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September 11, 2004

USSC's views about severability??

After many brief-related posts on the applicability of Blakely to the federal sentencing guidelines (see, e.g., posts here and here and here; see also Hammoud post here), this weekend I am starting to focus on the Booker and Fanfan briefs' approach to the even tougher issue of severability.

Though a lot more severability analysis will follow in this space (and follow-up my preliminary discussion here), my first observation here concerns the disconcerting absence of any severability analysis or discussion in the US Sentencing Commission's brief. The USSC's brief stresses it is an "independent" agency which spends all its time and energy analyzing sentencing decisions and data (cf. Jason Hernandez's effective post examining the USSC's brief). Given its own claims about its institutional role and work, the USSC should have the most informed and the most thoughtful perspective on the guidelines' ability to operate without judicial fact-finding of sentence enhancing facts. At the very least, one would hope and expect the USSC could figure out, and would make public, roughly how many federal sentences turn on judicial fact-finding of sentence enhancing facts. (Recall that, as detailed here, at least one Commissioner has publically opined that ''eighty percent of the cases in the whole country are unaffected" by Blakely.)

Moreover, the Solicitor General's brief asserts that "the severability analysis must take into account the intent of the Sentencing Commission." SG Brief at 45-46. If this is so, shouldn't we hear the intent of the USSC straight from the USSC? The SG's brief makes a number of representations about the Commission's intent, but remember that the SG is a party in Booker and Fanfan with a necessarily biased perspective on such issues.

My guess is, based in part on this report from Tony Mauro, that the USSC could not internally reach a consensus view on the tough issue of severability (or, dare I suggest the possibility, perhaps the USSC is working on a brief in support of the respondents on this issue). But, whatever the realities surrounding the USSC's legal (non)position on severability, I think the USSC undermines its own description of its institutional role and work if it does not soon disseminate at least some preliminary data about how many federal sentences in fact turn on judicial fact-finding of sentence enhancing facts.

September 11, 2004 in Severability of FSG | Permalink | Comments (0) | TrackBack

Ohio v. Scheer: a Rosetta Stone for sentencing reform?

I have previously discussed at length the fascinating challenges of figuring out what Blakely's formal rule might mean for Ohio's functional sentencing laws (see posts here and here and here). Yesterday, I found an intermediate Ohio appellate court decision, Ohio v. Scheer, 2004 WL 2008628 (Ohio App. 4 Dist. Sept. 1, 2004), which is fascinating for both Blakely and non-Blakely reasons. (Strangely, the decision is dated September 1, but only first appeared on-line yesterday.)

Though a fairly run-of-the-mill case, I think Scheer could be seen as a Rosetta Stone of sentencing reform. So many insights might be drawn from the case's facts and the court's ruling, careful study of the decision could, like the famed stone of Rosetta which helped scholars better understand the meaning of Egyptian hieroglyphics (background here and here), help scholars better understand the dynamics and challenges of modern sentencing reform. Let me try to explain.

Scheer involved appeal of a "sentence to the maximum, consecutive term of twelve months imprisonment for each of two counts of passing bad checks." Those familiar with Ohio law already can see how the case raises at least two Blakely issues, since a sentencing judge in Ohio must make certain findings before imposing a maximum term and also before imposing consecutive sentences. Adding to the intrigue, Scheer's two conviction followed a plea bargain in which "the State dismissed the remaining two counts of the indictment [which alleged more serious felonies] and agreed to recommend a sentence of community control sanctions if Scheer made full restitution to the victim in the amount of $89,698.81 prior to the sentencing hearing." If Scheer did not make restitution prior to sentencing, the State recommend six months on each count and a court order of restitution. The case thus also raises interesting questions about the impact of prosecutorial discretion and the use of alternatives to incarceration.

The story of Scheer goes on: "Scheer failed to appear at the original sentencing hearing, and was subsequently arrested on a warrant issued by the court. At the time of the sentencing hearing, Scheer had not made restitution." The court then — after making lengthy on-the-record statements referencing the seriousness of the dismissed counts, that the "Defendant has a lengthy and extensive criminal history ... and shows no genuine remorse concerning his actions herein," that the "victim in this case has suffered substantial economic harm," and the "purposes and principles under 2929.11 of the Ohio Revised Code," — concluded that Scheer "is not amenable to available community control sanctions." Based on all these consideration, the trial court thus "sentenced Scheer to twelve months incarceration on each count, the maximum sentence for a fifth degree felony, and ordered that the sentences run consecutively. The court also ordered Scheer to make full restitution to the victim."

The defendant in Scheer objected to some of the sentencing court's findings regarding his criminal history and lack of remorse, and thus the case raises a range of consequential Blakely procedural issues. And, of course, the judge's sentencing decision implicates broader substantive questions about consideration of "dismissed" conduct, criminal history, victim harms, lack of remorse, and "purposes and principles."

In an extremely thoughtful and yet still opaque ruling, the appeals court in Scheer rejects the defendant's Blakely claim, though without addressing every possible Blakely issue. The court also rejects the substance of the defendant's other legal and factual challenges to the sentencing court's decision. However the appeals court still reverses and remands Scheer's sentence with a ruling that raises questions about the importance of written sentencing findings and appellate review. According to the appeals court, the sentencing court's findings were not sufficiently linked to its final sentencing determination:

Although the court made the requisite findings, it did not state the rationale or reasons that support those findings for either the maximum or consecutive sentences. The court made certain factual findings when it determined that community control sanctions were inappropriate and imposed a prison sentence; however, the court never indicated that it was relying on some or all of these findings in imposing maximum or consecutive sentences.... While we recognize that it might seem we are elevating form over substance as the court's reasons for imposing the sentences might be gleaned from the transcript as a whole, the Supreme Court of Ohio has indicated that it will require strict compliance with the provisions of the sentencing statutes. Since the trial court did not specify which of its findings it relied upon in imposing maximum and consecutive sentences, we must reverse and remand this matter to the trial court for further action consistent with this opinion.

September 11, 2004 in Blakely in the States, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Media analysis of Blakely

Though we are still in the calm before the media storm I expect to see around the Booker and Fanfan arguments next month, there is still much important and insightful media coverage of the Blakely story in various quarters.

For excellent coverage of state sentencing developments, this article discusses Blakely's impact in North Carolina (covering cases noted here), and this article reviews Blakely's impact in Washington state and documents that in "three separate cases, three different Superior Court judges gave contrary rulings on" Blakely. In addition, this article notes Blakely's potential impact in a significant juvenile "bind-over" ruling in which a state judge determined that a 12-year-old accused murderer could be tried in adult court.

Relatedly, I now have had a chance to read the full text of Benjamin Wittes' article on Blakely to appear in the October 2004 issue of The Atlantic Monthly (available here to subscribers). I think the piece is both sensational and a bit sensationalized.

The Atlantic piece is sensational for appreciating the scope and importance of the ruling. In the piece, Wittes draws comparisons to Roe v. Wade and Brown v. Board of Education, and I don't think it is inappropriate to put Blakely in such company. I suggested two months ago in my Slate article that Blakely could prove to be the biggest Supreme Court criminal justice decision ever. Of course, only time and subsequent developments will tell Blakely's place in legal history; but what I have seen in the last few months only reinforces my view that Blakely is as big as it gets.

Yet, the Atlantic piece is also a bit sensationalized for some of its hyperbolic descriptions of the consequences of the Blakely ruling. For example, the piece suggests that Blakely will "guarantee leniency for criminals in as many as 270,000 federal cases" and also asserts that "it's almost inevitable that the decision will either make sentencing guidelines unacceptably rigid or loosen them to the point of meaninglessness."

Though I am sure many defendants and defense attorneys would love to believe that Blakely is a guarantee of leniency for so many, readers of this blog know that some federal defendants have actually received longer sentences after Blakely, and not a single defendant has yet convinced a federal court to apply Blakely retroactively. Moreover, I do not think it is inevitable (or even likely) that Blakely rings a death knell for effective sentencing reform.

In fact, as Justice Kennedy in this dramatic speech and the ABA in this recent report have emphatically documented, there is no reason to believe we had truly effective sentencing reform in the federal system before Blakely. Thus, I think the Blakely decision merits at least some praise for invigorating a (long overdue) national conversation about sentencing policies, practice and procedures.

September 11, 2004 in Blakely Commentary and News | Permalink | Comments (3) | TrackBack

September 10, 2004

Be careful what you wish for

Because of the mobius strip features of the post-Blakely world, many have repeated in various contexts the old cliche warning "Be careful what you wish for." I have previous suggested that the warning seems appropriate in response to arguments that Blakely is just an application of (and not an extension of) Apprendi. As discussed here and here, that argument might keep federal courts from having lots of sentencing headaches in federal direct appeal cases, but then may produce different and greater headaches for these courts when dealing with state habeas cases.

In another arena, the decision yesterday in US v. Mutchler, 2004 WL 2004080 (S.D. Iowa, Sept. 09, 2004), provides another object lesson in "Be careful what you wish for." At the same time that DOJ has been arguing that Blakely is inapplicable to the federal guidelines, it has also been "Blakely-izing" indictments. (See Ron's post here about amended Blakely-ized indictments in the Enron prosecutions, and note here that the Comey memo urged this double-barrel post-Blakely strategy.)

But, in Mutchler, US District Judge Robert Pratt faced a defense motion to strike allegations of aggravating factors in a Blakely-ized superseding indictment. And Judge Pratt was so moved:

The Court considers the Defendants' arguments persuasive and finds that the aggravating factors within the Superseding Indictment are prejudicial surplusage....

The Government argues the addition of the aggravating factors is proper in the current uncertain post-Blakely v. Washington sentencing environment.... The Government's concerns are understandable.... [But] Defendants argue, since the aggravating factors are not properly offenses against the laws of the United States ..., this Court lacks the subject matter jurisdiction over the matters asserted in the aggravating factors.

The Court agrees that the aggravating factors are not criminal conduct defined by Congress and, as such, have no place within the charging documents against the Defendants.... As a part of guidelines meant to act as procedural rules for the court, the aggravating factors do not provide sufficient authority to bring the allegations contained within them properly before a trier of fact in a United States courtroom.

The Government's concerns about the Defendants' possible windfall in the form of a reduced sentence are genuinely placed. However, the scenario in which the Guidelines are found unconstitutional as applied to the present case is still, technically, suppositional. What is not suppositional is that the presence of the aggravating factors within the charging documents as they now exist is unconstitutional.

There is a lot more rich analysis in Judge Pratt's opinion, and the decision reinforces for me that the warning "Be careful what you wish for" might suitably be given to both prosecutors and defense counsel these days.

September 10, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Different view of deep structural arguments

As discussed here, Judge J. Harvie Wilkinson's concurrence in the Fourth Circuit's Hammoud ruling provides a fascinating "separation of powers" argument for why Blakely does not apply to the federal guidelines.

Professor and FSR editor Aaron Rappaport has just completed a draft of an article — entitled "What the Supreme Court Should Do: Save Sentencing Reform, Gut the Guideliens" — which provides another and quite different perspective on these deep structural issues and their impact on the applicability of Blakely in the federal system. This article (which can be downloaded below) will be forthcoming in the next issue of the Federal Sentencing Reporter (FSR's second rapid-fire issue covering Blakely). Here's a taste:

I argue ... that a principled rationale for the Supreme Court's Apprendi and Blakely decisions can be identified, a rationale that provides a basis for distinguishing the two kinds of sentencing regimes, at least in some circumstances. At the same time, this analysis does not imply that the federal sentencing system necessarily withstands constitutional scrutiny. Rather, the more nuanced understanding of Blakely and Apprendi generates a specific test for evaluating whether administrative schemes survive review. It is a test the federal sentencing guidelines may not pass, at least absent significant restructuring.

This analysis provides a preliminary attempt to ground the Apprendi and Blakely decisions on deeper constitutional values. It does not aspire to be comprehensive and, in the press of time, the discussion passes over some important issues quickly. Nonetheless, my hope is that this effort will encourage further debate about the logic of the Court’s decisions.

Download rappaport_should_do.pdf

September 10, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

More big Blakely news from Colorado

As noted here, the Colorado Supreme Court earlier this week announced its intention to examine whether Colorado's sentencing scheme can survive Blakely. As that court gears up for this issue, a Colorado intermediate appellate court in People v. Solis-Martinez, 2004 WL 2002525 (Colo. App. Sept. 09, 2004), has now officially identified Blakely problems in the operation of Colorado's sentencing provisions.

The court in Solis-Martinez, after providing a brief account of Colorado's sentencing statutes, explains how the case facts raise a Blakely problem and how waiver claims cannot remedy that problem:

Here, in imposing the sixteen-year sentence [following the defendant's guilty plea to criminally negligent child abuse], the trial court relied on its findings that the child was in extreme pain for a long time, that defendant waited so long to take the child to the doctor, that she punished the child because of her circumstances, and that she had continually lied about the events leading to the child's injuries. The court further recorded its findings supporting the aggravated range sentence in a written supplement to its sentencing order that reflected in more detail the information that appeared in the presentence investigation report. However, under Apprendi and Blakely, a sentence beyond the relevant statutory maximum may be imposed only if a jury has determined the aggravating factors or the defendant has admitted them.

In so concluding, we disagree with the People's contention that defendant waived the right to a jury determination of the aggravating factors by pleading guilty to the charged offense. No aggravating factors were charged in the information, and defendant did not stipulate to any. She was not advised that she had a right to have a jury determine any aggravating factors. Therefore, her guilty plea cannot be interpreted as a waiver of her right to have a jury determine factors exposing her to greater punishment than otherwise authorized by the sentencing statute.

September 10, 2004 in Blakely Commentary and News, Blakely in the States | Permalink | Comments (1) | TrackBack

Non-Blakely news from the First Circuit

The First Circuit still has not yet officially weighed in on Blakely's applicability to the federal guidelines. But, somewhat disconcertingly, the First Circuit in unpublished rulings (noted here and here) seemed to be trying hard to limit the opportunity for certain defendants to raise Blakely claims.

Yet news from the First Circuit in a non-Blakely case has restored my faith in that court's balanced concern for the rights of federal defendants. The court in Goldings v. Winn, No. 03-2633 (1st Cir. Sept. 3, 2004), strongly rejected the government's statutory arguments for a new policy limiting federal inmates' eligibility for placement in a community corrections center. Though legally intricate, Goldings is, according to folks involved directly in federal sentencing proceedings, a very potent and important ruling as the first appellate decision concerning, in the words of the court, a "change in policy [that] has generated a flood of lawsuits in the federal district courts." TalkLeft has some additional helpful explanation of the case here.

September 10, 2004 in Criminal Sentences Alternatives, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

September 9, 2004

Gaining perspective

I am back in the Buckeye state and so very grateful to Congresswoman Maxine Waters and her wonderful staff for allowing me the opportunity to participate in today's panel discussion on federal sentencing at the Congressional Black Caucus Foundation's 34th Annual Legislative Conference in Washington DC (background here).

As I anticipated, I learned a tremendous amount from my fellow panelists and also from the audience on a range of critical issues. Much of the discussion focused on federal mandatory minimum sentencing — and included the exciting news that Congresswoman Waters will soon introduce a bill proposing to eliminate certain mandatory penalties in some non-violent drug cases. But the discussion also canvassed other federal and state sentencing issues. For example, I was disconcerted to hear about New Jersey's severe racial disparities in its prison population from New Jersey's Attorney General Peter C. Harvey, but I was encouraged to hear that New Jersey has a new commission now reviewing the state's sentencing policies and practices. (Background on New Jersey state sentencing realities can be found here, and details about the new New Jersey commission and its challenges are here and here.)

Though I could go on at length about the particular insights shared by other panelists — so many important points were made by The Honorable Ruben Castillo, The Honorable Terry Hatter, Julie Stewart, and Nkechi Taifa — the collective insight I took away from the event concerned how different the sentencing world and the possibility for meaningful reform looks depending upon one's experiences and perspective.

Sadly, I got the feeling that perhpas naive optimism fuels my own belief that Blakely has created an historic moment for historic rethinking of modern sentencing policies and practices. Both the substance and tone of many comments from those working in DC left me with an impression that meaningful sentencing reform seems much more possible when considered from the ivory tower than from inside the Beltway.

September 9, 2004 in Blakely Commentary and News, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

More on Hammoud and other Blakely news

With the help of a business center at the DC Convention Center, I am pleased to be able to get a "blogging fix" before heading to this exciting event. (As if it was not already obvious, I am clearly addicted to this medium, though I blame Blakely (or perhaps just Justice Scalia) for turning me into such a junkie.)

I had a chance to re-read the Fourth Circuit's decision in Hammoud in transit today, and another review of all the brilliant features of the all the judges' fascinating opinions has my mind racing with so many additional thoughts --- e.g., (1) all of the Blakely bickering perhaps is (or at least should be) really a debate over the requirements of the Due Process Clause at sentencing; (2) it seems defendant Hammoud received an extra 150 years' imprisonment based on the testimony of a single questionable witness who was, according to Judge Gregory, "described throughout the trial as untrustworthy, manipulative, a liar and an exaggerator"; (3) it is really fun to watch smart and sassy judges trade smart and sassy rhetoric in footnotes (compare Wilkinson concurring at fn. * with Motz dissenting at fn. 4). Perhaps I will get a chance (much) later tonight upon my return home to add more words on these and related topics.

In the meantime, Howard Bashman of How Appealing here has some of the daily Blakely news stories, and Jason Hernandez of the Blakely Blog here returns to his helpful daily round-up of Blakely developments. In addition, Jason has here a trenchant analysis of the SCOTUS amici brief filed by three Senators in Booker and Fanfan, which I discussed at length here.

September 9, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Must stop, big day ahead...

Despite having already done three lengthy posts on the Fourth Circuit's Hammoud decision (available here and here and here) there is still a lot more to say — I have not yet even mentioned the "alternative sentencing" part of the majority's decision (which triggered a partial dissent by Judge Widener) or the thoughtful dissents.

But I must call it quits for the night because I have a big day tomorrow. As noted in the flyer here, I was lucky enough to be invited by Congresswoman Maxine Waters to participate on a panel at the Congressional Black Caucus Foundation's 34th Annual Legislative Conference in Washington DC.
The planned Judiciary Issue Forum is intended to cover an array of sentencing reform issues from mandatory minimums to Blakely. I expect to learn a lot from my fellow panelists, who include The Honorable Ruben Castillo (US Sentencing Commission), The Honorable Terry Hatter (US District Judge of the Central District of California), The Honorable Peter C. Harvey (New Jersey's Attorney General), Julie Stewart (President and Founder, Families Against Mandatory Minimums), and Nkechi Taifa, Esq. (Senior Policy Analyst, Open Society Institute). But if I am going to be able to contribute intelligently at all, I better get some sleep.

I doubt I will get to blog much, if at all, from the road tomorrow, but I should be back with more on Hammoud and other developments before long.

September 9, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

The power of separation of powers?

Judge J. Harvie Wilkinson's concurrence in the Fourth Circuit's Hammoud ruling provides a fascinating "separation of powers" arguments for why Blakely does not apply to the federal guidelines. Though I will need to re-read Judge Wilkinson's rich opinion to appreciate all it is saying, I think I have the basic logic: (1) the judiciary made the federal guidelines, (2) reading Blakely to require proof of guideline factors to a jury beyond a reasonable doubt converts these factors into de facto elements of new crimes, (3) but only the legislature can properly create and define crimes.

This is interesting logic, though it raises almost as many questions as the majority opinion in Hammoud (discussed here). First, though the US Sentencing Commission is nominally in the judicial branch, I have highlighted before that the USSC both in design and in operation is far more like, in Justice Scalia's words, a "junior-varsity Congress" than just a group of judges making sentencing standards for themselves. Second, given that the courts have consistently and widely held that the Ex Post Facto Clause applies to changes in the guidelines (see SG Brief at 25), haven't the courts already concluded that the guidelines do create de facto elements of new crimes?

Finally, I think there is a "through the looking glass" quality to this separation of powers argument, especially given the Framers' apparent interests in democratic checks and balances and in safeguarding individual rights through the Bill of Rights. The implication of Judge Wilkinson's argument, as I understand it, is that if and when Congress creates binding sentencing laws though traditional legislative means (securing approval by both houses and signature by the President), then defendants have the benefits of full constitutional procedural rights during the enforcement of those laws. But if and when a legislature finds a way to writing binding sentencing laws through a non-legislative means (e.g., creating an agency whose rules will be legally binding despite never being traditionally enacted), then defendants have fewer procedural rights in the enforcement of those laws. Whatever one thinks of structural constitutional arguments, I doubt the Framers (or Justice Scalia) ultimately imagined that defendants would get less procedural rights in the application of those laws that are created in less democratically accountable ways.

September 9, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

"Statutory" analysis in Hammoud

Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here) puts great emphasis on the use of the phrase "statutory maximum" in Blakely and Apprendi, and he thus finds Blakely inapplicable to the federal guidelines because they are not statutes. In Wilkins words, "Blakely applies to the guidelines only if the Blakely Court redefined the term 'statutory maximum' to include any fact that increases a defendant's potential sentence." But, says Wilkins, "[o]n close examiniation of Blakely, we conclude that the Supreme Court simply applied — and did not modify — the rule articulated in Apprendi."

Though I suppose this is a plausible reading of the Blakely decision, on close examination it raises a lot of questions. First, of course, if the Fourth Circuit is reading Blakely properly, one must wonder why Justices O'Connor and Breyer made so much of a fuss in their Blakely dissents. Obviously, given the energy they spend lamenting the apparent demise of the federal guidelines, Justices O'Connor and Breyer obviously thought Blakely was modifying the rule in Apprendi.

Second, a close reading of Justice Scalia's opinion in Blakely reveals that after the key passage (at slip op. 7) where Justice Scalia (re)defines "statutory maximum," he does not once use that apparently critical phrase again in the final 10 pages of his opinion for the Court. Instead, Justice Scalia speaks of "what state law authorized" (slip op. 8), and not "what a state statute authorized"; he speaks of the "jury's traditional function of finding the facts essential to lawful imposition of the penalty" (slip op. 13), not of the jury's role "finding the facts essential to statutory imposition of the penalty;" he speaks of a defendant's "legal right to a lesser sentence" (slip op. 13), not of a "statutory right to a lesser sentence;" he speaks of "all facts legally essential to the punishment" (slip op. 17), not of "all facts statutorily essential to the punishment." In other words, if Justice Scalia and the others in the Blakely majority were trying not to modify the meaning of Apprendi, the Court's opinion should have been crafted much more carefully.

Finally, as suggested here and here, the Fourth Circuit's conclusion that Blakely "simply applied" Apprendi may have some significant retroactivity consequences. The opinion in many ways intimates that the holding in Blakely was dictated by Apprendi (see p. 66: "in Blakely the Court simply applied the rule of Apprendi to a new set of facts "). But as these recent North Carolina rulings document, at least one Fourth Circuit state has a statutory sentencing guideline system just like the one declared unconstitutional in Blakely. After Hammoud, do all North Carolina prisoners who received enhancements and had not-yet final convictions in June 2000 (when Apprendi was decided) now have strong claims for Blakely relief in the federal courts (even if the state courts won't grant such relief)?

September 9, 2004 in Applicability of Blakely to FSG, Blakely in Appellate Courts, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

So much to say, so much to say...

In addition to ensuring fans of the Dave Matthews Band will now visit this blog, the title of this post accurately describes both the Fourth Circuit's opinions in Hammoud — all 145 pages — and my own feelings about commenting on the Fourth Circuit's work in Hammoud. Let me here do some preliminary commentary, and allow later posts to zero in on various specifics.

First, let me apologize for giving the Fourth Circuit so much grief about taking so long to issue this opinion. I was not aware that there were so many serious and challenging non-Blakely issues that the court had to confront in Hammoud. (The Blakely discussion does not even start until page 48!) I am still a bit troubled by the court's decisions to rush out an opaque Blakely order and take over a month to provide more guidance, but the complicated legal circumstances in Hammoud make this procedure a bit more understandable.

Second, let me note that the author of the main opinion in Hammoud, Chief Judge William W. Wilkins was the original chair of the original US Sentencing Commission that drafted the original guidelines. Also, as we saw in the Koch en banc ruling from the Sixth Circuit, the Hammoud decision is the near judicial equivalent of a "party-line vote." If my calculations are correct, all three judges joining the Hammoud dissent were appointed by a Democratic President (assuming Judge Gregory is counted as a Clinton appointee), while seven of nine judges finding Blakely inapplicable to the federal guidelines were appointed by Republican Presidents.

Third, let me highlight that, no matter what one thinks about Blakely and its applicability to the federal guidelines, the basic facts of Hammoud's sentencing have to give one pause. As Judge Motz rightly stresses at the start of her dissent, Hammoud's sentence without reliance on facts found by the judge by a preponderance would have been 57 months. But judicial fact-finding required under the federal guidelines led the district judge to increase Hammoud's sentence of less than 5 years to a sentence of 155 years!

September 9, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Appellate Courts | Permalink | Comments (0) | TrackBack

September 8, 2004

The 4th Circuit Speaks!!

Perhaps proving the old saying "be careful what you wish for," my long-standing wish to see what the Fourth Circuit has to say to explain its order in Hammoud has been granted with this 145 pages opinion! No wonder it took a while to write (it will likely take a while just to download it). Here is the complicated line up:

Chief Judge Wilkins wrote the opinion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King, Shedd, and Duncan joined and in which Judge Widener joined as to all except Part VII.C.

Judge Wilkinson wrote a concurring opinion. Judge Shedd wrote a concurring opinion. Judge Widener wrote a concurring and dissenting opinion. Judge Motz wrote a dissenting opinion, in which Judges Michael and Gregory joined. Judge Gregory wrote a dissenting opinion.

Analysis to follow late tonight.
Download Hammoud.pdf

September 8, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Major Blakely ruling in Oregon

I previously noted here a newspaper article in which a state defense lawyer called Blakely's implications for Oregon state sentencing "absolutely enormous." Showing yet again how insightful defense lawyers can be, today in State v. Sawatzky, No. 0003-32189 (Or. Ct. App. Sept. 8, 2004), an Oregon Court of Appeals concluded that under its state sentencing laws "upward departure sentences violate the Sixth Amendment to the United States Constitution under the rationale set forth in Blakely."

Sawatzky is a great read in part because it provides a fine summary of Oregon's sentencing guidelines scheme and in part because it articulates the holding in Blakely in this interesting way:

Blakely makes it clear ... that Sixth Amendment analysis under Apprendi is not dependent on legislative intent. That is, the Court did not view as relevant that the Washington legislature, in enacting the sentencing guidelines, intended that courts rather than juries would act as finders of facts that justify "exceptional sentences," even though the Washington guidelines, like the Oregon guidelines, leave no doubt that that was the legislative intent. The Court, in fact, rejected the notion that legislative labeling of "elements" to be found by a jury and "sentencing factors" to be found by a judge could provide the necessary distinction required by the Sixth Amendment....

The Court has made clear in Blakely that a "statutory maximum" sentence for purposes of the Sixth Amendment is not something that, by mere legislative directive, can encompass a sentence enhancement that is based solely on judicial factfinding.

September 8, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Pragmatism and Blakely's retroactivity

An important sub-plot of the Booker and Fanfan cases is whether and how the Supreme Court's clarification of the meaning and reach of Blakely could impact claims about Blakely's retroactivity. As suggested here, I think the nature and structure of the government's argument to exempt the federal guidelines from the Blakely rule could support claims that Blakely was not a "new rule" and thus must apply to all state convictions not yet final when Apprendi was decided in June 2000.

Of course, Blakely's retroactivity is not formally in front of the High Court in Booker and Fanfan, and none of the briefs are likely to address directly the complicated legal issues surrounding retroactivity. Nevertheless, as suggested by my posts on retroactivity here and here, pragmatically speaking the impact of Blakely on past state sentences is probably more consequential than Blakely's impact on current federal sentences (especially because, as federal district judges know well, constitutional challenges to state criminal judgments always find their way to federal courts through habeas actions).

Contributing to these pragmatic realities is the recent observation made by Senior US District Judge Milton Shadur in US v. Rodriguez, 2004 U.S. Dist. LEXIS 17661 (N.D. Ill. Sept. 1, 2004), that " it is obvious that the prison grapevine has been operating overtime to suggest to long-ago-sentenced prisoners [that they] can somehow draw comfort from the Supreme Court's decision in Blakely." The Rodriguez case highlights that what the Supreme Court says in Booker and Fanfan, whether or not it impacts the legal realities of retroactivity claims, will indisputably impact some perceptions of retroactivity claims.

I raise all the points simply because, whatever one thinks of the principles and doctrines of retroactivity, it is fascinating to contemplate whether and how these pragmatic considerations should influence the thinking of the Justices in Booker and Fanfan. These issues also reinforce my view discussed here that institutions other than courts ought to be getting to work on these important retroactivity questions.

September 8, 2004 in Blakely Commentary and News, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Blakely back in the headlines

After an interesting hiatus in media coverage, the reporters are back on the Blakely story. And today we get interesting views on divergent efforts to handle federal sentencings until greater guidance on the guidelines' constitutionality comes from the Supreme Court.

Specifically, this article from Indiana provides more background on ND Indiana Chief Judge Robert Miller's decision to deny the local US Attorney's motion seeking to delay all sentencings. And this editorial from the Munster Times praises Judge Miller's decision saying "justice should not be delayed."

But then this article reports on Mississippi US District Judge David Bramlette's decision to continue all of his federal sentencing cases "until the Supreme Court has given some guidance on Blakely." And this article, while suggesting that New Jersey US District Judge Anne E. Thompson may delay the sentencing of a former financial advisor Alexis Arlett, canvasses different perspectives on this period of Blakely uncertainty and notes that "for Arlett's victims, any more delay is likely to be met with skepticism."

Meanwhile, this article discusses more broadly the post-Blakely challenges for federal prosecutors in Pennsylvania, and this article details how state prosecutors in Washington are struggling with the Blakely aftermath. And this article notes how Blakely might have an impact on the upcoming federal sentencing of Frank Quattrone, the investment banker convicted of obstructing a government probe.

In addition, new commentary on Blakely, Booker and Fanfan can be found on Findlaw, which has thoughtful pieces by Professor Vikram Amar and commentator Ed Lazarus. And though Benjamin Wittes' article on Blakely for the October 2004 issue of The Atlantic Monthly requires a subscription to retrieve on-line, here you can see a snippet of the article and a contributor's quote that Blakely is "the single most irresponsible decision in the modern history of the Supreme Court."

September 8, 2004 in Applicability of Blakely to FSG | Permalink | Comments (0) | TrackBack

September 7, 2004

Re-start your sentencings in Indiana

Though this news is now a bit dated, with all the recent SCOTUS briefing activity I just noticed this weekend that Chief Judge Robert Miller of the US District Court of Northern Indiana denied the request by local US Attorney Joseph Van Bokkelen for a district-wide stay of all sentencings until the US Supreme Court decides Booker and Fanfan.

The details of the interesting stay motion filed last month can be found here, and Marcia Oddi at the The Indiana Law Blog has the highlights of the motion's denial here. In addition, this newspaper article discusses the denial of the motion, while this article reports on a Blakely-impacted sentencing in the Northern District of Indiana right after the motion was denied.

September 7, 2004 in Blakely in Sentencing Courts | Permalink | Comments (1) | TrackBack

Mile High Blakely

Though I have note yet seen a lower court opinion from Colorado grappling with Blakely's meaning for that state, this Denver Post article long ago blared in its headline that the Blakely "Ruling Could Nullify Sentences in Colorado." And now a thoughtful reader reports that the Colorado Supreme Court today announced its intention to examine whether Colorado's sentencing scheme can survive Blakely in the case of Lopez v. Colorado, No. 04SC150. According to the e-mail I received:

This case on which it granted certiorari deals with the mandatory aggravating factors of the defendant's being on parole, in prison, or an escapee from prison at the time of the crime. (In Colorado, the law sets a "presumptive sentencing range." The trial court may sentence the defendant to twice the maximum of this range if the court finds mandatory aggravating facts listed in the statute, or the court, in its discretion, finds other "extraordinary aggravating circumstances" that are not listed in the statute.)

While I ponder whether it is funny to describe the Colorado Supreme Court as the (Mile) High Court, you can read below the text of the court's order:
Whether Blakely v. Washington, 541 U.S. __, 124 S. Ct. 2531 (June 24, 2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000) prohibit the aggravation of petitioner's sentence because the statutory enhancement factors, defined in section 18-1-105(9)(a)(II) and section 18-1-105(9)(a)(V), were never charged in an information nor pled to by petitioner.

September 7, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Judging through the Blakely/blogsphere lens

A fascinating (side) story in the whole Blakely saga has been the amazing lens it creates for questions of judicial roles and responsibilities. I have not had much time to blog about these matters, though I have discussed briefly here the interesting and questionable use of "unpublished" opinion to address consequential Blakely issues.

Helpfully, some fellow bloggers are zeroing in on some of these interesting judging subjects. For example, Chris Geidner at Law Dork has this great post which, in a sense, defends the Sixth Circuit's Koch opinion on "judging" grounds. The whole post deserves attention, but I especially liked this pithy summary of Koch: "The Sixth Circuit ruling means: Let the Supreme Court be the tailor."

Similarly, Ken Lammers over at CrimLaw has this interesting post linking what he calls anti-Blakely positions to anti-Exclusionary Rule arguments. With rhetorical force, Ken contends: "The purpose of both [arguments] is to give theoretical cover to acts which in practice violate the constitution. It's asking the court to accept Plessy style reasoning in a Brown world."

September 7, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack