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January 20, 2005

Do federal sentencing judges have discretion to Blakely-ize?

Perhaps throwing an interesting curve into the developing debate over how to interpret and apply Booker, I have been hearing buzz about some federal district judges indicating that, following the holding of the Booker merits majority, they believe they should rely only on facts found by a jury or admitted by the defendant when calculating (now advisory) guideline ranges. 

I am fairly certain that the holding of the Booker remedial majority does not require compliance with Blakely when calculating (now advisory) guideline ranges.  But it is a distinct, and quite interesting, question whether district judges in exercising their post-Booker discretion are permitted to demand that all sentence-enhancing facts be found by a jury or admitted by the defendant.

Arguably, this issue might be thought to dovetail with the debate over how much weight to give to the (now advisory) sentencing guidelines.  A judge inclined, like Judge Cassell in Wilson, to treat the guidelines as nearly mandatory might sensibly decide he or she should only rely on those facts found by a jury or admitted by the defendant; a judge inclined, like Judge Adelman in Ranum, to treat the guidelines as more advisory might sensibly decide he or she can and should more readily rely on facts not found by a jury or admitted by the defendant.

January 20, 2005 at 09:19 AM | Permalink

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Comments

No way. 3553(a) says to look at the guidelines range. That means look to see what the Commission recommends. The Commission reaches its recommendation through judicial fact finding. A judge can disregard that recommendation after considering it, but the judge needs to consider what the Commission wanted.

Posted by: Jim | Jan 20, 2005 10:51:51 AM

Blakely-ized sentencing procedures is what I plan to argue in a sentencing memo that I am working on right now. I plan to argue that a "reasonable" sentence includes consideration of the "enshrined" Sixth Amendment, as well as the guidelines and statutory factors.

Posted by: Cynthia Reed Eddy | Jan 20, 2005 11:13:07 AM

If I'm not not mistaken, footnote 5 of Justice Thomas' partial concurrence/dissent in Booker says that Blakely actually requires findings beyond a reasonable doubt for facts that increase the advisory Guidelines calculation.

Marc Fernich
Defense Lawyer
New York City

Posted by: Marc Fernich | Jan 20, 2005 11:32:41 AM

I am not so sure that judges are not required to confine the sentence to the "Apprendi maximum." Under Booker's Holding #1 (reaffirming Apprendi and Blakely), the "old law" is mandatory Guidelines which can have a maximum sentence no greater than that corresponding to facts that were charged and proved to a jury or admitted by the defendant. Holding #2 rewrites the Guidelines as non-mandatory for the very first time, and in doing so, replaces the old maximum with the statutory maximum. A defendant on direct appeal or in a first sentencing who committed the offense before Booker gets the benefit of Booker's constitutional rule that benefits him (i.e., Holding #1), see Griffith v. Kentucky, but not (under ex post facto principles applicable through the Due Process Clause) the detriment of a judicially re-written statute that disadvantages him. See Marks v. United States, 430 U.S. 188, 196-97 & n.13 (1977); Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964).

Posted by: Amy Baron-Evans | Jan 20, 2005 1:27:07 PM

I don't know if this is the right place to post this...but I was wondering how other districts are treating BLakley/Booker/Fanfan in direct appeals or pending appeals.

I know that the 11th circuit has a policy to appose all appeal bond and resentencing motions....are other districts doing this as well?

this seems to suggest that the 11th circuit certainly feels that the guidelines are good recomendations for most cases, if not they would allow resentencing and possible appeal bonds, they won't even hear them, are other circuits doing the same on the appealette level?

Posted by: D | Jan 20, 2005 2:06:14 PM

Like Prof. Berman, I read Booker, as written, to say that the judge decides the facts. If not, why would Mr. Fanfan's case have been remanded, since Fanfan's judge deferred to the jury verdict in that case? However, I do think that prior posts provide a strong rationale for why Part 1 - the constitutional majority - may still trump part 2, the remedial majority.

I am a defense lawyer, and my current case provides an excellent example. My client was convicted pre-Blakely of damaging public property. The trial evidence indicated (wrongly, we contend) that the damage was around $400,000. We say the property was worth no more than $4,000 to $6,000.

The jury verdicts included 4 statutory threshholds of "over $1,000", making it clear that the jury found a minimum of $4,000 in damage, but unclear how much more was found. Several counts resulted in directed verdicts and acquittals, so we do not know how much of the government's evidence the jury actually believed.

Sentencing for this crime is entirely driven by dollar amount of damages: $4,000 damage is level 7, 0-6 months; $400,000 is level 15, 18-24 mo.

I think that the comment above by Cynthia Reed Eddy is quite valid. The constitutional majority held that any factor necessary to a sentence must be found by a jury. The remedial majority held that any sentence must be "reasonable." How can it be reasonable to sentence a person to years in prison based on an amount of damage found by the judge that is 100 times the only number incorporated in the jury's verdict? It seems to me that for a 2-year prison sentence in this case to be "reasonable," it would be absolutely "necessary" for there to have actually been $400,000 in damage, and thus this finding is "necessary," and therefore covered under Blakely.

I think parts 1 and 2 are at war with each other and the issue is not as clear as it may seem.

Posted by: Bill Kirchner | Jan 21, 2005 11:58:22 AM

Amy Baron-Evans wrote:
> A defendant on direct appeal or in a first sentencing who committed the offense before Booker gets the benefit of Booker's constitutional rule that benefits him (i.e., Holding #1), see Griffith v. Kentucky, but not (under ex post facto principles applicable through the Due Process Clause) the detriment of a judicially re-written statute that disadvantages him. See Marks v. United States, 430 U.S. 188, 196-97 & n.13 (1977); Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964).

***

I think she should read Rogers v. Tennessee, 532 U.S. 451, 456-62 (2001) before trying that one out on a court.

Posted by: agl | Jan 21, 2005 12:33:46 PM

There is great wisdom in D's post - parts 1 and 2 of Booker do seem inescapably at war with each other. In the very least, there are troubling inconsistencies.

While I sense a growing number maintain a fair certainty that Booker does not require compliance with Blakely, I have been unable to locate a single argument articulating why - or more to the point, how such an interpretation could persist in the absence of wishing away the first part of the decision.

I suppose the argument would be that, under Booker, facts proven to a jury beyond a reasonable doubt or admitted by the defendant are required only when a sentencing judge is compelled to impose sentence. This would be a passable argument, if it did not fly in the face of Apprendi itself. There, the jury had found the defendant guilty of crime X, but the judge
took it upon himself to also find him guilty of crime Y as well. Surely, once the jury had found the defendant had committed acts constituting crime X, it was mandatory that the judge impose the commensurate punishment for crime X. So too when the judge found facts that would render the defendant guilty of crime Y, state law would compel the judge to impose the punishment for crime Y. But it was not mandatory that the judge take that extra step of finding the defendant guilty of crime Y. Thus it could not have been the compelled sentencing of the defendant for committing crime Y that offended the 6th Amendment in Apprendi, for sentencing for crime Y was not there compelled. Rather, at issue was the sentencing judge's exercise of discretion to go beyond those facts proven to a jury and admitted by the defendant to find culpability for crime Y - the very decision to go from crime X to crime Y.

Soo too, when Booker part I states that sentences must be based only on facts jury proven or defendant admitted, the constraint cannot be limited merely to those occasions when sentencing is mandated - the constraint also serves to preempt judges from taking it upon themselves to go hunting for ways to increase a sentence. To hold otherwise would turn Apprendi and Blakely on their respective heads.

Perhaps I have neglected other arguments that might reconcile parts 1 and 2 of Booker, but I have exhausted all that I could dream of. I'm anxious to hear others, though, to be convinced that sentencing judges need not feel bound by Blakely.

But what ever those arguments might be, I am fairly certain that the following must be explained: If sentencing judges are indeed not constrained by Blakely, then what has become of Blakely - and Apprendi even? Part I of Booker appears to have removed the fig leaf that once differentiated "sentence enhancements" from punishment for solely judge-found crimes. If, as the growing trend of the argument would suggest, sentencing judges may sentence based on facts not jury proven or defendant admitted, what use is Apprendi? I can see none, and for that reason am startled by the suggestion.

To give meaning to not only Booker Part I, but also those pronouncements that came before it, sentencing judges must be confined to those facts proven to a jury beyond a reasonable doubt or admitted by the defendant.

Thus, I read Booker to impose on sentencing judges - both on present remands and in future sentencing - the following constraints:

1. Imposition of sentences must be based solely on facts proven to a jury beyond a reasonable doubt or admitted by the defendant. (from part I)

2. Sentencing judges must not apply the Guidelines in a mandatory fashion.

3. Sentencing judges must, however, consult the Guidelines prior to rendering sentence - taking into account the litany of policy considerations catalogued by Justice Breyer.

I am anxious for any thoughts - particularly objections - on the matter.

Posted by: RW | Jan 21, 2005 2:02:03 PM

Here's a thought. 18 USC 3553(a)(4) requires judges to consider, as one of many factors, "the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission pursuant to section 994 (a)(1) of title 28, United States Code, AND THAT ARE IN EFFECT ON THE DATE THE DEFENDANT IS SENTENCED[.]"

I think this last clause provides considerable support for how to synthesize the two majority opinions and for Blakely-izing Booker. For the merits majority, the Guidelines still "in effect" (whether we think of them as mandatory or advisory) are the ones that conform to Blakely. The remedial majority requires us to consider the USSG insofar as we are required to by section 3553(a). These are the Blakely-ized USSG and are the only ones still in effect as of 1/12/04 and are the only ones that should be considered under section 3553(a).

I would also add that when considering the factor in 18 USC 3553(a)(3), "the kinds of sentence available," a sentence in violation of the Sixth Amendment (which would be a sentence calculated under pure USSG under facts like Blakely and Booker's) could not certainly be considered an "available" sentence or a "reasonable" sentence, or both. Put simply, UNCONSTITUTIONAL = unreasonable and unavailable.

I look forward to your thoughts. Also, when I say "pure USSG" I mean pre-Booker, Blakely and all the other broo ha ha.

I'm a law school grad, practicing in a firm, doing some criminal defense work and have not yet been admitted to the bar (though I passed the exam--whoo hoo!).

Posted by: Lenore | Jan 22, 2005 2:19:49 AM

you know, that should read "as of 1/12/05" but i'm sure you all will cut me some slack, it being 2:22 in the early morn

Posted by: Lenore | Jan 22, 2005 2:22:22 AM

Hello,
I am not a student or attorney, but a mother of a son that was sentenced using the previous mandatory sentencing guidelines. We are trying to find information related to the recent court decision held in the 9th circuit (Nevada) that reduced a sentence after his motion (I think a 2255)was addressed by the court.

Posted by: Trinka Stone | Jan 23, 2005 3:37:33 PM

I'm reading your materials because of my Son that I love dearly and I really think he is getting a raw deal. I guess you've heard that before , my Son turned me on to this information.

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Posted by: | Oct 14, 2008 7:05:31 AM

I am reading this trying to find help for my brother who was sentenced to 60 months for embezzelment of $56,000.00. He made restitution before he was even interviewed. He has never been in trouble and had a sentencing score of 12. I noticied other people who have been sentenced in the same type of case, and the dollar amount was more, received less of a sentence.

Posted by: Janet Medlock | Feb 3, 2009 10:50:45 PM

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