often during the next week or so to post when I can.
While I am away, I encourage readers to continue to make robust use of the comments feature. And readers interested in particular issues should remember to use the search box in the left side-bar to focus on topics like retroactivitiy or waiver or severability.
Challenging what Blakely does not change
Because Blakely only speaks to the application of the Sixth Amendment to facts which increase applicable maximum sentences, the Supreme Court's decision in Harris still stands for the proposition that facts which increase applicable minimum sentences can still be found by judges and by a preponderance of the evidence. (Although because of Justice Breyer's unusual fifth vote in Harris, the long-term validity of this precedent might be questioned.) This is among the reasons some are concerned that legislatures will respond to Blakely by enacting a rash of new and harsh mandatory minimum statutes.
But, as this article concerning the case of Weldon Angelos highlights, there are plenty of old and harsh mandatory minimum statutes already applicable in the federal system. Mr. Angelos, a first time offender, faces a federal sentence of 63 years of which 55 years are required under federal mandatory minimum sentences.
Documenting that he was concerned about federal sentencing practices well before Blakely and his Croxford opinion, Utah US District Judge Paul Cassell raised questions about the constitutionality of mandatory minimum sentences in the Angelos case back in February, and he directed defense attorneys and federal prosecutors to file briefs on the issue prior to sentencing in the case.
The case is making headlines now because last week a group 29 former legal officials — including former US attorneys, federal judges, and a former US attorney general — filed an amicus brief on Angelos' behalf, arguing that his sentence would be unconstitutional on various ground (most specifically as a violation of the Eighth Amendment's prohibition of cruel and unusual punishments).
I was fortunate to receive this amicus brief from the lawyers at Greenberg Traurig, LLP who put together this impressive amicus effort. The brief is a great read (and includes an impressive list of signers at the end). Here it is for your reading pleasure:
Another fascinating read from a District Court
The Vera Institute's report, "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems," provides a stunning view of the post-Blakely world from a system-wide perspective. In contrast, US District Judge Gerald Lynch's recent opinion in US v. Emmenegger (details here) provides a stunning view of the post-Blakely world from a case-specific perspective.
Among other virtues, Emmenegger provides the most thorough and thoughtful iteration of the impact of alternative sentencing schemes in the wake of Blakely, while also providing a mini-primer on relevant sentencing considerations along the way. Interestingly, Judge Lynch's opinion exhibits a hint of grumpiness about the Second Circuit's failure to provide guidance to its district courts and also takes a swipe a Blakely's formalism. And this is all in service to reaching the (interesting but contestable) conclusion that "sentencing guideline systems seem more analogous to the kinds of fact-finding that judges historically performed under discretionary sentencing regimes, and less comparable to the creation of innumerable degrees of separate crimes."
Though Emmenegger is full of interesting facets — including Judge Lynch's conclusion that he would impose a sentence of 33 months under the guidelines, but a sentence of only 24 months if the guideline were not legally binding — I am always drawn to court's severability analysis. And, once again, I feel like we are left with more questions than answers (compare here).
Judge Lynch states clearly his view that if upward enhancements based on judicial fact-finding are unconstitutional, then "the entire structure of the Guidelines must fall." Slip op. at 39. And yet, because Judge Lynch treats 18 USC 3553(a) as if it were still legally binding even if the guidelines were wholly unconstitutional, see slip op. at 21, it seems as though he believes the SRA (or at least a key portion thereof) would remain in force even as the Guidelines fall. But Judge Lynch never explains why part of a statute designed to create binding Guidelines is severable from the constitutionally infirm "entire structure" that this statute authorized. He also never indicates whether other parts of the statute — e.g., the elimination of parole, the creation of suprevised release, the authorization of appellate review — stand or fall in light of his severability analysis. In addition, Judge Lynch speaks of the intention of the Sentencing Commission in his severability anlysis, see Slip op. at 39, though I am left to wonder why a judicial branch agency's intent is directly relevant to a severability question considered a matter of "legislative intent." (Perhaps we could claim that Congress adopts the Commission's intent (or vice versa), but the disgreements between Congress and the USSC over the PROTECT Act highlight that these bodies might often have quite distinct intentions.)
Of course, since the severability analysis is all dicta, perhaps I cannot rightly fault Judge Lynch for not providing a fuller analysis. And yet, this is important dicta since Judge Lynch concludes that "the Court will in all future cases announce its alternative view of an appropriate sentence if the Court has discretion to impose sentence within the statutory range." And this decision to announce alternative sentences is itself intriguing in that Judge Lynch assails the idea of employing "sentencing-jury trials" because they are "completely unauthorized by any constitutional provision, statute, judicial precedent or tradition." Slip op. at 40. And yet, I think the exact same charge could be leveled against the announcement of alternative sentences, since such a practice is at least arguably "completely unauthorized by any constitutional provision, statute, judicial precedent or tradition."
State of the States
In her Blakely dissent, Justice O'Connor identified nine states in addition to Washington with guideline systems that could be impacted by the Blakely ruling: Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Oregon, and Pennsylvania. But the rapid reaction to Blakely in states like Arizona (details here and recent news report here) and California (details here and here) and Tennessee (details here) suggested that perhaps a much larger number of states will have to grapple with Blakely's impact on their sentencing systems.
The stunning and important report from the Vera Institute today (details here) confirms that the impact of Blakely in the states is far and wide. The Vera report identifies 21 states with structured sentencing systems that could be directly impacted by Blakely, and it also notes that "Blakely has implications for other state sentencing provisions" as well. Proving this point is this article discussing the effect of Blakely in Maine (which does not appear on Vera's list of likely impacted states).
The Vera report is a must-read for all Blakely followers because of its consistently insightful analysis, which includes trenchant observations about Blakely's "potential to reshape sentencing in the United States" and about the "apparently perverse result of the Blakely ruling." The questions raised and uncertainty caused by Blakely are highlighted throughout the Vera report, which in turn makes me eager to see a promised companion report from Vera entitled "Legal Considerations for State Sentencing Systems."
Finally, though I am not sure exactly when future Vera reports are coming, I do know that additional state discussion of Blakely is imminent. Various sources have reported that the Minnesota Sentencing Guidelines Commission will release its short-term report on Blakely this Friday afternoon. Indeed, here's an article with some early sketchy details about the report.
August 5, 2004
Blakely-coping, California style
As if the day was not already mind-boggling enough, a reader from California was kind enough to send along news of this startling Standing Order that was recently entered by the Fifth District California Court of Appeal. The Order clearly is an effort to cope with (or perhaps just duck) Blakely issues until the California Supreme Court addresses Blakely's California meaning in two cases already slated for review. (Those two California cases are People v. Towne (background here), and People v. Black (background here). Here's the full text of the Standing Order:
Effective August 3, 2004, this court will no longer compensate appointed counsel for research or briefing directed to any issue presented by Blakely v. Washington (2004), pending opinions by the California Supreme Court in People v. Towne (review granted Jul. 14, 2004, S125677), and People v. Black (review granted Jul. 28, 2004, S126182).
However, if counsel or appellant wishes to raise a Blakely issue in any case pending before this court, he or she may file a letter stating with precision the Blakely issue[s] he or she wishes to raise on the appellant’s behalf and this court will deem such issue[s] raised, thereby preserving the appellant’s ability to seek review of the issue[s] in the California Supreme Court. The failure to identify an issue by a letter will operate as a waiver. The People, through the Attorney General, need not file any response to such a letter statement and the court will deem the stated issue[s] to be opposed by the People.
The Court may request further briefing in any case and will reevaluate this order after the California Supreme Court rules in Towne and Black. This order does not apply to any pending appeal in which this court has ordered or authorized, on or before August 2, 2004, specific briefing on a Blakely issue. The purpose of this order is to ensure that the subject issues will be raised and preserved for review in an efficient manner.
Dated: August 2, 2004
DIBIASO, ACTING P.J.
I am not sure whether to decry this order as unconstitutional or praise it as brilliant. It does reinforce for me the enormous challenges courts face trying to sort compelling Blakely claims from frivolous ones. I am not sure this Standing Order — with its slightly hidden "waiver" threat — is a sound (or even legally permissible) sorting mechanism. But I am not surprised to see a court looking for life preservers in the face of a tidal wave of Blakely claims.
The Vera Institute Speaks!!
The Vera Institute of Justice — which has been long been doing extremely important justice-related projects and in recent years been especially involved in state sentencing reform through its State Sentencing and Corrections Program — has just released a publication that looks at the impact of Blakely on state sentencing systems. The Vera report is entitled "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems," and it can be accessed here.
For a taste of what Vera contributes, here's a brief account from the report's authors Jon Wool and Don Stemen:
Few Supreme Court decisions have caused the turmoil that many state courts and practitioners are now experiencing as a result of Blakely v. Washington. The Court ruled that the Sixth Amendment forbids a judge to increase a criminal sentence based on facts not found by a jury beyond a reasonable doubt. The immediate effect? The invalidation of procedures used in Washington State's sentencing guideline system and the casting of doubt on the constitutional validity of structured sentencing systems nationwide. In more than 20 states, officials will need to look seriously at major aspects of how defendants are sentenced and many will need to make policy changes.
This publication is the first in a series that Vera's State Sentencing and Corrections program will produce as part of its effort to provide timely and helpful analysis of Blakely's reach, offer practical advice to state lawmakers needing to realign their systems, and report on state reactions to the ruling. In this first report, we look to answer two big questions: Which states' sentencing systems are affected by Blakely? and What responsive options are available to legislators and other policymakers?
Vera also has plans in the works to convene a national meeting in Denver on September 22-23, 2004, for teams of officials from selected states affected by Blakely. According to Vera officials:
This day-and-a-half discussion will provide an opportunity for state policymakers to engage with each other and with leading practitioners and experts to develop feasible strategies — both immediate and longer-term — for responding to the Court's ruling. Vera will cover travel and all other meeting costs for participants. Because participant space is limited, invitations will be extended based on an application process. States are asked to complete this linked application and return it to Vera by Friday, August 20, 2004.
Finally, as noted before here, Vera (which, by the way, also co-produces the Federal Sentencing Reporter) will host on Thursday, August 12th an early morning discussion on the implications of Blakely for the federal sentencing guidelines. Frank Bowman, one of FSR’s editors, will be the guest speaker. Vera asks that those interested in attending download the invitation here and RSVP because space is limited.
Just when you thought it was safe to go into the blog...
On a day I was hoping would be quiet so I could wrap up critical pre-vacation tasks, we get yet one more major event: another thoughtful and insightful (and long) Blakely opinion from district judge who is rightly regarded as an intellectual leader in the field of sentencing. Available for download below is US District Judge Gerald Lynch's opinion in US v. Emmenegger. As an esteemed sentencing scholar noted when sending me this opinion:
Like Judge Nancy Gertner, Judge Lynch is one of the most sophisticated judges on the federal bench in sentencing issues. And yet we see Judges Gertner and Lynch at odds on the main issue: Judge Lynch "remains convinced" of the constitutionality of the federal guidelines (Emmenegger at 38) while Judge Gertner sees "no question that [Blakely's] test applies to the federal guidelines. " (Mueffleman at 22). Further proof was not needed that the Supreme Court has rendered the current law in this field unintelligible, but here it is.
More fireworks in the Eighth Circuit
Another noteworthy decision was handed down by the Eighth Circuit today in US v. Pirani, No 03-2871 (8th Cir. Aug. 5, 2004). This panel decision authored by Judge Bye advances the Blakely analysis in various ways: (1) it conducts a plain error analysis to a new Blakely claim and concludes that pre-Blakely judicial fact-finding is plain error and (2) speaks at least indirectly to the recent wandering (rebellion?) of Judge Bataillon US v. Swan (background here).
Here's some of what (two judges of) the Eighth Circuit had to say:
Though the mandate in Mooney has yet to issue, we believe the decision represents binding precedent on a matter sure to receive the attention of the Supreme Court or this court en banc, or both, in the near future. Without expressing an opinion regarding the constitutionality of the Guidelines system in its entirely, we hold Blakely extends to the Sentencing Guidelines at least to the extent they require the courts to impose punishment based on judicially found facts. Because the Blakely Court did not address the impact of its decision on the Sentencing Guidelines, we recognize all judicial opinions addressing the impact of Blakely upon the Guidelines depend on a modicum of conjecture as to what the Supreme Court will do if and when it finally addresses the issue, and all are thus part of an unsettled and yet-forming body of law....
Because [the defendant Pirani] did not object to the sentence under Apprendi in the district court, we review the sentencing decision for plain error. Even under this heightened standard, we agree with Mr. Pirani his sentence violates principles underlying the rule of Apprendi when considered in view of Blakely.... In effect, Louis F. Pirani was charged with and convicted of one crime but sentenced for another.... Furthermore, we conclude such a deprivation of Mr. Pirani's constitutional right amounted to plain error. We are mindful an error cannot be plain unless it is "obvious" or "clear under current law." Because the circuits are currently split on whether Blakely applies to the Sentencing Guidelines, it may be said the error in this case falls short of the plain error standard. Even if precedent in our own circuit precluded plain error where there is a circuit split, we would find the argument unpersuasive because it ignores the realities of current affairs....
In an equally fun read, Judge Smith writes as follow in an opinion concurring in part and dissenting in part:
At the outset, I am satisfied that the district court–in the pre-Blakely landscape–correctly sentenced Mr. Pirani.... But what of Blakely? Could the district court be correct in its application of the Guidelines, but plainly err by complying with the strictures of the federal-sentencing scheme? The effects of the Blakely decision on the ultimate constitutionality of the United States Sentencing Guidelines is anything but clear. How, indeed, can an error be plain, when as the majority eloquently notes, " . . . we recognize all judicial opinions addressing the impact of Blakely on the [G]uidelines depend on a modicum of conjecture as to what the Supreme Court will do if and when it finally addresses the issue, and all are thus part of an unsettled and yet-forming body of law"?....
As such, by its own admission, the majority is shooting at a moving target. Although we are unsure of the Court's ultimate position on the constitutionality of the federal sentencing legislation, the same cannot be said for the Court's position on plain-error review. The Court has held definitively, "[a]t a minimum, court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law." Given the unclear state of the law, as it relates to the Guidelines, I cannot agree that plain error has been shown.
August 5, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Paging habeas experts...
Though a number of courts have already spoken to Blakely retroactivity issues in various ways, I believe the new decision by Senior US District Judge Thomas J. McAvoy (NDNY) in Garcia v. US, 2004 U.S. Dist. LEXIS 14984 (NDNY Aug. 4, 2004), is the first to do a complete Teague retroactivity analysis in order to deny a federal petitioner relief on a Blakely habeas claim.
Because I am not an expert on habeas law, I am hesitant to say Garcia got the law all wrong. But, I think I see at least two major flaws in Garcia's analysis of Blakely's retroactivity:
First, Judge McAvoy starts his analysis by asserting "Blakely did not announce a new rule of law, but extended the rule in Apprendi holding." Id. at *14. I believe, if this is the case, then the Teague doctrine limiting retroactivity does not even apply. I am pretty sure Teague is a doctrine which applies only to "new" rules, not to the application of old rules. I believe this is why Justice O'Connor in her Blakely dissent said that, despite the High Court's holding in Schriro that Ring was not retroactive, "criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack."
Second, when Judge McAvoy launches into his Teague analysis, he relies very heavily on the Supreme Court's decision in Schriro to conclude "Blakely cannot be said to establish a watershed rule of criminal procedure," id. at *16-*18, and thus does not fit into Teague's second exception to its doctrine limiting retroactivity of new rules. However, as I previously highlighted here, in Schriro there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion in Schriro); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely.
Because habeas law is so complicated doctrinally, both as a consequence of Teague and its progeny and also because of Congress' restrictions on habeas in AEDPA, my analysis here of Judge McAvoy's ruling in Garcia may be all washed up. But because this issue is so important, I hope readers more knowledgeable about habeas law might use the comments for any important corrections or clarifications.
So much sentencing news to report
It's another morning with broad sentencing coverage in the newspapers, and Howard Bashman has the goods here.
There are lots of interesting federal and state Blakely stories in today's collection of articles, including this account of the on-going sentencing hearing in the case of former Wisconsin state Senator Gary George. According to the article, US District Judge Rudolph T. Randa has said "he would conduct George's sentencing under the law used before the guideline system was implemented, which allowed judges to sentence defendants within wide ranges established by Congress. He said he would use the guidelines as 'a valid resource.'"
And this article discusses the remarkable decision of the US Attorney for Northern District of Indiana to seek a blanket stay of all sentencings in his district (discussed here). The article notes that his counterpart in the Southern District of Indiana "said Tuesday she did not plan to request a delay in sentencings. Susan Brooks said her prosecutors would keep in mind the high court's involvement as they considered each criminal case."