October 2, 2004
Acting SG Clement to argue Booker and Fanfan
As noted in this post by the folks at the SCOTUS Blog, Acting Solicitor General Paul Clement (background here) will be arguing for the United States in Booker and Fanfan. I believe this is a bit of news because Deputy Solicitor General Michael Dreeben is reputed to be the "point person" on these cases, and he argued on behalf of the United States as amici in Blakely.
More pre-argument reading (for me)
As I explained in this post, my wonderful research has been helping me back up my blog efforts by creating Word documents of my posts (with imbedded links and a helpful TOC). Though older posts are available here, and "Blakely in the States" posts can be downloaded here, below I now provide my most recent posts in one document complete through October 1:
This latest document includes all of the discussion of the briefing in Booker and Fanfan (which I plan to review as I head to Washington DC to hear the arguments). Also, remember that I have assembled here a set of my most recent posts of note.
The SG's chaos strategy
I have suggested here and here that the government's proposed remedy, if Blakely applies to the federal guidelines, seems likely to cause far more chaos than a ruling that the federal guidelines are fully severable. A recent district court decision, US v. McBride, 2004 U.S. Dist. LEXIS 19558 (D. Kan. Sept. 28, 2004), confirms some of my views on this important issue.
In McBride, US District Judge Julie A. Robinson, in addition to writing a thoughtful opinion which details the state of Blakely in the federal courts, carefully and effectively explains how the defendant's sentence would be unchanged even if Blakely applies to the federal system.
First, Judge Robinson explains that the defendant's admissions and the prior conviction exception mean that "even if Blakely extends to the federal sentencing guidelines, this Court can apply the career offender guideline without violating the defendant's Sixth Amendment rights." Second, Judge Robinson explains that, though a Blakely-implicated and factually-disputed gun enhancement was arguably applicable, "whether or not the gun enhancement is applied, application of the career offender guideline results in an increase to Level 34" in the determination of the defendant's offense level.
In other words, if Blakely applies to the guidelines and the guidelines are fully severable, McBride gets no "sentencing windfall" and apparently would have no sentencing issues to appeal. But, the government's position is that the guidelines become completely inoperative and wholly advisory in cases with Blakely factors; that would entail in McBride an initial (appealable?) issue as to whether McBride is or is not a "Blakely case." And if qualifying as a "Blakely case," then the guidelines would be completely inoperative and wholly advisory, and defendant McBride could then argue for a sentence lower — perhaps much lower — than the nearly 22 years he received for his drug offense.
Notably, in an effort to cover all her bases, Judge Robinson did close her McBride opinion by stating: "And, if the federal sentencing guidelines were declared facially invalid, in imposing a sentence under the indeterminate regime predating the Sentence Reform Act, this Court would impose the very sentence it imposes now." This statement might readily lead one to conclude that McBride would get the exact same sentence under the government's theory of severability.
However, under the government's severability theory, I believe McBride would now have a lot of appealable issues: (1) McBride might be able to object (and appeal) that, as a matter of due process, he should have had an opportunity to present evidence on a variety of "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing; (2) McBride could object (and appeal) that Judge Robinson never explained why a 22-year sentence for a relatively minor drug offense constituted a "sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act (which, under the government 's theory, becomes the controlling legal standard for the imposition of sentences under 18 USC 3553(a)).
In the end, I believe the SG's lawyers are all much too smart not to see the many flaws and headaches in the government's own severability arguments. I am now of the belief that the government is simply trying to make the post-Blakely world of federal sentencing seem extremely chaotic in the hope that some member of the Blakely majority might become afraid to apply Blakely to the federal system.
Bench memos, mooting and more questions
I hope to spend this weekend watching important baseball games, a Big Ten battle and perhaps some golf, though I may also take the family to see this Nemo wannabe. But I would guess that SCOTUS clerks may be spending this weekend putting the finishing touches on their Booker/Fanfan bench memos and that counsel are conducting moot courts to help prepare for Monday's big argument.
Though I suggested some pre-argument readings here, it would probably be more helpful to clerks and counsel to return to possible questions for oral argument. Here are a few more kicking around my brain:
To the lawyer for the government: Does your argument that Blakely does not apply to the federal guidelines because Blakely was just an application of Apprendi risk making Blakely fully retroactive to June 2000 for all the states?
To the lawyers for the defendants: What should happen in the thousands of cases "in the pipeline" in which defendants entered pleas before Blakely and in plea agreements acknowledged and agreed to judicial application of the guidelines?
Also, let me note the smart (or at least interesting) question suggested here in the comments to a previous post.
Blakely cases continue making headlines
There is plenty of discussion of Blakely in the many Supreme Court preview articles that are a tradition every year around this time. Interesting recent examples of the genre can be found here and here and here, and many more such articles will surely be appearing over the next few days.
But while most of us focus on the Supreme Court and what it might say Blakely means for federal law, state courts must keep processing cases which seem indisputably impacted by Blakely. Local news stories such as this this piece from Alaska concerning a manslaughter conviction of a child-care worker reinforce that Blakely is such a blockbuster in part because it has a potential impact on so many cases in so many jurisdictions. Relatedly, this article discusses the recent report of the Minnesota Sentencing Guidelines Commission on Blakely's impact on cases in Minnesota (previously discussed here and here).
And, finally, from the "do not believe everything you read department," I chuckled when I saw this article discussing "Blakely v. Washington, a Pennsylvania case that could affect sentencing guidelines." You would think seeing Washington in the case name might have helped the fact-checker on this one.
October 1, 2004
Pre-argument reading guide
If you've read all the briefs in Booker and Fanfan (or at least the Blakely Blog's synopses), and you are wondering what else to read to prepare for Monday's arguments, I can make a few classic suggestions.
Of course, you could read the entire line of cases culminating in Blakely, which principally includes Almendarez-Torres v. US, 523 U.S. 224 (1998), Jones v. US, 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), Harris v. US, 536 U.S. 545 (2002), Ring v. Arizona, 536 U.S. 584 (2002). Helpfully, all these cases (as well as some related others) can be found at this helpful page assembled by the First District Appellate Project.
In addition, I would also recommend a read of the cases which have historically sanctioned the application of lax procedures at sentencing, most particularly Williams v. New York, 337 U.S. 241 (1949), McMillan v. Pennsylvania, 477 U.S. 79 (1986), and US v. Watts, 519 U.S. 148 (1997). Then, for an ineresting contrast, consider reading In re Winship, 397 U.S. 358 (1970).
Finally, though this might require a trip to the library, consider reading the text that helped launch modern sentencing reforms, Judge Marvin Frankel's Criminal Sentences: Law Without Order (1972). Judge Frankel highlighted that sentencing disparities in discretionary sentencing systems were a symptom of the greater disease of "lawlessness in sentencing." He said disparity was the inevitable result of a system that lacked guiding standards and thereby forced each judge to rely upon his or her own individual sense of justice when selecting an offender's sentence. Recognizing that "lawlessness" was the fundamental problem in discretionary sentencing systems, Judge Frankel called for "remedies by lawmaking" — i.e., the development of a "code of penal law" which would "prescribe guidelines for the application and assessment" of "the numerous factors affecting the length or severity of sentences."
Critically, Judge Frankel's classic tome included an entire chapter entitled "The Dubious Process." In this chapter, Judge Frankel noted the absence of significant procedural safeguards in discretionary sentencing decision-making, and he suggested that the lack of procedural regularity contributed to "a wild array of sentencing judgments without any semblance of consistency." Frankel expressed particular concern about how information considered at sentencing was assembled and examined. Judge Frankel lamented that courts at sentencing were relying "for grave decisions . . . upon untested hearsay and rumor," and he expressed concerns that "presentence investigation represents a sudden and total departure from [a court’s usual] fact-gathering procedures," because it provides information that is not "exposed to adversary scrutiny, to rechecking at sources, to cross-examination."
Of course, for your reading pleasure, I now have nearly 500 posts here on the blog (most of which are on Blakely topics). And some recent posts of note are assembled here. And I encourage readers to use the comments to suggest other must-reads.
Making book on Booker and Fanfan timing
Last month I discussed here the need for a quick ruling in Booker and Fanfan and speculated about when we can expect the cases to be decided. I am getting more and more questions of late about timing, and I continue to think mid-November is a reasonable prediction. (Notably, the Minnesota Sentencing Guidelines Commission says in its recent report "the consensus among many in the legal field is that a ruling will be forthcoming by the end of this year.")
Anyone else willing to make guesses in the comments about when Booker and Fanfan will be handed down? I will encourage Howard Bashman, who seems obsessed with bobblehead Supreme Court Justice dolls, to send a bobblehead doll to anyone who gets the date right.
As detailed here, the second special Federal Sentencing Reporter issue on Blakely went off to press this week. And hard copies of the first FSR Blakely issue, detailed here, should be arriving in subscribers' mailboxes any day.
So that must mean it is now time to start posting drafts of pieces which will appear in the third special FSR Blakely issue (cover date December 2004). For your weekend reading pleasure, I today provide two such pieces (and more will likely appear in the coming weeks). First, is an article by Professor Jenia Iontcheva Turner of the SMU Dedman School of Law elegantly titled "Implementing Blakely." This article thoughtfully and comprehensively addresses "what procedures would be needed in a system that both implements Blakely and preserves sentencing guidelines." It also provocatively suggests that:
To give content to the notion of the jury a democratic institution, innovative legislatures could consider going beyond Blakely.... Juries could be entrusted not only with the duty of finding the facts, but also with a greater share of the moral and legal decision-making that underlies sentencing.Download implementing_blakely.doc
Writing in a somewhat similar vein, federal sentencing practitioner James E. Felman — who was co-chairman of the Practitioners' Advisory Group to the Sentencing Commission and is now co-chair of the ABA Criminal Justice Section's Corrections and Sentencing Committee and a member of the Constitution Project's blue-ribbon Sentencing Initiative noted here — has produced this article addressing "possible legislative responses" if the "Supreme Court in Booker and Fanfan holds that the guideline maximum is the relevant statutory maximum for Sixth Amendment purposes." (This is a tweaked version of the thoughtful memo he sent to the US Sentencing Commission previously posted here.)
In this piece, Felman argues that a version of "codified guidelines" would, among the reasonably available options, "best accomplishes the policy choices underlying the Sentencing Reform Act:"
I am going to leave discussion of the Presidential debate to other bloggers like TalkLeft here and Instapundit here. But I do want to note that Professor Stephanos Bibas and I have finished a fun week of debating Blakely here as part of the Legal Affairs Debate Club. Stephanos and I agreed more than we disagreed, but I think we were both able to develop some valuable ideas through the debate format. Though I would encourage a review of the whole debate, I want to share here parts of my parting shot:
Legal Affairs asked the question "Can the Court clean up its Blakely mess", but I do not think the Supreme Court should be blamed for "its" mess. As our last few posts highlight, the often misguided efforts of Congress and the U.S. Sentencing Commission are more responsible for the messy state of federal sentencing law that we now have....
I fear we are blaming the messenger when we assail the Supreme Court for making a mess with Blakely. Congress and the Sentencing Commission have created harsh, rigid sentencing laws that many judges rightly complain take the humanity out of the sentencing process. I am not confident that the extension of Blakely to the federal system will bring humanity back to federal sentencing, but I am confident that we should not be troubled by the demolition of a system that is flawed in so many ways. In my view, the Blakely earthquake is to be praised, not cursed, because it may (and should) bring down a federal system which was poorly constructed from the outset. Like you, I fear that Congress's re-building effort might lead to a more grotesque and unjust federal sentencing structure, but I am the eternal optimist when it comes to believing that our leaders will always want to and always try to do better.
So nice to have data
The Minnesota Sentencing Guidelines Commission's report on long-term Blakely recommendations for Minnesota (available here) is a wonderfully rich and insightful document. Though there are many interesting facets of the report, I found most exciting the presence of hard data on the number of Minnesota cases really and clearly impacted by Blakely. As a result, the report confirmed for me the enormous disservice that flows from the US Sentencing Commission's failure to make publically available the data analysis that it has done about Blakely's impact on the federal system (lamented here).
In the Minnesota report, we learn that only roughly 7% of all cases annually in Minnesota involve "aggravated departures" that depend on judicial fact-finding and we also learn that the facts underlying such departures have been contested in only about 1/3 of all departure cases. Put another way, the Minnesota report astutely highlight that significantly lower than the number of cases with Blakely factors in Minnesota is the number of cases with contested Blakely factors. Consequently, the report notes, less that 2.5% of all Minnesota sentencing cases would seem to be directly impacted by Blakely (and, explains the MSGC, even these cases "can be addressed with modifications to [the existing sentencing] procedures").
Without any information coming from the US Sentencing Commission, we can only hazard a guess as to whether the data from the federal system might be in any way comparable. Of course, because judicial fact-finding is essential to upward departures and upward adjustments in the federal system, there is no doubt that a much larger percentage of federal cases involve Blakely factors (although, as noted here, that number has been estimated at the wildly different levels of roughly 20%, 45% and 65%). But again, as the MSGC report highlights, the key issue may not be the total number of cases with Blakely factors, but rather the total number of cases with contested Blakely factors.
As the Solicitor General has stressed, the US Sentencing Commission is supposed to be an independent agency in the Judicial Branch. In service to that role, I sincerely hope the USSC will share the data it does have at least directly with the Supreme Court and with all the parties to the Booker and Fanfan litigation. (I have been wondering lately about the propriety of the USSC, as a Judicial Branch actor, apparently sharing its data ex parte with just one of the litigants in Booker and Fanfan.) Moreover, as the USSC knows, the whole criminal justice world is watching how the federal system is dealing with Blakely; the USSC should be championing the values and importance of transparency and even-handedness in the development and dissemination of sentencing data.
Put simply, the work of Minnesota Sentencing Guidelines Commission has provided an exemplary model of what sentencing commissions can do to help everyone through the Blakely turmoil. I hope other commissions will follow its sterling example, and soon.
Blakely back in the news
With the Booker and Fanfan arguments now only a few days away, the press is back on the Blakely story. Howard Bashman at How Appealing has links here to SCOTUS preview articles that discuss Blakely, as well as an article about the Minnesota Sentencing Guidelines Commission's report (discussed here) and other Blakely commentary. Additional articles of interest previewing the Supreme Court term are here and here.
Appropriately, many SCOTUS preview pieces identify another sentencing case, Roper v. Simmons, in which the High Court will re-examine the constitutionality of the death penalty for offenders who were juveniles when they committed their crimes (discussed here). But most of these preview articles do not realize that another Blakely case is on the horizon: in Shepard v. US, as noted here, the defense bar will be asking the High Court to reconsider the Almendarez-Torres "prior conviction" exception to the Apprendi/Blakely rule.
Minnesota's Long-Term Report
Right on time, the Minnesota Sentencing Guidelines Commission has followed up the short-term recommendations it made to Minnesota Governor Tim Pawlenty in response to Blakely (available here with commentary here and here) with a set of long-term recommendations on Blakely. And the link to the report now seems to be working; the report can be accesed here.
Though I will do substantive commentary on the new Minnesota report in subsequent posts, I want to start by complementing the Minnesota Sentencing Guidelines Commission for its thoughtful and balanced discussion of legal issues and also its obvious effort to present data in a public and accessible manner for lawyers, policy-makers, researchers and other interested observers. Sadly, though the federal sentencing system is in dire need of thoughtful and balanced data-driven analysis, the US Sentencing Commission has not been as effective in publically analyzing Blakely and its impact (as lamented here and here). Once again, the federal system would benefit from following Minnesota's lead.
Helpfully, this latest Minnesota SG Commission report includes at various points a discussion of Blakely that should be of great interest to persons working outside of The North Star State. Particularly insightful are some of these passages from the report's conclusion:
The level of chaos surrounding the Blakely decision is determined in part on the structure of an individual state’s sentencing system. When sentencing enhancements are an integral part of the sentencing structure, such as with the Federal Sentencing Guidelines, the impact is much more significant and difficult to remedy. To add to the confusion of the last three months, the two cases pending before the U.S. Supreme Court, Booker and Fanfan create even more apprehension as to what the outcome of those decisions may have on sentencing policies.
The Commission's analysis of the Blakely decision on sentencing in Minnesota indicates that there is limited impact. The sentencing guidelines remain constitutional, as do aggravated departures. The current procedure for imposing aggravated departures requires some modification to address the constitutional issues raised in Blakely, but the modifications are not extensive or far reaching, especially given the limited number of cases each year that receive aggravated departure sentences. In addition, there are a limited number of sentencing provisions or procedures that need to be modified or amended, but the majority of the modifications focus on language changes, amending forms or modifying trial procedures. The basic structure of the state's sentencing system remains intact and continues to provide for sentences that promote public safety and hold the defendant accountable, while ensuring the constitutional rights of the defendant are protected....
Although the recommendations presented in this report carry no legal force, they do provide a road map for the state with regard to sentencing policies and practices as both the state and federal courts work through the numerous issues surrounding the Blakely decision. If the state approaches the issues raised in the recent decision in a rational and methodical manner, the disruption and impact to the criminal justice system will be held to a tolerable level.
September 30, 2004
Off-line for a while
I am about to head out (and thus be off-line) for the day to attend an OSU alumni event in Cleveland. (I am reminded of one of my favorite lines from my favorite movie, "Hello Cleveland!" Of course, as you all already know, this site goes to 11.)
To read while I am away, I was hoping to have the Minnesota Sentencing Guidelines Commission's Long-Term recommendations on Blakely, which this MSGC website says is now available. But I cannot get the link to work. Oh well, I hope I can post a working link upon my return.
In the meantime, I have been thinking of late about questions I might ask counsel at oral argument were I a Justice. Perhaps readers have also been thinking about such things and while I am away folks can use the comments to suggest questions they would like to hear asked at argument. I'll start:
To the lawyer for the government: How many indictments have been Blakely-ized nationwide since June 24?
To the lawyers for the defendants: Do federal judges have authority to convene sentencing juries in the absence of congressional approval?
Why I am optimistic about sentencing reforms
Today's thoughtful WSJ article (discussed here) highlighting the real risk of a congressional "mandatory minimum backlash" after Blakely provides yet another reason to be pessimistic about the future of federal sentencing. (For one example of such pessimism, see Professor Bibas' final Tuesday entry here in our on-going Blakely debate over at Legal Affairs.)
But every time I check my e-mail, I learn about amazing new organizations and efforts seeking to ensure that our elected representatives in Congress will properly focus upon sound sentencing policy rather than political rhetoric. I noted one such organization earlier this week here, and I was pleased to see that this report from Justice at Stake included a long section explaining why "the politics of crime are changing [due to] seven political factors emerging as part of a backlash against decades of one-size-fits-all crime policy."
More encouraging news arrived today when I was alerted to the work of Watching Justice, a relatively new nonpartisan website that monitors the activities of the Department of Justice to provide an overview of justice-related policy issues. As noted here, earlier this month Watching Justice co-sponsored a major event entitled "Blakely, the Kennedy Commission, and Beyond" with The Constitution Project. More details about that event and an audio link can be found here.
And speaking of the Constitution Project, today I also got sent a copy of this press release indicating that the Constitution Project has finalized the formation of its new Sentencing Initiative, a "guided by a bipartisan blue-ribbon committee of distinguished legal experts, which will examine state and federal sentencing systems and offer recommendations for reform."
According to the press release, "the Initiative's committee will be co-chaired by Edwin Meese III, Attorney General under President Reagan, and Philip Heymann, Deputy Attorney General under President Clinton." I must here proudly note that Phil Heymann was my professor in my first-year Criminal Law class at Harvard Law School, and also note that other members of the truly amazing blue-ribbon committee include my former boss (Judge Jon Newman, US Court of Appeals, 2nd Circuit), a casebook co-author (Ronald Wright, Professor of Law, Wake Forest Law School), and an FSR co-editor (Frank Bowman, Professor of Law, Indiana University-Indianapolis School of Law).
With all of these amazing organization and individuals working so hard on making the sentencing world better, how can anyone possibly be pessimistic?
Interesting Blakely views
This morning I came across two interesting opinion pieces relating to Blakely. First, in this editorial from the Seattle Times concerning an election for an open seat on the Washington Supreme Court, there was this fascinating Blakely-related passage:
[Candidate Jim] Johnson is a strict constructionist, and would be more likely than [rival Mary Kay] Becker to invoke the Constitution to strike down a law. Becker, the former legislator, says, "One of the rules we follow is, you don't reach for the Constitution right off the bat." She stresses that the court's decisions have to be practical, so that people can live with them.
Despite this difference, Johnson and Becker both support the U.S. Supreme Court's Blakely decision. There, the court said that in sentencing a felon, a judge could not add three years for cruelty if the cruelty had not been proven to a jury. "The right of trial by jury is fundamental," Becker said. "Those might sound like 'liberal' sentiments, but they are really also conservative."
Meanwhile, on the other side of the country, according to this story coming from Duke University, esteemed Duke University Law Professor Erwin Chemerinsky says Justice Stephen Breyer should recuse himself from Booker and Fanfan:
"There's no doubt that Stephen Breyer is one of the 'parents' of the federal sentencing guidelines," said Chemerinsky.... "When he was the Chief Counsel to the Senate Judiciary Committee, he played a key role with regard to the Sentencing Reform Act [passed in 1984], which created the Sentencing Commission that created the guidelines. Justice Breyer was also on the first Sentencing Commission that created the guidelines in the very structure at issue in these cases, though by that time he was a First Circuit judge. Should a justice who played such a key role in developing the sentencing guidelines now participate in considering their constitutionality?
"My own opinion is that he should recuse himself," said Chemerinksy, who has two cases currently on the Court's docket, as counsel and co-counsel. "I don't think a member of Congress who participated in sponsoring a bill or drafting legislation should then, on the federal court, rule on the constitutionality of that, and I think Justice Breyer is in the same position."
Many thanks to Professor Paul Caron, of TaxProf Blog fame, for the pointer to the Chemerinksy article.
The WSJ does it again
Establishing itself as the premier newspaper covering the federal sentencing system at this historic moment (see, e.g., articles from last week here and here), the Wall Street Journal has another fantastic article about Blakely and the feared "mandatory minimum backlash" that could come from Congress.
The article (only available to subscribers) by Laurie Cohen and Gary Fields, which is entitled "Mandatory Sentences Loom as Issue" and has the subtitle "Ahead of Supreme Court Session, All 3 Branches of Government Jockey Over Control of System," captures the moment this way:
[The Blakely] ruling has left lawyers, judges and legislators uncertain about the validity of federal sentencing guidelines. It also has prompted speculation that Congress will impose mandatory sentences for a raft of crimes, from minor offenses to major felonies, leaving judges no latitude to allow for individual circumstances.
The article goes on to discuss the new mandatory sentencing bill working its way through Congress (discussed here), the efforts by the Justice Department to praise mandatory minimums through local papers across the nation (discussed here), and the work of Judge Cassell in the Angelos case (discussed here). The article also includes this insightful graphic about how many federal convictions are subject to mandatory minimum sentences and also some of the key provisions of the new mandatories proposed in the House bill (click on the image to see it more clearly).
Sentenced for an uncharged murder
In his opinion for the majority in Blakely, Justice Scalia assails the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge." The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it — or of making an illegal lane change while fleeing the death scene."
Though this passage expressing concern about punishing for an uncharged murder might seem like just Scalia rhetoric, I just noticed a decision a few weeks ago in US v. Vernier, 2004 WL 2110413 (S.D. Fla. Sept. 17, 2004), which documents that defendants in federal court can and do get punished for uncharged murders. Vernier involves a sad case of the kidnapping, robbing and possible murder of victim Ron Mesika after he picked up defendant Jonathan Vernier as a hitchhiker. (The facts of the case remind me of the disturbing hitchhiker episode on HBO's Six Feet Under, which this article explains was nicknamed by producers as "the departure episode"!)
Though the case's facts would seem to have (and should have?) supported a lot of very serious criminal charges, defendant Vernier was allowed to plead guilty to two relatively minor counts for the fraudulent withdrawal of money from the victim's credit card, and for the interstate transportation of stolen goods and money. I can only speculate as to why defendant Vernier was allowed to plead guilty to these lesser charges, though the fact that Ron Mesika's body has never been found perhaps explains the outcome.
As explained by the sentencing court, under the applicable federal guidelines for the offenses to which he pled guilty, "Vernier would normally be sentenced for an offense level of 17 and receive 51 to 63 months imprisonment." But, based on evidence presented at sentencing, the Court "finds the evidence sufficient that Vernier was responsible for Mesika's death and grants the government's motion for upward departure, bringing Vernier's offense level to 32, resulting in an imprisonment range of 210-240 months," the maximum sentence available under the offenses to which Vernier pled guilty. In justifying this departure, the sentencing court cites McMillan, Williams and Harris and also notes a number of other cases in which federal sentencing courts enhanced sentences relying on "circumstantial evidence [which] showed by a preponderance of the evidence" that a defendant was involved in a killing, even though "there were no convictions and no body recovered."
In the concluding section of his thoughtful and obviously heartfelt decision, US District Judge Shelby Highsmith explains the essence of his ruling and drops a footnote with reference to Blakely:
The circumstances surrounding Vernier's charged crimes, specifically the abundance of evidence pointing to the brutal killing of Ran Mesika by Vernier, sufficiently take this case outside the heartland of typical theft cases falling under § 2B1.1. Failure to recover Mesika's body does not preclude this Court's determination that Vernier is responsible for Mesika's death. The evidence clearly shows — based on the presence of Mesika's blood splattered on the windows, door, and roof of the van, Mesika's blood and tissue found on the tire iron, the attempt to use the cleaning agents to hide this evidence afterwards, and the impunity with which Vernier used Mesika's credit card without worrying about the consequences — that Vernier murdered Mesika. Therefore, considering the unique and aggravating circumstances of the heinous crime perpetrated by the Defendant, this Court GRANTS the government's motion for upward departure and hereby sentences the Defendant to 210 months, as specified in this Court's Amended Judgment.[FN1]
FN1. When this Court imposed sentence on May 10, 2004, the United States Supreme Court had yet to issue its decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). Recognizing that this decision may impact this Court's sentence, this Court entered an Order on July 27, 2004 directing the parties to file briefs addressing the issue on how Blakely affected this Court's Judgment. While the parties disagreed on Blakely's impact, both parties agreed (and this Court concurs) that the ultimate arbiter of Blakely's impact on this Court's Judgment is the United States Court of Appeals for the Eleventh Circuit. This Court sincerely hopes that the Eleventh Circuit, after examining the totality of circumstances surrounding Mesika's horrific and untimely death, will uphold this Court's Judgment, which was only entered after much thought and reflection. This Court acknowledges that its upward departure and sentence may appear, at first glance, to be extreme. But this Court is also convinced that they are just.
So much could be said about this sad and disturbing case, and it does provide a chilling example of who might get a sentencing windfall from Blakely and why we might want to rely on an administrative rather than an adversarial system of sentencing justice.
But what troubles me most about this case is why the defendant was allowed to plead guilty to such relatively minor charges when, in Judge Highsmith's words, the "evidence clearly shows ... that Vernier murdered Mesika." If there indeed was "abundance of evidence pointing to the brutal killing of Ran Mesika by Vernier," why isn't Vernier facing sentencing on a murder charge?
The decision to allow Vernier to plead out to lesser charges capped his sentence at 20 years for a crime that, according to this LA Times Article, Attorney General John Ashcroft might have wanted pursued as a federal death penalty case. The case thus reinforces my worry that we should be more concerned with the sentencing windfalls handed out by prosecutors than those that might result from a serious commitment to the Sixth Amendment.
The First Circuit on prior convictions and plain error
The First Circuit yesterday continued its traditional of saying a lot about Blakely — and rejecting Blakely claims — without making a direct ruling on Blakely's applicability to the federal guidelines (previous examples are here and here and here). In US v. Cordoza-Estrada, 2004 WL 2179594(1st Cir. Sept. 29, 2004), the Court rejected a Blakely claim relying on both the prior conviction exception and on "plain error" doctrine:
Blakely did not disturb the distinction between "the fact of a prior conviction" and other facts that "increase the penalty for a crime beyond a prescribed maximum." Blakely, 124 S.Ct. at 2536 (quoting and applying the Apprendi rule stated above). Accordingly, there was no error in the trial judge's consideration of the prior conviction. Even if there were such an error, Appellant has failed to demonstrate that it affected substantial rights of his because there is no dispute that he had a conviction....
Appellant has also launched a broadside attack on the validity of the Sentencing Guidelines under the Sixth Amendment. Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was "plain."...
In determining whether the error was plain, the Supreme Court has explained: "Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be 'plain' at the time of appellate consideration." Johnson v. United States, 520 U.S. 461, 468 (1997). The question of the continuing validity of the Sentencing Guidelines is an issue that has roiled the federal courts, and split circuits. [Citing Booker, Hammoud, and Koch]. Whatever the outcome, the answer is neither plain nor obvious at the time of this appeal.
Because the trial judge's sentence was consistent with precedent, and the current law is unsettled, we conclude that there is no plain error.
September 29, 2004
Still more from California
As I highlighted before here, from California it is one Eureka moment after another on Blakely.
Already this weak there have been two more interesting and important cases from the biggest state (which has this interesting state seal).
In the unpublished People v. Herod, 2004 WL 2163532 (Cal. App. 2 Dist. Sept. 28, 2004), the court finds that Blakely applies to California determinate sentencing law, and then concludes that "facts relied on by the court to impose the upper term, while proper bases for an upper term, were not found true by the jury, nor were they admitted by appellant. Under Blakely, use of these facts to impose the upper term does not comply with the Sixth Amendment, resulting in an invalid sentence." But thereafter the court goes on to explain:
We reach a different conclusion as to the imposition of consecutive rather than concurrent sentences for the robbery counts, which involved separate crimes on separate occasions against separate victims.... The decision to impose a consecutive rather than concurrent sentence involves the cumulation of penalties for multiple crimes. The trial court is not required to make factual findings to support a decision to impose consecutive terms.
In the published People v. Butler, 2004 WL 2153559 (Cal. App. 1st Dist. Sept. 27, 2004), the court makes a finding of no waiver and then says the sentencing court "violated Blakely because four of the aggravating factors that it articulated ... did not relate to a prior conviction and ... were additional findings made by the court rather than by a jury." But then the court concludes that reversal was not required because appellant did not challenge the one prior-conviction-based aggravating factor and thus the same sentence was likely to be imposed. And in so doing, the Butler court also said: "We recognize that, in some cases, extrinsic facts relating to a recidivist aggravating circumstance may implicate Apprendi."
UPDATE: Before the "ink" was even dry on this post, out comes People v. Armstrong, 2004 WL 2180926 (Cal. App. 2 Dist. Sept. 29, 2004), which concludes "Blakely requires reversal of defendants' upper term sentences and resentencing on those counts" and People v. Magdaleno, 2004 WL 2181412 (Cal. App. 2 Dist. Sept. 29, 2004), which holds that "neither Blakely nor Apprendi create the right to a jury trial on the determination as to whether to impose consecutive sentences."
Fascinating (non-Blakely!!) Ohio decision
Today Ohio continued its recent trend (noted here and here) of being a very interesting sentencing state when the Ohio Supreme Court handed down its decision in State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888 (Sept. 29, 2004) (available here). The case involves the sentencing of a defendant who pled guilty to "two counts of nonsupport ...., a fifth-degree felony." And the decision's opening paragraph, written by (Ohio State College of Law alum) Chief Justice Thomas Moyer, gives you the essentials:
Appellant, Sean Talty, challenges the imposition of a condition of community control that ordered him to make "all reasonable efforts to avoid conceiving another child" during his five-year probationary period. Because we hold that the antiprocreation order is overbroad, we vacate that portion of the trial court’s sentencing order.
Significantly, the majority of the Ohio Supreme Court in Talty, while recognizing that an antiprocreation order raises serious constitutional issues, decides the cases on state law/statutory grounds:
[W]e hold that the antiprocreation order is overbroad under Jones, 49 Ohio St.3d at 52, 550 N.E.2d 469, and vacate that portion of the trial court’s sentencing order. Given our disposition, we need not address Talty’s constitutional and remaining nonconstitutional challenges to the antiprocreation condition.
Notably, two of the seven Justices of the Ohio Supreme Court dissented. Justice Paul Pfeifer (also an Ohio State College of Law alum) has this to say:
Talty was ordered to "make all reasonable efforts" to avoid fathering another child. I consider this sanction appropriate, or reasonable, and proportionate, under the egregious circumstances of this case because the sanction relates directly to the crime of which Talty was convicted and is tailored to prevent even more instances of felony nonsupport. Given Talty's propensity to sire children, the antiprocreation condition must also be considered in the nature of punishment.
September 29, 2004 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack