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October 9, 2004

Waiver: a Blakely "briar patch"

Some of today's panels at the Stanford Roundtable conference on Blakely (recently discussed here) will be covering plea bargaining and other post-Blakely litigation realities, and I am especially eager to hear discussion about waiver. Recall that, as detailed here, the Federal Public Defender in the Northern District of Texas was moved to file an amicus brief Booker and Fanfan simply to spotlight some of the issues surrounding the possibility and legalities of Blakely waivers.

Additional proof of the importance of these issues come from this interesting law.com article discussing disputes over the wording and usage of Blakely waivers in the California state courts. Here's a few snippits from a fascinating article:

San Francisco prosecutors have recently started using so-called Blakely waivers in felony plea bargains.... But across the board, deputy public defenders are refusing to sign. If necessary, they'll offer clients an alternative written by their office, said Public Defender Jeff Adachi....

[P]rosecutors across the state have started demanding Blakely waivers. Under San Francisco's, a defendant would agree to have a judge determine any aggravating fact under existing California statutes and court rules.

Though Blakely waivers may not have much of an impact in plea bargains where a defendant agrees to a prison term, probation deals present more of a battleground. If the client agrees to a Blakely waiver in such cases, Adachi said, "we're setting them up to receive the aggravated sentence when they violate probation."

Adachi said that with his form, the DA would have to let defendants know up front which aggravating factors they face if they violate probation. The DA's "form goes so far beyond what a Blakely waiver requires," Adachi said. Adachi's version specifies a judge would have to determine aggravating factors beyond a reasonable doubt -- not by a preponderance of the evidence.


The burden of proof issue flagged in the article is especially interesting since there is some real question whether a defendant can in fact "waive down" the burden of proof. (See generally the discussion of these issues here and here.)

Finally, it is worth noting that Judge Posner at the end of his opinion in LaGiglio discussing bail issues (detailed here) explained that the district judge might need to consider the government's claim that the defendant "waived or forfeited reliance" on Blakely/Booker issues or could perhaps avoid having "to enter that briar patch." Though such avoidance might be possible in LaGiglio, many courts indisputably will soon have no choice but to go deep into the waiver briar patch (or should it be "Breyer patch").

October 9, 2004 in Blakely Commentary and News, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

More fun(fun) from judge who decided Fanfan

Proving that certain judges have all the fun, US District Court Judge Brock Hornby — who is already famous for being the judge who sentenced Fanfan — earlier this week addressed in US v. Perez, 2004 U.S. Dist. LEXIS 20133 (Oct. 5, 2004), a request of a defendant in a drug case "who wants to plead guilty to the charge of conspiracy, but wants a jury trial on the drug quantities and on the scope of the conspiracy."

The whole opinion in Perez is a great and significnt read. Here are just a few highlights:

As a result of Blakely, the active judges in this District have ruled that a defendant is entitled to a jury trial and proof beyond a reasonable doubt as to all sentence-enhancing factors except criminal history. But there remains widespread disagreement and uncertainty across the country on what Blakely demands for federal sentences....

Since "an indictment must set forth each element of the crime that it charges," Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998), a guilty plea traditionally admitted all the "elements" of the crime. A defendant had to plead guilty to the entire offense or not at all, and a court could not, over the government's objection, accept a plea to a lesser included offense.... The defendant here says that pleading guilty to conspiracy covers the "elements" in this case. I do not believe that "scope" of the conspiracy can be extracted from the elements of the offense as that term has been used conventionally and therefore I would not entertain a partial plea that contested the scope of the conspiracy. Drug quantity is more difficult. Before Apprendi we were certain that drug quantity was merely a sentencing issue, not an essential part of the conviction. Apprendi taught us that where drug quantity elevated the statutory maximum sentence, it had to be proven beyond a reasonable doubt to the jury. But judges could still make all other drug quantity determinations at sentencing. In the post-Blakely world, however, all sentence-enhancing factors (other than criminal history) must be proven to a jury beyond a reasonable doubt. Have they thereby become "elements of the offense"? Since drug quantity now must be proven to a jury beyond a reasonable doubt regardless of what it is called, the old debate over whether it is an "element" seems to have lost significance. It certainly does not help resolve the issue before me. Therefore, I consider other factors.

It will be difficult for the government to try the issues of conspiracy scope and drug quantity without simultaneously presenting a good deal of evidence about the conspiracy itself. Permitting a plea of guilty to the conspiracy, but not the scope or quantity, therefore, will produce disputes at the resulting trial over what is material versus what is unduly prejudicial evidence. The appellate cases generally have said that defendants cannot stipulate their way out of the government's right to try a case the way it was charged.... This background counsels in favor of sustaining the government's objection to the partial plea as it affects both scope and drug quantity.

I cannot see any prejudice to the defendant in declining his partial plea. The primary benefit to the defendant in the proposed partial plea is the possibility of obtaining a reduced sentence for acceptance of responsibility under Guideline 3E1.1. That of course will depend on what the jury and I conclude about relevant conduct after trial. But if the defendant elects at trial to admit the conspiracy (as he proposes to do in his partial guilty plea), and contests only the drug quantity and scope of the conspiracy before the jury, he should be able to make the same arguments about acceptance of responsibility to me at sentencing. True, there may be somewhat more work for his lawyer in preparing for a broader trial (practically speaking the dimensions of the trial will probably not vary a lot) but, since the defendant has a court-appointed lawyer, this factor is an expense to the taxpayer, not the defendant.

After all is said and done, a defendant has a right to a jury trial, but he has no absolute right to plead guilty. Santobello v. New York, 404 U.S. 257, 261-62 (1971). "A court may reject a plea in exercise of sound judicial discretion." Id. at 262. I conclude that the defendant cannot enter a partial plea of guilty while reserving the issue of conspiracy scope for a jury trial. The ability to reserve drug quantity is a closer question. But I also conclude in the uncertain state of post-Blakely federal sentencing that the prudent course is to reject the partial plea on that score as well.

October 9, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Blakely: the academic gift that keeps on giving

I cannot resist the urge to end an amazing day at the Stanford Roundtable conference (details here and here) with a few very general reflections about the event and Blakely.

First, Professor Bob Weisberg (along with the Stanford students and staff) deserve great credit for setting the absolute gold standard for an academic event. (And I am not just saying this because I know event planners and participants may be reading.) The event's logistics have been wonderfully planned and executed. And, more importantly, the collection of superstars assembled — including not only so many leading sentencing academics, but also lawyers from all sides of Blakely and judges and members of sentencing commissions — is truly remarkable.

Second, the array of perspectives and insights which can be brought to bear on Blakely continues to astound me. Throughout the afternoon, I heard so many intriguing ideas and predictions — ranging from the "true" concerns of Justice Scalia, to the need for federal criminal code reform, to the possible impact of 9/11 on "regular" criminal justice policy to the expected fate of Harris and Almendarez-Torres — and I am leaving out dozens of other important matters. I am not even going to try to summarize this Blakely bacchanalia; I would need dozens of posts to even begin to do the event justice.

Third, I was very pleased to have an opportunity to articulate to this amazing group my nascent views about conceiving the Blakely rule — and more generally the broad project of sentencing reform — using two deceptively simple distinctions: a distinction between offense factors and offender factors and a distinction between factual determinations and legal determinations at sentencing. Like all simple distinctions, my budding notions of offense/offender and fact/law distinctions at sentencing are fuzzy and need considerable development. However, I continue to believe that such distinctions can significantly advance our understanding of the meaning and perhaps limited reach of the Blakely rule, and that they can also be of great value as we starting charting a new course for the future of sentencing reform.

Finally, as if the day was not entertaining enough, the evening was capped off with the excitement of knowing that we now may be only one game away from setting up another truly epic Yankees-Red Sox playoff battle.

October 9, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

October 8, 2004

Bail and Blakely/Booker

With many thanks to Crime & Federalism's post here, we now have Judge Posner's wisdom, writing for a unanimous three-judge panel, about when in light of Booker a criminal defendant is entitled to release pending appeal. Here, in lots of detail, is what Judge Posner explains in US v. Lagiglio, No. 01 CR 348-7 (7th Cir. Oct. 8, 2004), a case involving a 41 month sentence for a tax offense:

LaGiglio moved us to order her released pending appeal, arguing that Booker caps her sentence at 12 months and she has already been in prison that long. We directed the district judge to revisit his denial of her motion for release in light of the intervening decisions. He ruled that her sentence was unlawful under Booker and ordered her released, precipitating this appeal by the government.

The government points out that LaGiglio is entitled to be released only if she is likely to be resentenced to a term of imprisonment shorter than the length of time that she will have been in prison by the time her appeal is decided. The Bail Reform Act authorizes release pending appeal only if (so far as bears on this case) the appeal "raises a substantial question of law or fact likely to result in . . . a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." 18 U.S.C. § 3143(b)(1)(B)(iv). An imprisoned person is not to be released pending further proceedings if it is a certainty that however those proceedings are resolved, she will have to be returned to prison....

The district judge did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.

Should the judge be minded to release LaGiglio, he will have to consider the government’s argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.

October 8, 2004 in Blakely in Appellate Courts | Permalink | Comments (2) | TrackBack

Interesting morning reading

A few interesting newpaper articles on federal sentencing developments have my attention this morning. This article from the Oregonian reports on Judge Panner's dramatic decision in US v. Detwiler (discussed here with commentary here). The article partially confirms my concern that the distinct separation of powers issue which is the focal point of the legal ruling in Detwiler will be conflated with the Sixth Amendment issue now before the Supreme Court in Booker and Fanfan.

And speaking of Booker and Fanfan, this commentary at Bloomberg News does a nice job integrating a few quotes from this Monday's argument to explain what is before the High Court in these cases. I find notable that this commentary leads with the story of white-collar fraud offender Jamie Olis (whose case was briefly noted here); as I suggested here, I think a particularized concern for punishing white-collar fraud offenders has been driving the Acting Solicitor General's litigation strategy on the question of severability.

And speaking of white-collar fraud offenders, the Acting SG should be happy to see this article which details that at least one white-collar fraud offender won't be getting a "sentencing windfall" because of Blakely. The article describes in interesting detail the sentencing of a former manager of the Greater Springfield Entrepreneurial Fund who pleaded guilty in March to theft, money laundering and other charges. The article notes that the defendant was given the chance to undo his plea in the wake of Blakely, but he chose not to.

And speaking of sentencing windfalls, did Baltimore Ravens football star Jamal Lewis get such a windfall by being able, as this article explains, to make a plea deal to serve only four months' imprisonment on drug charges which could have led to the application of a 10-year mandatory minimum sentence?

October 8, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Forecasting Blakely's future

Though the first panel of this incredible Stanford conference I am attending is looking back at the jurisprudence which led to Blakely, the various other panels are in various interesting ways forecasting the future of Blakley. And yet, the main message I draw from the US Sentencing Commission's memo about Blakely (as well as from the SG's description of the memo) is that forecasting Blakely's future is a perilous endeavor.

Consider, for example, that the USSC memo instructively concludes that the ultimate impact of Blakely on the federal sentencing system is debatable:

[I]nitial estimates of the impact of the Blakely decision on the workload of the federal court community should be viewed with caution. Activities occurring in this period immediately following the decision will likely not represent longer term responses by the field and cause substantial overestimation of the impact. While a large number of cases may, at first blush, appear to be exposed to a Blakely effect, it is likely that far fewer cases will actually be affected because of the availability of 'solutions' (e.g., fully stipulated pleas, fully articulated indictments, waivers of Blakely, etc) in some courts or the likelihood that past practice will repeat itself (i.e., historically high plea rates prior to the advent of the federal sentencing guidelines) in courts where these options are not available.

Of course, the Acing SG states his views more directly on the uncertain impact and import of Blakely's application in the federal system, when he says in his letter to the Supreme Court that "the extent to which ...plea agreements could or would reduce the impact of applying Blakely to the Guidelines is unknown." Thus, based on both documents, it seems we can only be sure that we cannot be sure of Blakely's likely impact on the federal system.

October 8, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

October 7, 2004

The Data Underground

I am now in California, which means a lot of pacific time blogging in the days ahead. And I will, later tonight, have some substantive points to make about the USSC data memo which is now available to the world (and here). But for now I just cannot resist, as a fan of Lou Reed and the Velvet Underground, noting that it was Lou Reedt who analyzed the Blakely data that the USSC kept mostly underground until now.

So, let's all sing along with a true Lou Reed classic:
Take a walk on the Blakely side
Said, Hey babe
Take a walk on the Blakely side
And the Justices go
doo do doo do doo do do doo.....

October 7, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

West coast time

I am on my way to the airport again, heading out to California to participate in the exciting Blakely event organized by Professor Robert Weisberg starting tomorrow at Stanford Law School (discussed here). Professor Wesiberg has described the event, entitled "The Future of American Sentencing: A National Roundtable on Blakely," in this way:

Through a series of presentations and panel discussions , and culminating in a set of working papers, the Roundtable will consider such broad themes as whether the Court has offered a coherent rationale for the relationship between the Sixth Amendment and sentencing; what types of types of judicial, legislative, and administrative remedies will satisfy Blakely; and the more aspirational question whether Blakely might ultimately prove a boon to the widespread national movement for sentencing reform that has evolved in the wake of, and in substantial tension with, the advent of modern guidelines sentencing.

I fly through North Carolina, and a long day of travel will likely mean no more posts today. I hope to have internet connectivity at my hotel and/or during the conference, though my west-coast blogging may be light because of a focus on the conference and related activities.

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

The data plot thickens

As many readers know, I have long been obsessing over just how many federal cases have Blakely factors and how different rulings in Booker and Fanfan could impact the operation of the federal sentencing system. (See generally posts here and here and here and here.) And, as detailed here, I was fascinated by a representation in the Acting Solicitor General's reply brief concerning the number of cases that involve Blakely factors, which was apparently based upon a U.S. Sentencing Commission internal memo that I thought was not publically available.

This data story has taken an interesting turn based on a letter I received this morning (which can be downloaded below) that was apparently filed by the Acting SG with the Supreme Court yesterday. The letter "proposes to lodge material with the Clerk that is relevant to" Booker and Fanfan — namely "a copy of a three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath on the subject 'Estimate of Number of Cases Possibly Impacted by the Blakely Decision,' which the Commission’s General Counsel made available to the Office of the Solicitor General." As the Acting SG's letter explains:

The memorandum’s author, Dr. Lou Reedt, is Director (Acting), Office of Policy Analysis, United States Sentencing Commission. The memorandum's recipient, Tim McGrath, is Staff Director of the United States Sentencing Commission.

The Commission informs us that the memorandum is an internally generated staff document prepared in an effort to project what the impact of Blakely might be, and that it has been made available to anyone who has requested it.


Fascinatingly, this "lodging letter" to the Supreme Court then goes on to make substantive points — as if this letter was a supplemental brief — about the way the Supreme Court ought to interpret the data in the Sentencing Commission's memo:
The government does not agree with all of the assumptions and speculations made in the memorandum, particularly with respect to the extent to which plea agreements may reduce the impact of applying Blakely to the Guidelines through stipulations or waivers. The extent to which such plea agreements could or would reduce the impact of applying Blakely to the Guidelines is unknown. Even under the most conservative assumptions in the memorandum (i.e., that applying Blakely to the Guidelines does not increase the trial rate and that all guilty plea cases validly resolve Blakely issues), however, the data still suggest that 65% of the federal criminal cases that go to trial will pose Blakely issues. Despite the limitations of the document, the underlying data may prove helpful to the Court in assessing the impact of applying Blakely to the Guidelines.

I am very pleased to learn that the SG now wants the Supreme Court to see the US Sentencing Commission's memo, and I am also very pleased to learn that I can receive a copy of the memo upon request. And, if anyone official at the USSC is reading, please consider this post a formal request for the three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath (though I might have thought this prior post entitled "Please, please share your data USSC" should have reasonably been understood as a sufficient request).

Yet, as is always the case, questions abound:

Why didn't the US Sentencing Commission, supposedly an independent judicial branch agency, submit this memo directly to the Supreme Court with its own amicus brief (or, better still, a month earlier when the Supreme Court was considering a set of Blakely-related cert. petitions)?

Why won't the USSC, which is now representing that this memo is a public document, post this memo on its website?

Has the USSC made this information available to all — or any — lower federal court judges who have been considering Blakely cases?

Will the defense team in Booker and Fanfan have an opportunity to file a "reply letter" in order to provide its view of what should be drawn from the USSC's memo?
Download sg_booker_lodging_letter.pdf

UPDATE: Right before I have to leave for the airport, I got a copy of the aforementioned USSC memo from a friend of the blog. Here it is:
Download ussc_estimate_of_impact1_memo_form.doc


October 7, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, Severability of FSG | Permalink | Comments (6) | TrackBack

Remedies and remediation in Detwiler

The fascinating and potent decision by US District Judge Owen M. Panner in US v. Detwiler, CR 03-372-PA (D. Oregon Oct. 5, 2004) (detailed here) — which declares the federal sentencing guidelines unconstitutional after the passage of the Feeney Amendment "because it violates the separation of powers doctrine" — already has at least a few fans. Crime & Federalism here says the decision is "airtight" and "should go down as a separation of powers classic" and in blog comments here describes Detwiler as a "separation of powers masterpiece that should be included in most con law casebooks." Similarly, Robert Sheridan here has a long post on the federal sentencing system that starts by saying Detwiler shows "what a federal judge can do when hitting on all cylinders."

(UPDATE: Laurie P. Cohen, always on top of federal sentencing developments, has an article in today's Wall Street Journal entitled "U.S. Judge Rejects Constitutionality Of Sentence Rules." Among other interesting tid-bits, the article details that defendant Richard Detwiler is 60-year-old offender who "pleaded guilty to one count of interstate travel to have sex with a minor [and] faces as many as 30 years in prison.")

Though Detwiler could become a very important decision (especially if the Ninth Circuit or other courts follow its lead), I am still pondering some of its conclusions and possible reverberations. Especially with respect to remedies, I think the Detwiler decision raises many more questions than it answers. I am also left wondering how Congress could, if it wished, fix the constitutional problem identified by Judge Panner.

As I understand the Detwiler ruling, Judge Panner concluded that the passage of the Feeney Amendment — and particularly its elimination of the requirement that judges serve on the US Sentencing Commission — undermined a key premise of the Supreme Court's 1989 decision in Mistretta finding that the Sentencing Reform Act (SRA) created a constitutional sentencing structure. (Here it is worth clarifying that Mistretta only addressed the broad constitutionality of the institutional structure of the federal sentencing system created by Congress through the SRA. The federal Blakely issue being considered now by the Supreme Court in Booker and Fanfan, as noted here, concerns more narrowly the constitutionality of how the federal guidelines created by the US Sentencing Commission are being applied. In other words, it seems Judge Panner is holding that what was a constitutionally sound federal sentencing structure on April 29, 2003 became constitutionally unsound on April 30, 2003 when President Bush signed the Feeney Amendment into law as part of the PROTECT Act.

Though this initial conclusion can (and should) be widely debate, I am even more intrigued by the remedy Judge Panner decides is appropriate. Notably, the defendant in Detwiler requested that the court "invalidate the Feeney Amendment and pass sentence under the pre-Feeney Guidelines." But Judge Panner sees the matter this way:

The separation of powers issue addressed in this opinion is not a mere challenge to one particular guideline, that can be stricken without disturbing the Guidelines system as a whole. Either the Sentencing Guidelines scheme as it exists today is constitutional, or it is not. There is no middle ground.... [T]he issue presented here is not the constitutionality of "this Act" — which is a smorgasbord of unrelated provisions stuffed into a single bill for political reasons — but the constitutionality of the Guidelines sentencing scheme itself. The challenged provisions go to the heart of what the Sentencing Commission is today, and whether the present federal Guidelines system, as it has been constructed by Congress, passes constitutional muster. I cannot unilaterally alter the structure of the Sentencing Commission to bring it into compliance with the Constitution. Only Congress potentially has that power.

Accordingly, the only appropriate remedy here is to declare the federal Sentencing Guidelines system, in its present form, unconstitutional. I will sentence Defendant to a term within the minimum and maximum terms prescribed by statute, as I would have done prior to enactment of the Guidelines. I will consider the Guidelines when imposing sentence, but they are now just advisory guidelines, not binding mandates.


Though I am certainly no expert on remedies for separation-of-powers constitutional defects, this part of the Detwiler decision seems anything but "airtight." Especially in light of severability principles which call for upholding as much of a congressional act as possible, the remedy adopted by Judge Panner seems much too broad and also stunningly disruptive. I presume his ruling means that he won't apply the guidelines in any case, even in a case not at all impacted by the provisions of the Feeney Amendment or by subsequent Sentencing Commission action. Moreover, it is unclear based on Judge Panner's logic how Congress could even fix the constitutional problems he identifies, save for perhaps directly enacting into statutory law all of the existing guideline provisions through regular legislation. Moreover, his ruling necessarily calls into question every guideline sentence imposed since April 30, 2003 when the Feeney Amendment became law (and that's probably somewhere around 100,000 federal sentences). Wow!

I would be eager to hear from constitutional experts about what are the various possible and sensible remedies for the separation-of-powers constitutional defect that Judge Panner identifies. My uniformed opinion is that the defendant's proposed remedy in Detwiler makes a lot more sense than the remedy adopted by Judge Panner, and I also think there are likely a range of other possibilities as well.

October 7, 2004 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

The exclusive 500 club

As of this week, the Blakely decision has perhaps made its case for the legal Hall of Fame. As all true baseball fans know, the 500 Home Run Club is an exclusive group and every eligible member is in the Baseball Hall of Fame. Blakely has now officially joined the (less discussed) 500 On-Line Lower-Court-Decision Club.

On Lexis this morning, a search of "Blakely & Sentenc!" after June 24, 2004 produces a total of 510 "hits." Though a few of these "hits" do not involve a Blakely legal issue (but rather a defendant with the surname Blakely), I feel confident declaring that Blakely, barely more than 100 days since being decided, has now officially joined the 500 On-Line Lower-Court-Decision Club. (Interestingly, on Westlaw this morning, a search of "Blakely & Sentenc!" after June 24, 2004 produces only 486 hits. I suppose Lexis can claim more pop in its legal bats.)

Of course, there must be thousands, perhaps hundreds of thousands, of court determinations impacted by Blakely that do not appear in a written, on-line decision. Recall that Acting SG Paul Clement started his argument in Booker and Fanfan by noting that there are 1200 criminal sentencings in the federal system each week. That means there should have been, in just the federal criminal justice system, a total of 16,800 sentencings since Blakely was decided 14 weeks ago. My guess — and this is only a guess, because it is so hard to get hard data during these chaotic days — is that most of these sentencings have been delayed or otherwise impacted by Blakely. Throw in all the state cases affected by Blakely (only partially detailed here), not to mention the impact on charging, pleas and appellate practices, and I am feeling even more confident in my claim a few months ago here that "Blakely is the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."

And those of you really interested in numerology may be intrigued to know that this is my 521st post — tying the home run totals of both Ted Williams and Willie McCovey — and there have now been 638 comments to date on the blog.

October 7, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Trying to be David Letterman

Without further ado, I now provide my "Top Ten List of Cool Moments from my DC Day." Though I could probably make a list of about 100 cool moments, here are 10 that still linger in my mind from spending Monday hanging out around the US Supreme Court and hearing the arguments in Booker and Fanfan.

10. Meeting fellow bloggers Tom Goldstein of SCOTUS Blog and Jason Hernandez of the Blakely Blog.

9. Interacting with a number of US Sentencing Commissioners (who were still willing to talk to me despite my frequent criticisms of their work post-Blakely).

8. Discovering that the barbeque wings in the Supreme Court snack bar are quite good.

7. Feeling the palpable excitement in the courtroom when the Justices took the bench (exactly on time).

6. Watching Acting SG Paul Clement raise oral argument to an art form (and also seeing that Blakely uber-genius Deputy SG Michael Dreeben shares my hair line).

5. Hearing Justice O'Connor make a scoffing remark about Judge Martin's Bizarro amicus brief.

4. Receiving a gift of (overpriced) golf balls with justice scales from the Supreme Court gift shop.

3. Having a chance to talk in person with many superstar members of the media throughout the day and being consistently impressed with how well they all understood the issues.

2. Hearing the Justices ask many good, fair, hard questions to all the advocates.

1. Leaving the courtroom with a positive feeling that the High Court would do the right thing.

October 7, 2004 in Blakely in the Supreme Court | Permalink | Comments (2) | TrackBack

October 6, 2004

Close enough for government work

State appellate courts have, perhaps unsurprisingly, endeavored to minimize the impact of Blakely by finding clever ways to affirm previously-imposed sentences even when Blakely issues are implicated. Many of these affirmances are coming from California, though other states are following suit.

For example, in People v. Vaughn, 2004 WL 2223299 (Cal. App. 2 Dist. Oct. 05, 2004), the court affirmed an enhanced sentence by concluding that the judicial findings to support the enhancement were "inherent in the jury's verdict, and required no separate findings by the trial court." Meanwhile, in People v. Washington, 2004 WL 2202033 (Cal. App. 2 Dist. Oct. 01, 2004), the court affirmed an enhanced sentence because "three of the five factors in aggravation found by the trial court are not affected by Blakely and support selection of the upper term [and] there is no reasonable possibility that upon remand the trial court would exercise its discretion other than to again select the upper term." Similarly, in People v. Sylve, 2004 WL 2189339 (Cal. App. 2 Dist. Sept. 30, 2004), the court concluded that even giving "defendant the benefit of the argument as to whether Blakely prohibits several of the factors, this leaves us with two legitimate aggravating factors and no mitigation [and thus the] trial court was justified in imposing the upper term on the burglary count."

And, showing that such affirmances are not only a California phenomenon, in State v. Shaw, 2004 Tenn. Crim. App. LEXIS 826 (Tenn. App. Sept. 28, 2004), the court in a similar way concludes that Blakely problems are of no ultimate consequence:

In sum, we conclude that enhancement factors (2) and (10) were appropriately applied under Blakely, but that the trial court erred in applying enhancement factors (9) and (11). We further conclude that the strong weight to which the trial court assigned the applicable enhancement factors more than justifies the enhanced sentence imposed. Accordingly, we affirm the twenty-four-year sentence.

October 6, 2004 in Blakely in the States | Permalink | Comments (0) | TrackBack

More on having more in indictments

As noted before here, the legitimacy of Blakely-ized indictments depends in large part on whether (and how) Blakely impacts federal guideline sentencing. In a thorough recent decision covering these realities, Magistrate Judge Stephen L. Crocker in US v. Dennis, 2004 U.S. Dist. LEXIS 19919 (W.D. Wisc. Oct. 1, 2004), recommended denying a motion to strike sentencing allegations from a Blakely-ized indictment. Here is some of the key language from the Magistrate's report and recommendation:

The bottom line is that the current law of this circuit requires the government to include sentencing allegations in its indictments even though it doesn't want to, and none of the defendant's counter-arguments are sufficiently persuasive to justify striking the allegations....

Defendants argue that this court should strike the two sentencing allegations for three reasons: 1) The allegations are prejudicial surplusage; 2) The government does not have statutory authority to include sentencing allegations in an indictment; and 3) Presenting sentencing allegations to a jury for proof beyond a reasonable doubt to increase defendants' sentences violates the constitutional principles of separation of powers and the prohibition against the legislative branch delegating its powers to the executive branch. The government demurs, noting that it has no choice but to include sentencing allegations in the indictment under the current law of this circuit. The government is correct.

October 6, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Severability of FSG | Permalink | Comments (0) | TrackBack

State of state Blakely appeals

A very knowledgeable reader reports that the interesting Van Buren decision from Washington state (discussed here) "is likely to have a very short shelf life" because the Washington Supreme Court has "recently granted review in no fewer than 6 Blakely cases — each with a different issue of retroactivity, the extent of the prior conviction exception, the scope of Blakely facts, etc." According to this report, "oral arguments will be held on November 9 and 10."

In addition to providing an interesting example of a state supreme court's proactive approach to settling a host of unsettled Blakely issues, this report leads me to wonder (1) how many state supreme court decisions addressing Blakely we may see before the end of the year, and (2) whether and when the US Supreme Court will get involved if state supreme courts reach different conclusions about fundamental Blakely issues such as the decision's retroactivity, the extent of the prior conviction exception, the scope of Blakely facts, the application of Blakely to judicial fact-finding to support imposition of consecutive sentences, etc.

October 6, 2004 in Blakely in the States | Permalink | Comments (0) | TrackBack

Being Antonin Scalia

Though surely it would not make for as entertaining a movie as Being John Malkovich, these days it is hard to resist the urge to try to get inside Justice Scalia's head to figure out exactly what makes him tick and explains his votes in the Blakely line of cases. Helpfully, those interested in doing just that can perhaps get a bit of the experience through two articles recently sent my way.

Being

First, from Professor Rory K. Little, we have an article which appeared on Monday in the Daily Journal (and appears here with permission) entitled "Supreme Court Decisions on Sentencing Ignore Intentions of Constitution's Framers." Professor Little, who drafted an unsuccessful re-hearing petition for the state of Washington after it's "loss" in Blakely (available here), speculates in this piece that "Justice Scalia has foreseen, well ahead of most observers, the overall negative results for criminal offenders in his post-Blakely world." The piece contains a number of other interesting observations, and can be downloaded here:
Download blakely_daily_journal_article_october_04.rtf

Also trying to get inside Justice Scalia's head is attorney Donald V. Morano, though his piece entitled "Justice Antonin Scalia: His Instauration of the Sixth Amendment in Sentencing" mines the written words of the author of Blakely. Indeed, Morano's piece provides a formal analysis of the words of Justice Scalia going back to Mistretta, and it develops intriguing ideas about not only where Blakely might go, but also about the decision's potential retroactivity. Here's the article:
Download justice_scalias_insaturation.doc

October 6, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

More proof the guidelines limit "windfalls"

I have explained previously here and here that I am more concerned about lowered sentences if the guidelines are made wholly advisory than if they are severable if (when?) Blakely is applied to the federal system. A decision I received today from the Ninth Circuit, US v. Antondo-Santos, No. 04-10095 (9th Cir. Oct. 6, 2004), confirms my view that at least some sentences could be far more lenient after Blakely if the guidelines are made wholly advisory.

In Antondo-Santos (available below), the Ninth Circuit reverses for the third time a significant downward departure for a (first-time) drug offender. Indeed, this time, the Ninth Circuit granted the government's request for a remand to a different sentencing judge:

In light of the history of this case and our previous remands, it is clear that the district court would have substantial difficulty in putting out of its mind its repeated, previously-expressed views that a 66 month sentence is appropriate in this case.

Significantly, since it appears that the district judge in Antondo-Santos strongly (and perhaps accurately) believed that 5+ years for the defendant was "a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment as required by 18 USC 3553(a), I think the Ninth Circuit would have had to affirm the sentence in this case if the guidelines were simply advisory. Food for thought.
Download Antondo-Santos.pdf

October 6, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

West coast offense

My Dad taught me the old saying that "the best defense is a good offense." Though many would debate whether this holds true in football for adherents of the West Coast Offense coaching philosophy, the very important (and very entertaining) decision by Oregon US District Judge Panner in US v. Detwiler (available here) suggests that at least one judge is ready to try out the philosophy in the arena of federal sentencing.

In Detwiler, Judge Panner provides a thorough and thoughtful account of how the Feeney Amendment has changed certain premises that were key for the Supreme Court in upholding the structure of the Sentencing Reform Act in Mistretta v. US, 488 U.S. 361 (1989). Following an introductory section with frequent quotes from Mistretta and the Federalist Papers, Judge Panner first documents the history and passage of the Feeney Amendment in stark and provocative terms:

Nominally sponsored by a freshman Congressman, the Feeney Amendment actually was authored by Attorney General Ashcroft's subordinates at the Department of Justice.... This legislation, of vital importance to the Judicial Branch, was "enacted without any consideration of the views of the Judiciary." Chief Justice William Rehnquist, 2003 Year-End Report on the Federal Judiciary. The public likewise had no opportunity to be heard.

This stealth route clearly was intended to prevent close scrutiny of the Feeney Amendment, or a fair opportunity to oppose the measure. No emergency mandated acting in such a precipitous manner, without consulting a coordinate Branch of government or allowing opportunity for public input or Congressional debate. The legislative record also is replete with remarks by some members of Congress, and the Attorney General's deputies, expressing hostility toward the Judicial Branch and toward judges who fail to decide cases in the manner favored by those individuals....


Judge Panner thereafter documents the impact and consequences of the Feeney Amendment's changes to the structure of the US Sentencing Commission and the operation of federal sentencing law:
The alterations to the Sentencing Commission effected by the Feeney Amendment require re-examination of a fundamental premise of Mistretta, namely, that the Sentencing Commission is part of the Judicial Branch.

I see no principled basis on which to distinguish the Sentencing Commission, post-Feeney, from the myriad of other administrative agencies that populate the Executive Branch.... For separation of powers purposes, if it walks like a duck, and quacks like a duck, then it's a duck, even if Congress chooses to label it a cow. The Plan of the Constitution cannot be circumvented through mere labels.

The practical consequence of the Feeney Amendment is that, regardless of what it may say on the office door, the Sentencing Commission is now a captive of the Executive Branch. Any involvement by the Judicial Branch in the Commission's work is solely by the grace of the Executive Branch.


Consequently, explains Judge Panner, because the "Executive Branch has usurped control over the tasks that Mistretta viewed as historically within the realm of the Judicial Branch," the "only appropriate remedy here is to declare the federal Sentencing Guidelines system, in its present form, unconstitutional."

Detwiler is a powerful and important ruling (not to mention a great read), and it opens up another critical front in the pitched battle between the US Congress and the Federal Judiciary over sentencing law and policy. Moreover, as Howard Bashman astutely notes here, because the Ninth Circuit will surely be called upon to review this decision, "this matter is likely to remain interesting for quite some time to come."

October 6, 2004 in Federal Sentencing Guidelines, Sentences Reconsidered, Severability of FSG, Who Sentences? | Permalink | Comments (6) | TrackBack

Confining Blakely's impact in its home state

As folks in Washington monitor the recent activity of the Mount St. Helens volcano, an intermediate appellate court in Washington has done its best to limit the impact of the Blakely earthquake. In State v. Van Buren, 2004 WL 2222263 (Wash. App. Div. 2 Oct. 05, 2004), the court makes the following rulings about the reach and application of Blakely under Washington sentencing law:

First, Blakely applies to all cases in which review was not final on June 24, 2004. Second, under Blakely, a jury must find disputed facts beyond a reasonable doubt before the sentencing court may rely on these facts to impose an exceptional sentence above the standard range. Third, Blakely does not require a jury determination of a defendant's criminal history. Fourth, the calculation of a defendant's offender score is not a question of fact but a legal calculation made by the sentencing judge after consideration and resolution of legal issues and rulings on statutes and laws that apply to the defendant's criminal history. Thus, a defendant's offender score is not a question of fact that must be proved to a jury beyond a reasonable doubt. Fifth, whether there are substantial and compelling reasons to impose an exceptional sentence is a "proportionality" type judgment for the sentencing court. Sixth, whether a defendant with an offender score greater than nine receives "free crimes" if sentenced within the standard range is part of the calculation of a defendant's offender score and is not a question of fact for the jury.

The thorough and thoughtful opinion in Van Buren thus serves to limit the impact of Blakely in various important ways: it calls Blakely a new rule and consequently only applicable to cases still on direct review, and it relies upon the "prior convictions" exception and a robust fact/law distinction to restrict the number and type of findings that must be made by a jury under Washington law.

Though some of the conclusions reached in Van Buren about Blakely's reach might be disputed, the court's decision is well-reasoned and paints a picture of how Blakely can be reasonably integrated into at least some existing guideline systems without creating too much "carnage and wreckage."

October 6, 2004 in Blakely in the States | Permalink | Comments (0) | TrackBack

October 5, 2004

Big doings from the District of Oregon

I had been thinking that there had not been any big rulings from the federal district courts lately, and then today United States v. Detwiler, CR 03-372-PA (D. Or. Oct. 5, 2004), arrives in my in-box. In Detwiler, Senior US District Judge Owen M. Panner declares the federal sentencing guidelines unconstitutional.

Ho hum, you might say in our post-Blakely world. But Judge Panner's holding is based on Congress's passage of the Feeney Amendment; he concludes that the "practical consequences of the Feeney Amendment is that, regardless of what it may say on the office door, the Sentencing Commission is now a captive of the Executive Branch" and consequently the federal sentencing system is unconstitutional based upon separation of powers principles. Here's the opening of an opinion you can download below:

Pending before the court is Defendant's motion to declare the Feeney Amendment unconstitutional and to impose sentence under the pre-Feeney version of the federal Sentencing Guidelines. That motion is granted in part. I hold that:
1. The federal Sentencing Guidelines system, in its present form, is unconstitutional because it violates the separation of powers doctrine.
2. The defects are not severable.
3. The federal Sentencing Guidelines will be treated as true guidelines, and not mandates, when imposing sentence in this and all future cases, pending further directions from a higher court or the Congress.

More commentary later on what seems to be now another front in the on-going war between the US Congress and the Federal Judiciary over sentencing law and policy.
Download detwiler_opinion_order_final_corrected.pdf

October 5, 2004 in Federal Sentencing Guidelines, Severability of FSG, Who Sentences? | Permalink | Comments (1) | TrackBack