August 31, 2004
An early brief to SCOTUS, sort of
I have tomorrow circled on my calender because September 1 is the date that the Acting Solicitor General (and any amici in support of petitioners) must file briefs in Booker and Fanfan. I expect the brief from the SG's office to be brilliant and pathbreaking, though whether it will be convincing to the Justices is the big question. Whatever the case, I hope to be able to share the SG's brief (and also the USSC's expected amicus brief) tomorrow afternoon.
In the meantime, Professor Frank Bowman has been kind enough to share with me his own brilliant and pathbreaking work in the form of an article which he has described as "his amicus brief" to the Supreme Court. The article, which can be downloaded below, is forthcoming in the American Criminal Law Review and is entitled "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington."
Of course, readers of the blog should be familiar with Frank's work through his insightful and noteworthy memoranda to the US Sentencing Commission soon after Blakely was handed down (available here and here). A summary of this latest effort can be accessed through the SSRN service here, though the entire article demands to be read to appreciate all of the nuances and metaphors in Frank's work. Let me here share the provocative article's evocative opening paragraph:
On June 24, 2004, five black-clad figures seized control of the Criminal Justice Express, crashed through warning barriers, flattened the Washington State Sentencing Guidelines, opened the throttle, and sent the train hurtling from the main line down the old rail spur where the Federal Sentencing Guidelines and the sentencing systems of numerous states lay tied helplessly to the tracks. Whereupon, the 2003 Term of Court being concluded, the justices twirled their collective mustachios, sent their robes off to the cleaners, and went on vacation. Two months on, as this Essay goes to press, the rest of us stand staring slack-jawed, some delighted and some aghast, at the disarray and paralysis in the locomotive’s wake and the impending carnage at the end of the line.
More from the Seventh Circuit (and Judge Easterbrook)
Just out from the Seventh Circuit is US v. Messino, 02-1411 (7th Cir. Aug. 31, 2004), which provides more guidance on the holdings of Blakely and Booker. Though a quick analysis is hard because there are three defendants' claims involved, it does not appear that any new ground is broken by the majority on basic guideline issues. But the opinion includes this interesting discussion about Blakey's effect (or lack of ) on forfeiture:
We have previously held that Apprendi has no effect on criminal forfeiture proceedings because forfeiture provisions have no statutory maximum. United States v. Vera, 278 F.3d 672, 673 (7th Cir. 2002). Apprendi’s statutory maximum was supplied by the statute of conviction; Blakely's is external—the statutory maximum is found not in the criminal code, but instead, the sentencing guidelines. See Booker, 2004 WL 1535858, at *1. The criminal forfeiture provisions do not include a statutory maximum; they are open-ended in that all property representing proceeds of illegal activity is subject to forfeiture. Vera, 278 F.3d at 673; U.S.S.G. § 5E1.4; 21 U.S.C. § 853. Therefore, we conclude that Blakely, like Apprendi, does not apply to forfeiture proceedings.
In addition, Judge Easterbrook dissenting in part in Messino has a number of interesting and important points to make about plain error review and also burden of proof issues. Further commentary on Judge Easterbrook's important (and contestable) insights will have to await another post late tonight.
Judge Presnell Speaks again!
Despite being in hurricane alley, US District Judge Gregory A. Presnell of the Middle District of Florida continues to do amazing and important sentencing work (his prior rulings can be found here and here). His latest contribution comes in US v Shelton, No. 6:04-cr-72-Orl-31KRS (M.D. Fla. Aug. 30, 2004), which can be downloaded below.
After running through standard guideline calculations in a relatively standard crack case, here's what Judge Presnell says in Shelton:
There you have it — a simple, rational, fair and humane way to determine an appropriate sentence under the U.S. Sentencing Guidelines. In sum, Defendant is not an individual, he is a number, i.e., 31-VI.
In U.S. v. King, Case No. 6:04-cr-35-Orl-31KRS, this Court held the U.S. Sentencing Guidelines unconstitutional, but indicated that it would look to the Guidelines for guidance. In this case, the Guidelines do not produce a just result. Mr. Shelton is a small-time drug user/dealer. The instant offense involved a trivial amount of drugs and his prior convictions (all served in one concurrent sentence) are subjectively stale by any reasonable standard. Under these circumstances, a 15-year sentence is clearly unwarranted.
This case illustrates the concern Justice Kennedy expressed by America’s reliance on incarceration as a means of criminal punishment, especially for drug-related offenses. At its meeting on August 10, 2004, the American Bar Association’s House of Delegates approved the Kennedy Commission’s recommendations which, among other things, urge repeal of mandatory minimum sentences and the exercise of judicial discretion; reserving lengthy sentences (like this) for offenders who pose the greatest danger to the community. Defendant is not one of these people.
Considering all relevant factors, including Defendant’s criminal history, the Court believes that a sentence of 70 months is appropriate.
Download us_v. Shelton (04-cr-72).pdf
Consecutive questions about consecutive sentencing
As I have suggested before here and here, the "prior conviction" exception should be — and perhaps through Shepard v. US will be — the next major Blakely issue for the Supreme Court to address after they resolve in Booker and Fanfan the applicability of Blakely to the federal guidelines. But two cases from the California state courts yesterday highlight that the issue of Blakely's applicability to judicial imposition of consecutive sentences will need to be directly addressed soon, too.
In People v. Vue, 2004 WL 1922504 (Cal. App. 3d Dist. Aug. 30, 2004), and People v. Lopez, 2004 WL 1922844 (Cal. App. 6 Dist. Aug 30, 2004), two different intermediate California appellate courts amended opinions to reject Blakely-based attacks on the imposition of consecutive sentences. Interestingly, in both cases the court said that, even if Blakely applies to factors used to impose consecutive sentences, the defendants' claims would be unavailing because of facts established at trial or admitted in a plea. Whatever one thinks of the specifics of these interesting rulings, they are a reminder of another important "Blakely front." (Recall that the California Supreme Court has agreed to consider this specific question in People v. Black, discussed here, though I suspect rulings in various states that will struggle with this question may not all end up consistent in their interpretations of Blakely and the Sixth Amendment.)
Seeking restitution on restitution
Because restitution orders are becoming more common in state and federal courts, many have wondered whether and how Blakely might impact such orders. As noted here, the Tenth Circuit previously spoke quickly (perhaps too quickly) to this issue in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004).
Yesterday the Ninth Circuit in US v. DeGeorge, 2004 WL 1920922 (9th Cir. Aug. 30, 2004), contributed a view on the restitution issue in a case applying an older federal law on victim restitution. Here's what the court said:
We first review the restitution order made by the district court pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. §§ 3663-3664, which is unaffected by Blakely. See, e.g., United States v. Baker, 25 F.3d 1452, 1456 (9th Cir. 1994) ("[R]estitution determinations under the VWPA are quite different from sentencing determinations under the Sentencing Guidelines.").
Because I believe that the VWPA, passed by Congress in 1982, made an award of restitution wholly discretionary, the Ninth Circuit may be right that Blakely does not affect its application. However, in 1996, Congress passed the Mandatory Victims Restitution Act (MVRA), which now makes restitution mandatory for particular crimes, and thus the Blakely analysis might be different under that statute. See generally US v. Alalade, 204 F.3d 536, 538-41 (4th Cir. 2000) (discussing changes in sentencing court's discretion after passage of MVRA). And, of course, state restitution provisions will need to be distinctly examined to see if and how their structure and terms could be impacted by Blakely.
In the end, as will be the case with so many post-Blakely issues, a lot of litigation may be needed to sort this all out.
August 30, 2004
Yet another helpful (future FSR) resource
I am pleased to be able to share another draft article that is forthcoming in the next issue of the Federal Sentencing Reporter (which will be FSR's second rapid-fire issue covering Blakely). The article, available for downloading below, is by Ian Weinstein and Nathaniel Marmur and is entitled "Federal Sentencing During the Interregnum: Defense Practice as the Blakely Dust Settles." As the title suggests, this article should be especially helpful to the federal defense practitioner, although everyone involved in sorting out Blakely ought to benefit greatly from this piece. Here's an introductory snippet:
In this period of uncertainty, and perhaps for some time into the future, counsel must think about Blakely at the inception of a case and consider its effect on pretrial motions, including motions to dismiss indictments, discovery and evidentiary issues. We must also question the continued vitality of what we thought was settled law, including the constitutionality of judicial fact finding in mandatory minimum sentencing and the "prior conviction exception" of Almendarez-Torres. Of course, Blakely presents novel issues as well. Counsel must start thinking about bifurcated trials, sentencing juries, jury instructions on sentencing issues and Blakely waivers. In short, defense counsel must consider arguing Blakely's implications from bail through habeas petitions.
I am also pleased to report that the entire contents of FSR's first Blakely issue, entitled "The Blakely Earthquake," is now available electronically via the on-line service Caliber at this link. The basic details and full contents of that FSR issue can be found here and here.
Alternative (sentencing) universe?
One of the many fascinating issues arising in the post-Blakely world is the legality and appropriateness of alternative sentencing. Recall that orders from the Fourth and Sixth Circuits have "recommended" to district courts that they announce an alternative sentence "in the interest of judicial economy," although I speculated here about whether such an unusual procedure would in fact be economical. Also recall that Judge Goodwin is on record in US v. Johnson, 2004 U.S. Dist. LEXIS 16077 (S.D. W. Va. Aug. 13, 2004), saying that alternative sentencing is unwise and perhaps unlawful (details here). Finally, I cannot help but note that, perhaps "in the interest of judicial economy," the Sixth Circuit's recent opinions in Koch did not say a word about the court's alternative sentencing order.
Whatever courts and observers might think of alternative sentencing, apparently the Federal Bureau of Prisons is not a big fan of the practice. The recent memorandum from the Judicial Conference's Criminal Law Committee to all federal judges, judicial executives, court clerks and chief probation officers (discussed here) includes this interesting and telling paragraph on alternative sentences:
As the agency responsible for administering the execution of federal sentences, the Federal Bureau of Prisons advised the Committee of its concerns with regard to the issuance of alternative sentences. It is the Bureau of Prisons' position that its staff cannot unilaterally determine whether an appellate court's decision invalidates the primary sentence of a criminal judgment that sets forth an alternative sentence. Consequently, the Bureau of Prisons indicates its intention that a sentence alternative to the one primarily imposed will be executed only upon unequivocal direction from defendant's sentencing court through an amended criminal judgment, or other re-sentencing order.
This passage — as well as Judge Goodwin's Johnson opinion and the extended silence from the Fourth and Sixth Circuits on this issue — confirms my general sense that alternative sentencing is a better idea in theory than in practice.
I know a good number of courts, following this initial suggestion of Judge Cassell in his path-breaking Croxford ruling, have imposed alternative sentences of some form. I wonder if anyone has been able to tally how many alternative sentences have been announced or has tried to study the basic characteristics of such rulings. Though perhaps a nightmare for the Federal Bureau of Prisons, the statement of alternative sentences seems like an academic's dream.
Back to School, Blakely style
As indicated here, classes at OSU Moritz College of Law have been underway for nearly two weeks now. But with the coming of Labor Day marking "back to school" realities for everyone, I cannot resist the urge to reflect here on the amazing summer developments in the field of sentencing law and policy.
Obviously, the biggest sentencing story of the summer was Blakely, and the amazing post-Blakely events highlight the incredible power that the Supreme Court has to transform legal realities and policy discussions. (Dahlia Lithwick, also in end-of-summer mode, makes a similar point in a much more playful way in this NY Times Op-ed.) And though the Supreme Court Justices decided not to cut short their summer break to hear early the follow-up cases of Booker and Fanfan, I suspect around the High Court the last few months might still be called "the summer of Blakely." Helpfully, this thoughtful article from The Great Falls Tribune provides a useful overview of why it has been a Blakely summer for all other federal courts.
Yet, as a few clicks on my Topical Archive reveals, there have been many other significant and noteworthy sentencing law and policy developments this summer. Important legal and policy debates over the death penalty never abate (some details here), and an interesting shaming case highlighted a summer of re-thinking of our society's traditional and heavy reliance on incarceration (some details here and here).
Although we did not learn in kindergarten all we really need to know about Blakely, Chief District Judge Donald Molloy of the District of Montana highlights in the article linked above that Blakely is so interesting (at least to me) because, in one way or another, the case and its aftermath implicate so many of the fundamental legal issues we all studied in law school. Just my posts this weekend on Blakely's formalism and possible extension reinforce this point.
Finally, the teacher and academic in me wishes I could require everyone in the sentencing field to write an essay on "What I did this summer." (Though perhaps in all the courtrooms postponing sentencing the essay would be entitled "What I didn't do this summer.") In this vein, I was excited to see this recent memorandum from the Judicial Conference's Criminal Law Committee sounding like my high school math teacher by encouraging all courts to "show their work."
Thoughtful discussion of federal sentencing
Though I have not yet had a chance to watch the full program (which runs nearly two hours), I was quite impressed by the first part of the program (and also learned that Justice Scalia has the courage to root for the NY Yankees even in Camden Yards).
August 29, 2004
An "official" Blakely scorecard
With thanks yet again to another FOB ("friend of blog"), I have received and provide for download below a copy of a fascinating memorandum dated August 27, 2004 sent to all federal judges, judicial executives, court clerks and chief probation officers. The memo comes from US District Judge Sim Lake (SD Texas), Chair of the Committee on Criminal Law of the Judicial Conference of the US, and concerns "Sentencing Documentation in Light of Blakely v. Washington."
The whole three-page memo, and its attached form, merit full examination. Here are some of the highlights to whet your appetite:
The Judicial Conference Committee on Criminal Law has been closely monitoring the courts' responses to Blakely v. Washington, 124 S.Ct. 2531 (2004). Some courts continue to sentence in accordance with the federal sentencing guidelines, including relevant enhancements. Other courts are partially applying the guidelines, and some courts are not applying the guidelines at all. At the direction of some circuit courts and in the interest of judicial economy, some district courts are also announcing, at the time of sentencing, alternative sentences in the event the Supreme Court rules in a way that invalidates the original sentence. Some courts are stating alternative sentences for illustrative purposes, recognizing that further judicial action may be necessary, while other courts may be imposing alternative sentences intended to be self-executing so that no further action would be required if the initial sentence were invalidated. In addition, some courts are imposing three separate sentences: a guideline sentence, a guidelines-as-advisory sentence, and a sentence ignoring only the sentence-enhancing components of the guidelines....
Since Blakely was decided, the Committee has had ongoing dialogue with the United States Sentencing Commission and the Federal Bureau of Prisons on how best to standardize data collection to reflect the district court rulings with respect to sentencing decisions. The United States Sentencing Commission has determined that part of its mission of monitoring application of the guidelines includes recording how Blakely is impacting sentencing decisions.
To assist the Commission in this effort, the Committee recommends that courts complete the attached “Supplemental Statement of Reasons,” which indicates generally how Blakely was applied in a case.
Gearing up and taking stock
The Blakely action kicks in to high gear again this coming week, with briefs due to be filed in the Supreme Court in Booker and Fanfan by the Acting Solicitor General and the US Sentencing Commission (and perhaps others?) this Wednesday, Sept. 1. Helpfully, this article from today's Chicago Tribune provides a broad overview of all the Blakely action over the last two months.
Meanwhile, every time I check on Westlaw or Lexis, I find more (often older) noteworthy Blakely decisions from state and federal courts. See, e.g., Commonwealth v. Aponte, 2004 WL 1857129 (Pa. Aug. 19, 2004) (holding that state statute doubling statutory maximum penalty upon proof of prior conviction for a similar offense, without requiring proof beyond a reasonable doubt before a jury, did not violate defendant's due process rights); US v. Brown, 2004 WL 1879949 (N.D. Ill. Aug. 18, 2004) (granting continuance, over the defendant's objection, based on conclusion that "the interest of justice compels a continuation of the trial because of the uncertainty of the law involving the Supreme Court's decision in Blakely"); US v. Fotiades-Alexander, 2004 WL 1845552 (E.D. Pa., Aug. 12, 2004) (finding no Blakely violation, because "even if Blakely were to apply to the federal sentencing guidelines, [the defendant] admitted to [key] facts during the plea colloquy").
In fact, barely two months after the Blakely decision, the on-line search engines reveal more than 250 state or federal decisions mentioning Blakely v. Washington, and I I have received at least a dozen orders mentioning Blakely that do not appear on these services. If anyone is trying to assemble a master list of Blakely decision (in state or federal courts), I would be grateful to receive (and be able to share) such a valuable document.