Thursday, February 23, 2006
The latest must-read on Blakely/Booker
Professor Ron Wright, throughout his copious work on federal and state sentencing systems, always adds an insightful and distinctive perspective to our understanding of sentencing reform. (Bias acknowledgment: Ron is a co-author on my casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines.) Ron's latest paper (available here), entitled "The Power of Bureaucracy in the Response to Blakely and Booker," is no exception. Here is part of the abstract:
How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences? The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy. Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible. The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing systems to the upset from Blakely and Booker.
February 23, 2006 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, February 13, 2006
Blakely and Booker action at the Ninth Circuit's judicial conference
With thanks to Howard for the link, I see from this news release that the theme of the Ninth Circuit's judicial conference this summer is "Seismic Shifts in the Law and in Our Lives." That document explains that "general sessions will focus on sentencing, juries, natural disasters, court security and disaster planning, and judicial wellness." By my lights, all of these topics could be viewed as various aspects of Blakely and Booker, save perhaps court security.
Sunday, February 12, 2006
A Valentine week sentencing wish list
For a long-married fellow like me, Valentine's Day feels like being an Olympian heavily favored to win a gold: if I perform well, I will only meet expectations; if I perform poorly, many are disappointed and my reputation can be tarnished. Nevertheless, I am looking forward to this Valentine week with hope that some sentencing-related wishes might be fulfilled by others:
US Supreme Court: I would love a cert grant in the major state Blakely cases that are scheduled to be conferenced this Friday (background here and here and here), in part because I am so curious to find out what Justice Alito and Chief Justice Roberts think about Blakely (background here and here).
State Supreme Courts: I would love decisions in major Blakely cases that the Ohio Supreme Court has been considering for nearly seven months (background here) and that the Michigan Supreme Court has been considering for over three months (background here).
US Sentencing Commission: I would love new data about the post-Booker world, especially since it's been more than five weeks since the USSC's last data report (background here). I would also love some official news about when we might expect the USSC's comprehensive Booker report. Post-Booker patience may be a virtue, but mine is short.
US Department of Justice: I would love a thoughtful and public DOJ report on the pros and cons of the post-Booker world from the perspective of federal prosecutors. We've seen such a report from federal defenders in a (long and powerful) letter to the USSC. I'd now like to hear the other side, perhaps through a similar letter to the Commission.
Circuit and District Courts: I would love a lot more decisions, like those recently from the Sixth Circuit and Judge Adelman and Judge Bataillon, which take both parts of the Booker ruling seriously and give focused attention to the plain text of 3553(a).
Tuesday, January 17, 2006
The possible impact of a Sca-Roberts on sentencing jurisprudence
From a quick review, the Supreme Court's 6-3 ruling today in the assisted suicide case, Gonzales v. Oregon, seems rich with meaning and ironies. Of course, I am always seeing sentencing angles (even when they are not there), and today that angle comes from the fact that Chief Justice Roberts joined Justice Scalia's dissenting opinion in Gonzales v. Oregon. When considered together with CJ Roberts' vote and opinion assignment to Justice Scalia in the 5-4 capital case decided last week (details here), I cannot help but observe that the new Chief seems so far to be quite in tune with Justice Scalia's view of the jurisprudential world.
Of course, though some may bemoan this (admittedly limited) evidence of a "Sca-Roberts," criminal defendants (at least those not on death row) should be pleased my over-reading of these early tea leaves. As I explained in this post following the Alito nomination, from the perspective of a criminal defendant, a Supreme Court filled with justices like Antonin Scalia would not always be so bad because Justice Scalia's constitutional vision sometimes leads him to liberal results: consider Justice Scalia's work in Blakely, where he boldly asserts that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," and Justice Scalia's work in Sullivan, where he argues that judges in some cases should not be permitted to affirm convictions by declaring certain constitutional violations harmless.
Recalling the current SCOTUS sentencing head-count on Apprendi-Blakely-Booker issues, it is remarkable to think about what might happen if Justices Roberts (and Justice Alito as well) were to embrace Justice Scalia's perspectives on jury trial rights. Blakely's reach and impact might ultimately be even broader than anyone has predicted.
Monday, January 16, 2006
Why Kaua may be the circuit decision of the month (so far)
January is living up to my prediction as an amazing sentencing month, although I did not predict that we would get so many important and consequential circuit rulings to kick off the new year. Indeed, the 1st Circuit's decision in Pho, the 4th Circuit's decision in Clark, the 8th Circuit's decision in Mickelson, and the 11th Circuit's decision in Williams are arguably among the most important circuit decisions concerning Booker that we've seen in many months.
But there is one recent circuit decision that should not be overlooked in all the Booker action: the Ninth Circuit's habeas decision in Kaua (discussed here), which ruled (despite a contrary opinion from the Hawaii Supreme Court) that an aspect of Hawaii's sentencing system violates the Apprendi-Blakely rule. Here are just a few reasons why Kaua strikes me as especially important:
- The decision rejects an effort to expand the ambit of the "prior conviction" exception to the Apprendi-Blakely rule, and thus reinforces the Ninth Circuit's view that Blakely announced a bright line.
- The decision disagrees with the Second Circuit's ruling in Brown v. Greiner (basics here, commentary here) addressing a similar issue in New York sentencing law.
- Because the state lost, and because Kaua rejects a considered view of Hawaii's Supreme Court, the posture of this case suggests cert. might be sought (and might be granted?) to explore the status and scope of the "prior conviction" exception.
- The Ninth Circuit's willingness to enforce its bright line view of Apprendi and Blakely in a habeas setting strongly suggests that the Circuit will not look kindly upon the state of California's efforts to preserve its sentencing system in the wake of Blakely. Though I suspect the Supreme Court will be examining California's Blakely dodge before California habeas cases make their way to the Ninth Circuit, Kaua will loom especially large if the Supreme Court decides not to take a California Blakely case soon.
January 16, 2006 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the States, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Thursday, November 17, 2005
Judge Gertner applies Sixth Amendment to restitution
Hall of Famer Massachusetts US District Judge Nancy Gertner issued another major ruling on Booker issues earlier this week with another decision in US v. Mueffelman, No. 01-CR-10387-NG (D. Mass. Nov. 14, 2005) (available here). In this iteration of Mueffelman, Judge Gertner breaks new ground with respect to the application of Blakely and Booker to orders of restitution:
[T]his case raised an issue of first impression in this Circuit -- whether victims who were not specifically named in the indictment could receive restitution under the MVRA. That issue requires resolution of at least two others -- whether restitution under the MVRA is compensatory (to the victims) or punitive (to the defendant) or both, and if punitive to any degree, whether the order is subject to the protections of the Sixth Amendment. I have concluded that restitution is punitive, and subject to the Sixth Amendment's protections. Nevertheless, in applying that analysis to the case at bar, I have ordered restitution to victims who, while not named in the indictment, fit within the "scheme" that was alleged and proved.
I believe this Meuffleman ruling is the first to find Blakely and Booker applicable to orders of restitution under the MVRA; a number of circuits have expressly rejected such a claim, though the Third Circuit is considering the issue en banc. Given that Judge Gertner in her first ruling in this case right after Blakely last July essentially predicted the outcome in Booker, I would not quickly presume that her views on these restitution issues won't prevail.
Monday, October 24, 2005
Blakely/Booker cases on-line about to top 10,000!
Today, which happens to be exactly 16 months since the Blakely decision was handed down, a search on Westlaw in the allcases file in the form of "da(aft 6/24/2004) & (blakely booker) & sentenc!" produced 9946 case hits. (Interestingly, 3603 of these hits are in the allstates database, while 6343 come from the allfeds database.) A similar search in Lexis, for either the last year or the last six months, gets interrupted "because it will return more than 3000 results."
Notably, it was just over four months ago, as detailed in this post, that the total number of on-line case hits for this search topped 5000; it appears we are now getting more than 1000 Blakely or Booker decisions coming on-line each month. Especially given that these numbers do not reflect the tens of thousands of sentencings that Blakely or Booker have impacted which do not result in an on-line opinion, I view this data as providing further support for my (hyperbolic?) claim in this Slate piece last year that "Blakely is the biggest criminal justice decision not just of [the 2003 SCOTUS] term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."
Monday, September 19, 2005
Third Circuit to examine en banc Blakely's impact on restitution
The folks over at Appellate Law & Practice have a lot of strong recent posts, including this item which helpfully pointed me to this extended post from the Third Circuit Blog detailing that the Third Circuit "has sua sponte voted to rehear en banc three appeals previously argued before two different panels in which the issue is whether the rule of Blakely and Booker applies to orders of restitution and forfeiture." By my lights, this is an quite interesting and important development.
As detailed in this post on an Eighth Circuit decision last month, the consensus view in the federal circuits is that neither Apprendi nor Blakely prohibit judicial fact finding for restitution orders. But, as I have said before, that consensus view seems somewhat suspect in light of Justice Scalia's forceful and broad assertion for the Court in Blakely that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."
David McColgin's post at the Third Circuit Blog provides a useful primer on why the Third Circuit will have a lot to consider in these en banc cases, and this prior posts details that at least one academic commentator thinks that the Third Circuit ought to follow a different path than the other circuits on these important issues.
September 19, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Booker in the Circuits, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
Friday, August 26, 2005
Is SCOTUS interested in the consecutive sentencing Blakely issue?
Lower courts have all been in agreement that Blakely does not formally apply to a judicial decisions to impose consecutive sentences, even though a functional understanding of Blakely suggests its applicability when a sentencing scheme requires the finding of a predicate fact before a consecutive sentence can replace a presumptive concurrent sentence. Interestingly, thanks to the reemergence over at INCourts of Michael Ausbrook (whose coverage of state Blakely issues has been missed), I see that the Supreme Court might be interested in the consecutive sentencing Blakely issue.
As Michael explains in this post, after Indiana defendant Smylie filed a cert. petition on the question of Blakely's applicability to consecutive sentences, the Supreme Court ordered Indiana to file a response even though the state has waived its right to respond. Though I think other Blakely issues are more pressing and one should not read too much into a briefing request, I think Michael is right to comment that "somebody in Washington seems interested in Smylie, Blakely, and consecutive sentencing."
Tuesday, August 16, 2005
Pondering the next SCOTUS Blakely/Booker case
The recent cert petitions in Blakely cases coming from California and from Tennessee have me thinking hard about exactly which case and exactly what issue will provide the setting for Supreme Court's next foray into the Blakely and Booker thickets. Notably, my outline in this post of key post-Blakely and post-Booker questions that merit the Supreme Court's attention did not focus on various issues that many state systems are struggling through. It is fun (but probably foolish) to speculate that the Supreme Court decided to pass on the issue of Booker plain error (basics here, commentary here and here) in order to save its time and energies for cleaning up some of the state Blakely mess it has made.
My SCOTUS pondering has both a descriptive and a normative component: I am wondering which Blakely/Booker case and issue the Supreme Court likely will take up next and also considering which Blakely/Booker case and issue the Supreme Court should take up next. Ultimately, I still think the validity and scope of the "prior conviction" exception, which the Shepard decision further confused, is the most pressing and important issue needing to be resolved, but lately I am thinking that the High Court may find its way to taking up some other Blakely/Booker issues first.
Perhaps readers might use the comments, which have been fairly quite of late, either to make predictions about the next Blakely/Booker case and issue likely to come before the Supreme Court or to advocate a position concerning which Blakely/Booker case and issue the Supreme Court should take up next.
Tuesday, August 02, 2005
SCOTUS is out of touch
So says Stuart Taylor, Jr. in this interesting piece from The Atlantic Monthly (hat tip Howard). The main theme of Taylor's piece is captured by its subtitle: "The Supreme Court's greatest failing is not ideological bias — it's the justices' increasingly tenuous grasp of how the real world works." The piece's opening paragraph spotlights that the current members of the Supreme Court lack experience in many legal and political arenas, and Taylor rights notes, as I have in prior posts, the limited trial court experience and criminal law experience among the current Justices. Also, Taylor's essay includes this effective paragraph summarizing the mess that SCOTUS has made through its Apprendi-Blakely-Booker sentencing jurisprudence:
In a string of decisions since 2000 the Court has thrown the criminal-justice system into utter confusion by repeatedly changing the rules on the roles of judges and juries in sentencing, while providing minimal guidance on how the new rules should be implemented. In response to the rulings, thousands of current inmates have requested re-sentencing, to the consternation of federal trial and appellate judges, who are all over the lot on how to handle these requests. (The judges also have major differences of opinion on how much weight they should now give sentencing guidelines in new cases.) We'll be hearing more about this confusion — it's a clear recipe for an onslaught of additional appeals down the road, which will further tax our already overburdened criminal-justice system.
UPDATE: A helpful reader pointed me to this interesting column picking up the same themes about the Supreme Court being too cloistered. The author suggests that Justices be brought "home to the towns where they grew up or worked or raised their families. Let's keep them in our midst so they can live the lives of average Americans and stay close to our hopes and fears and daily struggles."
Tuesday, July 19, 2005
Points for creativity?
If ever in these crazy modern times you find yourself nostalgic for ancient common law writs, I have a sentencing case for you. Today in US v. Holt, No. 04-15848 (11th Cir. July 19, 2005) (available here), the 11th Circuit faced a Blakely claim raised in a writ of audita querela: "Holt argues that a federal court may vacate a criminal conviction or sentence, pursuant to a writ of audita querela, if there is a legal objection that did not exist at the time the judgment was entered." As the 11th Circuit explains:
Audita querela, Latin for "the complaint having been heard," was an ancient writ used to attack the enforcement of a judgment after it was rendered. Black's Law Dictionary 126 (7th ed. 1999). The common law writ was typically employed a judgment debtor in a civil case against the execution of a judgment because of some defense or discharge arising subsequent to the rendition of the judgment or the issue of the execution. The writ of audita querela was abolished, however, in the civil context by the Federal Rules of Civil Procedure. We have not addressed the writ's continued applicability in the criminal context.
Awarding no points for the defendant's creativity in the invocation of common law writs, the 11th Circuit rejects the defendant's efforts: "We hold that a writ of audita querela may not be granted when relief is cognizable under 28 U.S.C. § 2255, as it is here. Moreover, construing Holt's motion or writ as one made pursuant to § 2255 we find that he has failed to obtain an order from our court authorizing the district court to entertain Holt's second and successive motion for such relief."
Saturday, July 16, 2005
More great sentencing reading, especially for SCOTUS watchers
I am, slowly but surely, working through all the amazing sentencing article in this great Columbia Law Review issue. But, especially with a Supreme Court vacancy garnering everyone's attention, I want to spotlight another interesting sentencing piece that is on my night-table.
Professor Richard Myers, in a piece entitled Restoring the Peers in the "Bulwark": Blakely V. Washington and the Court's Jury Project, 83 North Carolina Law Review 1383 (June 2005), explores the reasons why a seemingly unusual coalition of Justices came together to champion jury trial rights in Apprendi and Blakely and Booker. Here is a snippet from the introduction:
The opinions in these cases reveal that the so-called "centrist" Justices on the current Court have difficulty identifying the right to jury trial — at least as defined by the Blakely majority — as a mainstream value. The unconventional lineup in the Blakely/Booker line of cases confounds the conventional wisdom, as well as the social scientists' models.... These cases, which together have fundamentally altered state and federal structured sentencing guidelines systems, suggest that for some reason, the "centre cannot hold."
The Court's holding in Blakely extends a line of recent cases exploring the meaning of the right to a jury trial and establishes a readily understood principle for deciding what the right means and when it is being eroded. The Blakely line of cases shows that the jury stands at a constitutional crossroads where substantive and structural issues overlap. The jury right implicates substantive concerns critical to the left, such as innocence, appropriate levels of punishment, and proportionality, as well as structural concerns critical to judicial conservatives, such as separation of powers and democratic theory principles. This position ensures that the right to a jury trial will endure as a core constitutional value.
The insights developed by Professor Myers reinforce some points I have made here and here and here that a new Justice replacing the "centrist" Justice O'Connor could have an interesting and perhaps unexpected impact on the Supreme Court's still developing sentencing jurisprudence.
In the interest of full disclosure (and also self-promotion), I should note that another passage in Professor Myers' article also garnered my attention. In the course of noting the academic contributions to the on-going debate over sentencing reform, Professor Myers kindly notes:
Professor Doug Berman's weblog, Sentencing Law and Policy has become the informational locus of the debate, with multiple courts citing it in opinions, and serious scholars of sentencing policy checking it almost daily. Opinions and other source materials appear there within hours, rendering it the equivalent of a real-time treatise that the participants consult as they shape the debate.
Monday, July 11, 2005
All about Apprendi
Though I often talk of Blakely as the earthquake case which shook the foundations of structure sentencing reform, this recent article is a fitting reminder that the Apprendi decision really started the sentencing tremors. The article takes stock of Apprendi's impact and has this clever opening: "The most influential lawmaker to emerge from South Jersey in recent years arguably has not been a governor, senator or member of the House. It's a citizen who appealed his sentencing for a crime — Charles C. Apprendi Jr."
Among the interesting tidbits to be found in this article is a claim by Charles Apprendi's defense lawyer that the Apprendi decision has already been cited in nearly 30,000 cases and thus is "the third most-cited case in all of American law, behind only the court's 1973 ruling in Roe vs. Wade, ... and the 1966 case of Miranda v. Arizona." Also, the article states that Charles Apprendi ultimately served only about 1/3 of his prison term before being released to a halfway house, and that he is now eligible for parole and may "soon may be a free man."
Monday, July 04, 2005
Celebrating liberty, Blakely-style
I have plans later today to celebrate liberty by watching a parade and fireworks. But, showing my true law geek colors, I started today by re-reading Justice Scalia's opinion for the Court in Blakely v. Washington. Though other recent Supreme Court decisions may also make for good reads on July 4th, I am always inspired by the principles of freedom, democracy and limits on government oppression that I see at the core of Blakely's holding. As a reminder of how these patriotic values course though Blakely, consider these passages from Justice Scalia's opinion for the Court:
That right [of jury trial] is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.
The jury could not function as circuitbreaker in the State's machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.
There is not one shred of doubt ... about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.
The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to "the unanimous suffrage of twelve of his equals and neighbours," 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State.
In addition to finding these quotes stirring, these quotes also make me a bit sad in the wake of Booker and some state rulings and legislation that have responded to Blakely by expanding judicial sentencing discretion. Though there are virtues to enhanced judicial sentencing discretion, that sort of response to Blakely tends to treat the right to a jury trial as a "mere procedural formality" and also diminishes the ability for juries to "function as circuitbreaker in the State's machinery of justice."
Friday, July 01, 2005
Resources for those in the Black
The folks at California's First District Appellate Project have previously provided terrific resources here on Blakely, Booker and Shepard. I now see that the FDAP folks are starting to assemble materials to deal with California Supreme Court's big Blakely decision last week in Black (basics here, commentary here and here).
To begin, at this link you can access a memo authored by Jonathan Soglin entitled "Blakely, Booker, and Black. Now What?" Here's an account of the memo from its introduction:
This memorandum will provide quick suggestions as to how appellants can procedurally respond to Black in order to preserve Blakely claims. This memorandum will also provide some guidance for triage of cases in order to determine which cases may be best suited for certiorari petitions raising Blakely claims.
Tuesday, June 28, 2005
Initial end-of-Term reflections on criminal justice and sentencing
Though the blogsphere and the media are still focused principally on Monday's Ten Commandments and file sharing rulings from the Supreme Court, it will soon be time for end of Term reflections. Indeed, Scripps Howard News Service already has this review of the Term just completed, and I trust we will see more of the same soon from many sources.
To beat the rush, here are my first-cut anecdotal impressions (biased by my inevitable sentencing focus) of the Supreme Court's criminal justice work this Term: (1) there were a lot of capital and habeas cases, (2) there were relatively few police practices cases, and (3) criminal defendants and prisoners generally did better than I have come to expect. Notably, if you count Cutter and Medellin and Raich as criminal justice decisions, half of Tom Goldstein's ten biggest rulings of the Term are criminal cases. However, because I view those cases as examples of the common intersection of federalism and constitutional law in the midst of the criminal justice system, in my mind only Booker and Roper should be remembered as big criminal justice decisions from this past Term.
I believe the limited number of big criminal justice rulings flows directly from Supreme Court's apparent obsession with capital cases (which I have lamented in previous posts here and here and here and here), as well as its constant need to sort out procedurally intricate habeas/AEDPA issues. Effectively capturing my own frustrations with the Supreme Court's sentencing docket, Mike at Crime & Federalism has these astute and potent comments:
What's up with the Court's granting cert. on so many death cases? The death penalty is rarely meted out. If the members of the Court really cared about sentencing, they'd grant cert. on the various Blakely/Booker issues. If the "liberals" cared so much about justice in sentencing, they'd not have crafted their lame and unprincipled Booker remedial scheme. Sure, "death is different," but death is also rare. The horrors of prison are real and frequent. Why not ensure that only those found guilty by a jury of their peers spend time in prison?
UPDATE: Also getting a jump on end-of-Term coverage is Tony Mauro, who has this great piece at Legal Times (which can be accessed by all thanks to law.com). Tony's piece has lots of perspectives on the Court's work this Term, and it closes with a set of great NBA analogies that now have me trying to decide if SCOTUS had a year more like the Spurs or the Pistons. (Perhaps the High Court's home-town Washington Wizards might be the best comparison, since the Wizards had a pretty exciting and often surprising year.)
NBA/SCOTUS comparisons seem especially apt today. Tonight is the NBA's draft, and all the buzz over who might soon play in the NBA seems pretty comparable to all the buzz over who might soon be a Justice if there is a retirement announcement. Perhaps we might even see some NBA general manager, looking for a sleeper pick late in the NBA draft, drawn in by the Draft Prado campaign.
Friday, June 24, 2005
Happy Birthday, Blakely!
A year ago today, the Supreme Court handed down its decision in Blakely v. Washington. In my post after first seeing the decision, I commented that "the ramifications of this decision for modern sentencing reforms cannot be overstated," and that there will "be lots and lots more litigation (some of which will surely make its way again to the Supreme Court) about what [Blakely] now means for the operation of structured sentencing systems." An on-line search this morning provides support for these predictions: running the search "(Blakely or Booker) & sentenc!" after June 24, 2004 in Westlaw's allcases database now produces 5511 "hits" (with 2270 from allstates and 3244 from allfeds). The same search in Lexis gets interrupted "because it will return more than 3000 results."
So, on its birthday, what do you get for Blakely, the sentencing case that has everything? Perhaps a debate in the comments about whether the sentencing world is better or worse a year after Blakely. I vote better in part because Blakely (and Booker) have helped stimulate a long overdue national discussion of sentencing law and policy. But I would like to hear other perspectives.
Sunday, June 19, 2005
Big Supreme Court week ahead
According to the folks at SCOTUSblog, the US Supreme Court will be issuing opinions on both Monday and Thursday this week. Howard Bashman at How Appealing does a great job here detailing the 17 argued cases still pending, a number of which include habeas issues and a few of which could speak to a range of sentencing issues.
Equally exciting, we may hear on Monday whether SCOTUS will take up Booker plain error in the Rodriguez case. Since the SG has called for cert. to be granted (details here and also here), I am certainly expecting to hear that the Supreme Court will jump in to resolve the three-way circuit split on this major Booker pipeline issue.
And certainly not to be overlooked, as detailed here, we are supposed to be getting on Monday a decision from the Supreme Court of California in People v. Black, the big state Blakely case argued back in April. Since Blakely has made a major mess in California for a year now, I am very interested to see how Black tackles Blakely in California.
Sunday, June 12, 2005
Blakely/Booker case cites top 5000
With still two weeks until Blakely celebrates its one-year anniversary, a search this morning of "(Blakely or Booker) & sentenc!" after June 24, 2004 in Westlaw's allcases database produces 5036 "hits" (with a breakdown of 2156 in allstates, 2880 in allfeds). The same search in Lexis, for either the last year or the last six months, gets interrupted "because it will return more than 3000 results." The search in Lexis for the last month produces 850 hits, suggesting that we may see on-line over 10,000 cases citing Blakely or Booker in 2005.
Especially given that these numbers do not reflect the tens of thousands of sentencings that Blakely or Booker have impacted which do not result in an on-line opinion, I view this data as providing some support for my hyperbolic claim in this Slate piece last year that "Blakely is the biggest criminal justice decision not just of [the 2003 SCOTUS] term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court." Indeed, as we approach Blakely's one-year anniversary, I encourage readers to suggest in comments other ways to take stock and assess the Blakely year that was.
Saturday, June 11, 2005
Applying Apprendi to juvenile bind-over
Thanks to a helpful reader, I found this fascinating article from the Dallas Morning News which reports that "State District Judge Manny Alvarez on Friday dismissed a murder indictment against Marco Lopez, 16, saying the court lacked jurisdiction over the case because the teenager was transferred to the adult system without the blessing of a jury."
I know lawyers have previously claimed that Apprendi might impact judicial fact-finding required for a juvenile transfer to an adult court (where, typically, a much higher maximum sentence is available). But I have not previously heard of a court actually extending Apprendi to such bindovers. Indeed, the article states:
In his opposing motion, [Assistant DA] Rogers argued that defense attorneys in other states have unsuccessfully tried to use the same Supreme Court case to influence juvenile transfer cases. "No other court in the United States has extended Apprendi to this level," Mr. Rogers said.
Interesting stuff, and an issue to follow as this one case is appealed and others are brought with similar claims: "Rogers said he will appeal the ruling [and attorneys involved] in the case said the ruling is likely to spur a flurry of similar motions."
Wednesday, June 08, 2005
Fantastic Columbia Law Review issue at a discount
In a number of prior posts (e.g., here and here), I have lavished deserved praise on the Columbia Law Review for its recent symposium "Sentencing: What's at Stake for the States?". The kind folks at CLR were kind enough to send me an advance copy of its May issue with all the articles from the event. I am truly awed and overwhelmed by all the great sentencing pieces to be found therein. And today I received this thoughtful note from CLR's editor-in-chief:
I wanted to offer readers of your blog a discounted purchase price on copies of the issue. Because this issue is about twice the size of our normal issues, we've set the price for the general public at $25 (including shipping and handling), but with the special blog order form [available for download below], readers of your blog can purchase individual copies at $20 a copy using the form.
Though I believe individual articles will eventually be made available on the CLR website, all true sentencing maniacs will want a copy of the full issue for effective beach reading.
The 2d Circuit's recent Apprendi habeas ruling and distinguishing finding offense facts from making sentencing judgments
The Second Circuit Blog today has this interesting commentary on the Second Circuit's notable ruling late last week concerning Apprendi's applicability to New York's persistent felony offender statute in Brown v. Greiner (basics here). That commentary laments that "too much has been made of this exceedingly narrow decision," and it correctly emphasizes that the Second Circuit's ruling was applying AEDPA habeas standards and that Brown "is limited to cases that became final before any of the post-Apprendi cases had been decided."
The lengthy critical discussion of Brown at the Second Circuit Blog merits a close read, and it concludes by noting that New York's highest court has a case pending on direct appeal that will require it to address directly whether New York's persistent felony offender statute is constitutionally sound in light of the post-Apprendi decisions in Ring and Blakely.
In a future post (and in a future article with the working title "Conceptualizing Booker"), I hope to explain why the ruling in Brown is perhaps not quite as "curious" as the Second Circuit Blog suggests. Let me preview my idea here and encourage comments from readers: the Second Circuit's decision in Brown, as well as the recent Ohio decisions which find Ohio's sentencing scheme largely dodges Blakely problems, both suggest there is an important constitutional distinction to be drawn between (1) finding offense facts that increase applicable sentences (which is now clearly a task for juries), and (2) making sentencing judgments that increase applicable sentences (which is a task that arguably can still be given to judges).
This proposed distinction between finding offense facts and making sentencing judgments dovetails somewhat with the offense/offender distinction developed in my Conceptualizing Blakely article, but it is not the exact same idea. Indeed, the offense/offender distinction cannot fully justify the Booker remedy, since federal judges applying advisory guidelines are still finding offense facts when determining the guidelines advisory ranges. But, what makes post-Booker sentencing different is that, as a result of the remedy devised by Justice Breyer, federal judges are now plainly required to make sentencing judgments using the 3553(a) factors concerning whether to follow the guidelines.
Put another way, the Apprendi-Blakely cases can (and perhaps should) be understood to demand only that juries have a role in finding legally essential offense facts, and these cases do not preclude a judges from making broader sentencing judgments based on facts of all sorts. (This idea also dovetails somewhat, but not perfectly, with the fact/law distinction emphasized by Judge Easterbrook in Carpenter last month.) Notably, support for this reading of the Apprendi-Blakely cases can be drawn from Justice Scalia's concurring opinion in Ring, where in a final paragraph he asserts that the Ring holding demands "that the jury must find the existence of the fact that an aggravating factor existed," but still allows states to "leave the ultimate life-or-death decision to the judge."
June 8, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
A Blakely blank spot in sentencing reform principles
As evidenced by this AP story already appearing nationwide, the announcement on Tuesday by The Constitution Project's Sentencing Initiative of this set of "Principles for the Design and Reform of Sentencing Systems" is already generating some press coverage. Though I have already commented briefly on these principles in this post, I realized this evening that these principles have a Blakely blank spot in that they make no mention whatsoever of incorporating jury decision-making or jury values into the sentencing process.
The principles do speak to sentencing procedures in point 5, which states:
Meaningful due process protections at sentencing are essential. Fair notice should be provided and reliable fact finding mechanisms ensured. Judicial sentencing decisions should be subject to appropriate appellate review.
Relatedly, the principles also criticize the federal sentencing guidelines for placing "excessive emphasis on conduct not centrally related to the offense of conviction." Nevertheless, as revealed by the reference to "judicial sentencing decisions," the principles suggest a judge-centered vision of sentencing that seems more in harmony with the ideas and themes expressed by Justice Breyer in his Booker remedy opinion than by Justices Scalia and Stevens in their Blakely and Booker opinions.
Though I am generally sympathetic to a judge-centered vision of sentencing, in the wake of Blakely I have come to see a number of potential virtues in incorporating jury decision-making and/or jury values into the sentencing process in some ways. As detailed more fully in my recent "Conceptualizing Blakely" article, I believe Blakely expresses a fundamental and sound principle that defendants have a right to require the prosecution to prove to a jury all offense conduct for which the state seeks to impose criminal punishment. I am a bit disappointed that this "Blakely principle" gets no attention in the Sentencing Initiative's initial statement of design principles, though perhaps it will get some play in the forthcoming background report and specific recommendations for a post-Booker federal sentencing scheme.
June 8, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Saturday, June 04, 2005
1st Circuit addresses Blakely's applicability to revocation of supervised release
This past Friday was a day for interesting (and arguably ground-breaking) Apprendi/Blakely decisions. In addition to the notable Second Circuit ruling on Apprendi's applicability to New York's persistent felony offender statute in Brown v. Greiner (basics here), Friday also brought from the First Circuit US v. Work, No. 04-2172 (1st Cir. June 3, 2005) (available here), which rules that Blakely is not applicable to judicial determinations in the course of revoking supervised release and ordering a term of imprisonment.
Work is an interesting ruling for a number of reasons, and it provides useful background on both Blakely and the federal law of supervised release. Here is the decision's opening paragraph:
In this appeal, defendant-appellant Timothy P. Work argues that the Sixth Amendment, as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time. He posits that when such a revocation leads to additional imprisonment above and beyond the top of the original guideline sentencing range, the facts underlying the revocation must be proven to a jury beyond a reasonable doubt. We conclude that the appellant's argument is doubly flawed: it is premised not only on a misunderstanding of supervised release but also on an attempted importation of Sixth Amendment jury trial rights into an area in which they do not belong.
Among other interesting aspects of the Work court's discussion of these issue is this (debatable?) passage addressing not only the scope of the Sixth Amendment, but also due process concerns and requirements (citations omitted):
The difficulty with the appellant's argument is that this type of judicial factfinding [i.e., finding facts to confirm violation of supervised release conditions] does not pose a Sixth Amendment problem. The law is clear that once the original sentence has been imposed in a criminal case, further proceedings with respect to that sentence are not subject to Sixth Amendment protections. To be sure, the conversion of a less restrictive form of punishment, such as supervised release, to a harsher one, such as imprisonment, does entail a deprivation of liberty (albeit conditional liberty). As such, the accused must be accorded a suitable panoply of due process protections. The process that is due, however, does not encompass the full sweep of the Sixth Amendment's prophylaxis (such as a right to a jury trial on the facts of the alleged violation). Nor are facts required to be proven beyond a reasonable doubt in such a proceeding.
(First Circuit aficionados get only one guess as to the author of Work and its discussion of "the Sixth Amendment's prophylaxis.")
June 4, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Friday, June 03, 2005
Notable 2d Circuit Apprendi ruling on habeas
Thanks to Appellate Law & Practice's post here, I see the Second Circuit in a major habeas ruling involving New York sentencing statutes has put a fascinating and important gloss on Apprendi (and, consequently, Blakely and Booker). Here is the court's opening paragraph in Brown v. Greiner, No. 03-2242 (2d CIr. June 3, 2005) (available here):
These three appeals, which we have consolidated, present the same question: Were the state court decisions affirming Petitioners' extended sentences under New York's persistent felony offender statute, N.Y. Penal Law § 70.10, "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"? 28 U.S.C. § 2254(d). The relevant Supreme Court ruling to which the petitions refer is Apprendi v. New Jersey, 530 U.S. 466 (2000), which ruled that in order for a sentence to comply with the dictates of the Sixth Amendment, a factual finding that drives a sentence above the otherwise applicable statutory maximum penalty (other than the fact of a prior conviction) must be found by the jury beyond a reasonable doubt, or be admitted by the defendant. We hold it was not unreasonable, in light of then-existing Supreme Court precedent, for the state courts to conclude that a sentencing judge's "opinion" as to what type of sentence would "best serve the public interest" is not a factual finding within the meaning of Apprendi. We accordingly reverse the judgments granting writs of habeas corpus in Brown and Rosen, and affirm the judgment denying the writ in Ramos.
Sunday, May 15, 2005
Reviewing the status of restitution
I have noted in a number of prior posts the growing importance of restitution orders in state and federal courts and the uncertainty of Blakely's applicability to such orders (examples here and here). Shedding light on this important topic is a note about to be published in the Fordham Law Review that the author, Brian Kleinhaus, has made available for me to post.
This note, which is entitled "Serving Two Masters: Evaluating the Criminal or Civil Nature of the VWPA and MVRA Through the Lens of the Ex Post Facto Clause, the Abatement Doctrine, and the Sixth Amendment," is available for downloading below. It reviews the history of restitution and the two main federal restitutionary statutes, as well as the application of Blakely/Booker to federal restitution. Here is an excerpt providing highlights:
This Note argues that restitution is, and always has been, an additional method of punishing defendants that also increases society's recognition of the harm done to the individual victim of the crime, and that therefore restitution orders should be universally understood as criminal punishment. The legislative history of the VWPA and MVRA lends significant support to this Note's contention that Congress was aware of, and agreed with, the punitive and compensatory intent of restitution. The recent efforts by some federal courts to separate the underlying principle of restitution as punishment from its co-underlying principle of restitution as compensation have led to judicial decisions that are inconsistent with these original twin aims. Therefore, this Note asserts that restitution should never be separated from its penal, rehabilitative core, even if it also has a compensatory core as well.
Wednesday, May 11, 2005
Might Indiana's Supreme Court be a wise leader on the prior conviction exception?
Michael Ausbrook at INCourt has this notable post which details that the Indiana Supreme Court has ordered supplemental briefing in Ryle v. State focused on two questions concerning the scope of the "prior conviction" exception to the Apprendi-Blakely rule.
Ryle seems like an especially good test case for the scope of the "prior conviction" exception for a few reasons: (1) as detailed by Michael and in this post last year, Ryle directly addresses two key issues and uncertainties surrounding the prior conviction exception; (2) because Indiana's legislature has now passed a Blakely fix which makes Indiana's guidelines advisory, the state Supreme Court can consider the legal issues without pragmatic worries that all future sentencings hang in the balance, and (3) the Indiana Supreme Court's work in its big Blakely case, Smylie (basics here, commentary here and here and here) gave me the impression that this court really understands these issues.
Michael reports that oral argument in Ryle is not until next month, and I am not sure about the briefing schedule. But I will be eager to see what the parties have to say concerning one of the biggest and most important doctrinal issues still lurking in the post-Blakely world.
Wednesday, May 04, 2005
The waiting is the hardest part...
Over at SCOTUSblog, Tom Goldstein has this fascinating post previewing the Supreme Court's next term; he reports that for the 2005 Term, based on cert. grants this year, the "October sitting (8 arguments) and November sitting (12 arguments) are both full." This would seem to mean that, unless expedited briefing is scheduled, the earliest that the Supreme Court could hear a Blakely or Booker case is December 2005, and thus we should not expect any clarifying Blakely or Booker decisions until probably at least March 2006.
I have railed in prior posts here and here about the Supreme Court's expenditure of much time and energy on death penalty cases when there are so many post-Blakely and post-Booker questions that are more pressing and of much greater national import. But rather than continue to curse the SCOTUS darkness, let me try to light a certiorari candle by developing an annotated list, roughly in order of importance, of the Blakely/Booker issues that I think most urgently merit the Supreme Court's attention:
1. The validity and scope of the "prior conviction" exception. I spotlighted this issue soon after Blakely (consider this post last August), and the High Court's work in Shepard has only muddied these issues more.
2. The retroactive application of Apprendi, Blakely and Booker. Though nearly all lower courts have ruled against retroactivity (with the exception of the Colorado decision which found Blakely retroactive to Apprendi), retroactivity issues will be litigated over and over and over again in the lower courts until the Supreme Court definitively rules.
3. Booker pipelines issues such as plain error. Unlike retroactivity issues, Booker pipelines issues are producing remarkable circuit splits. But, also unlike retroactivity issues, Booker pipeline issues will eventually fade away even without a definitive Supreme Court ruling. This is why I wonder, as I discussed here and here, if the High Court will consider these issues cert. worthy.
4. Blakely's applicability to restitution and other non-prison sentences. Taken to its logical extreme, Blakely's statement that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" could impact a lot more than sentencing within guideline systems. Most lower courts are limiting Blakely's reach, but these are the same courts that sought (incorrectly) to limit Apprendi before Blakely came along.
I could go on, but I am already exhausted and I have not even mentioned the reconsideration of the Harris rule for mandatory minimums (which many believe cannot stand in the wake of Blakely). Also, whether on direct appeal or through habeas actions, at some point SCOTUS will likely need to consider whether and how Blakely applies to some unique state guidelines systems. And, not to be overlooked, if Congress were to pass a constitutionally questionable Booker fix (such as the proposed HR 1528), a whole new set of constitutional questions in need of urgent resolution could emerge.
May 4, 2005 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, April 26, 2005
SCOTUS debates (in footnotes) Blakely/Booker pipeline issue
Though the two criminal law decisions decided today by the Supreme Court are surely noteworthy for various other reasons (basics here and here), a bit of sparing in the footnotes of Pasquantino v. US about how to handle a Blakely claim has my attention. Here is the final footnote of Justice Thomas' opinion for the majority of the Court, which affirmed the defendants' convictions in Pasquantino:
Petitioners argue in a footnote that their sentences should be vacated in light of Blakely v. Washington, 542 U. S. ___ (2004). Brief for Petitioners 26, n. 29. Petitioners did not raise this claim before the Court of Appeals or in their petition for certiorari. We therefore decline to address it. See, e.g., Lopez v. Davis, 531 U. S. 230, 244, n. 6 (2001) (declining to address "matter . . . not raised or decided below, or presented in the petition for certiorari"); Whitfield v. United States, 543 U. S. ___ (2005) (affirming federal convictions despite the imposition of sentence enhancements, see Brief for Petitioners therein, O. T. 2004, No. 031293, etc., p. 7, n. 6).
Here is the footnote retort on this issue in Justice Ginsburg's dissent:
I note that petitioners' sentences were enhanced on the basis of judicial factfindings, in violation of the Sixth Amendment. See United States v. Booker, 543 U. S. ___, ___ (2005) (STEVENS, J., for the Court) (slip op., at 5-9); see also Blakely v. Washington, 542 U. S. ___ (2004). Despite the Court's affirmance of their convictions, therefore, the petitioners may be entitled to resentencing. See Booker, 543 U. S., at ___, ___ (BREYER, J., for the Court) (slip op., at 25-26). The Court declines to address the defendants' plea for resentencing, stating that "[p]etitioners did not raise this claim before the Court of Appeals or in their petition for certiorari." See ante, at 21, n. 14. This omission was no fault of the defendants, however, as the petition in this case was filed and granted well before the Court decided Blakely. Petitioners thus raised Blakely at the earliest possible point: in their merits briefing. The rule that we do not consider issues not raised in the petition is prudential, not jurisdictional, see Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 32-33 (1993) (per curiam), and a remand on the Blakely-Booker question would neither prejudice the Government nor require this Court to delve into complex issues not passed on below.
I guess we should not be surprised to find that the Supreme Court is split on this "pipeline" issue. Also, these comments provide some interesting tea leaves for lower courts to read concerning (1) how to handle various Blakely-Booker pipeline issues, and (2) whether the Supreme Court may ever grant cert on questions like plain error or other pipeline concerns (prior musing on this issue are here).
April 26, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, April 24, 2005
State of state Blakely fixes and high court rulings
With the recent news of legislative Blakely fixes in Indiana (details here) and Washington (details here), as well as the recent state supreme court work in Tennessee (details here, commentary here and here) and Washington (details here), I thought it might be useful to collect in one spot some of the prior posts in which I have reported on major developments in state legislative Blakely fixes and state high court rulings. So, in alphabetical order, here are some of those prior posts:
STATE LEGISLATIVE BLAKELY FIXES
- Alaska's Blakely fix is now law
- Indiana's brewing Blakely fix
- Maryland's developing Blakely fix
- Tennessee's "official" Blakely fix
- Washington state's Blakely fix
STATE HIGH COURT BLAKELY RULINGS
- The Blakely earthquake hits Arizona
- Blakely not a problem in Idaho
- The Indiana Supreme Court speaks on Blakely!
- Minnesota Supreme Court orders Blakely briefing
- Oregon Supreme Court decides Dilts (and ducks issues)
- Tennessee dodges Blakely, so says divided state supreme court
- Big Blakely doings from where it all started (Washington)
Of course, this lengthy list of prior posts tells only part of the state Blakely story. I know that there have been major Blakely developments in California, Colorado, Ohio, New Mexico, New Jersey and North Carolina, but these developments have not yet, to my knowledge, led to a legislative fix or a state high court ruling. But, on only the 10-month anniversary of Blakely, it is remarkable to see all the impact Blakely has already had in the states.
Friday, April 22, 2005
Morning sentencing stories
Here are just a few of the many sentencing items in the morning papers:
- This article in the Houston Chronicle discussing yesterday's sentencings of two Enron Nigerian barge defendants (discussed here and here) suggests that, because the defendants received "far less than the government requested Thursday, [the result gave] white-collar criminal defense attorneys hope the sentences herald a better day for their clients."
- This article from North Dakota discusses the Eighth Circuit's decision yesterday in a major fraud case (discussed in this post).
- This commentary from Wisconsin about a federal sentencing has the compelling title of "Polite bandit gets a polite sentence."
- This article from Pennsylvania reports on a federal sentence in which the defendant received "more than three years in prison for selling mail-order videotapes of fighting pit bulls."
Thursday, April 14, 2005
Another morning of interesting sentencing news
Just like yesterday, this morning's newspapers brings an array of interesting and important sentencing reports:
- This article from Washington provides a detailed and intriguing report on a "sentencing phase" jury trial convened to find facts to support an aggravated sentence following a defendant's guilty plea to second-degree murder in a child abuse case.
- This article from Utah reports on a Booker remand from the 10th Circuit, and gives particular attention to the defendant's cooperation (which, by the way, was a central feature of all the 8th Circuit's Booker work yesterday detailed here).
- This article from the New York Times about Eric Rudolph's plea deal, which took the death penalty off the table, provides food-for-thought about whether the real benefit derived from the death penalty comes from its impact on plea bargaining. TalkLeft has this interesting post about the Rudolph deal, which includes a lists of infamous defendants that will likely be sharing a federal prison with Rudolph.
Sunday, April 10, 2005
The blossoming sentencing literature
I have often jokingly called Blakely "the case which launched a thousand law review articles," and a recent stop at SSRN has confirmed the blossoming of the sentencing literature in the wake of Blakely. (Of course, this post last month listing many recent sentencing articles also spotlighted that sentencing is now "hot.")
The Columbia Law Review's recent symposium "Sentencing: What's at Stake for the States?" is culminating in a forthcoming issue with a dozen articles that will all be must-reads for academics and others in this field. I have also seen some other recent articles which further enrich and enhance the scholarly dialogue about sentencing reforms. Below I have listed and linked some of the articles recently appearing on SSRN and elsewhere that I have added to my (much-too-long) reading list:
- Federalism and the Politics of Sentencing by Professor Rachel Barkow
- The Failure of the Federal Sentencing Guidelines: A Structural Analysis by Professor Frank O. Bowman, III
- Compromising Liberty: A Structural Critique of the Sentencing Guidelines by Professor Jackie Gardina
- Solving the Williams Puzzle by Professor Kyron Huigens
- Jury Sentencing in Non-Capital Cases: Comparing Severity and Variance with Judicial Sentences in Two States by Professor Nancy J. King and Rosevelt L. Noble
- Matching Decisionmaker to Decision Nature by Professor Paul H. Robinson and Professor Barbara Spellman
- State Sentencing Policy and New Prison Admissions by Ben Trachtenberg
Saturday, April 09, 2005
Booker and Blakely stories shifting to warp speed
After a remarkable March — with major sentencing developments coming from state and federal courts and legislatures (summarized in posts linked here and here and here and here and here) — I was hoping the sentencing world might slow down in April. But, as detailed in my Sunday best? post last weekend, April got off to a flying start. And this past week it seems Booker and Blakely stories have shifted into hyperdrive. Here are just some highlights from this week:
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- Colorado court says Blakely retroactive to Apprendi
- Interesting Blakely development in Michigan
- Fascinating state Blakely rulings
- Arguments over Blakely in California
BOOKER "PLAIN-ERROR" DEVELOPMENTS
- 10th Circuit speaks (and speaks and speaks) on plain error!
- DC Circuit speaks on plain error
- Did Cianci receive special consideration from the 1st Circuit?
BOOKER "REASONABLENESS" DEVELOPMENTS
- 2d Circuit finds (extreme) sentence unreasonable
- 8th Circuit on alternative sentence and reasonableness
- Blockbuster 6th Circuit decision on plain error and reasonableness!
- 7th Circuit, per Easterbrook, discusses reasonableness and restitution
OTHER BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY
- Helpful commentary and analysis on recent circuit action
- Government gets 6th Circuit remand (but still may be unhappy)
- Interesting 7th Circuit remand where Blakely error preserved
- Reviewing the big Booker day in the circuits
- A lot of late day Booker circuit action
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- A pattern of white-collar leniency?
- Shaming, remorse, apologies and victims
- Almendarez-Torres Episode Two? (aka The Revenge of Shepard)
- An array of fascinating death penalty materials
- Jury sentencing and apologies, Texas-style
Tuesday, April 05, 2005
Almendarez-Torres Episode Two? (aka The Revenge of Shepard)
As stressed in a series of posts last month, the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here) was so intriguing in part because the four Justices who kept the Almendarez-Torres "prior conviction exception" just barely alive in Shepard were the four dissenters in Almendarez-Torres. But Justice Thomas, who back in 1998 provided the key fifth vote upholding judicial fact-finding of a prior conviction and thus created what is now the "prior conviction exception" to the Jones-Apprendi rule, asserted in Shepard that Almendarez-Torres "has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and ... in an appropriate case, this Court should consider Almendarez-Torres' continuing viability." (A full explanation of all this is in this post.)
As Lyle Denniston explains in this wonderfully clear report at SCOTUSblog, assistant federal public defender Peter Fleury is now arguing to the Supreme Court that the appropriate case for considering Almendarez-Torres' continuing viability is . . . . . . Almendarez-Torres! As Lyle explains in his post (which covers all the particulars of Supreme Court procedure), "Fleury has asked the Court to reopen the 1998 decision that is the source of that exception: Almendarez-Torres v. United States (decided March 24, 1998, under docket 96-6839)." In Lyle's words: "It may be a long shot, but Fleury deemed it worth a try. The Court may consider the petition later this month."
April 5, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Notable 10th Circuit ruling on prior convictions
Just available on-line today is an interesting decision from the 10th Circuit in US v. Garcia-Rodriguez, No. 04-8047 (10th Cir. Apr. 4, 2005) (available here). The principal sentencing issue in Garcia-Rodriguez concerns the defendant's efforts to challenge the fact that he had two prior convictions, which served in part as the basis for a life sentence. The entire decision is an interesting read with Booker and Shepard elements, but the decision seems most notable for its discussion of the scope of the Almendarez-Torres "prior conviction exception" (basics here).
Here is perhaps the most intriguing paragraph in what is an important decision on various issues relating to the sentencing consideration of prior convictions:
Additionally, this circuit recently concluded that this [prior conviction] exception permits a district court to find facts underlying a prior conviction that are "intimately related" to the whether a prior conviction exists without violating the Sixth Amendment. United States v. Moore, No. 04-8078, __ F.3d __, 2005 WL 668813, at *5 (10th Cir. Mar. 23, 2005) (judge properly made the determination that prior convictions were “violent felonies” subjecting defendant to increased punishment under recidivist statute). [ED. NOTE: Moore is discussed in this post.] The question of whether the defendant is the same person as the one who committed the prior crimes is just such an "intimately related" inquiry. See also United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), cert. denied, __ S. Ct. __, 2005 WL 437775 (2005) (subsidiary finding under recidivist statute that prior offenses were committed on "different occasions" need not have been submitted to a jury); United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (same); United States v. Wilson, 244 F.3d 1208, 1216-17 (10th Cir. 2001) (fact of prior convictions underlying enhancements in 21 U.S.C. § 841(b)(1) need not be made by a jury). No error occurred in this case because this finding of fact need not have been submitted to the jury.
April 5, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Booker and Fanfan Commentary, Booker in the Circuits, Offender Characteristics | Permalink | Comments (0) | TrackBack
Jury sentencing and apologies, Texas-style
This article on the jury sentencing of a defendant for murder from the Texarkana Gazette provides a great reminder that Texas (as well as a few other states) has long had true jury sentencing for certain crimes. As noted in this post nearly a year ago (before Blakely), Professor Nancy King has done ground-breaking work examining non-capital jury sentencing, which she and her co-author right describe as "one of the least understood procedures in contemporary American criminal justice."
In addition, as the newspaper article details, the sentencing involved an (unaccepted) apology from the defendant, who was convicted of murdering a long-time friend during an intoxicated scuffle:
Barfield took the stand during the punishment phase of his trial and expressed sorrow to Burns' family. "I wish I was dead. I'm so sorry this has happened," he testified. Acknowledging he is an alcoholic, Barfield testified that he has been sober since the shooting. "I have not touched a drink since that tragic night and I never will again. I will never touch a gun the rest of my life," he said....
Burns' ex-wife. Donna Burns, addressed Barfield on behalf of the Burns family after the sentence was handed down. She told Barfield he has shown no remorse for the killing. "This has all been about Arnold. You should be ashamed for the position you put your family in. You are the biggest coward in Bowie County," she said....
Burns also told Barfield he will never have her forgiveness for the pain he has caused Burns' son Cody. She told Barfield birthdays and holidays are spent at the cemetery. "Knowing you are in your own private hell is some comfort because you put us in ours," she said.
These passages provide a fascinating case-specific perspective on this week's debate between Professors Richard Bierschbach and Michael O'Hear addressing "Will An Apology Save you From Jail?" taking place at the Legal Affairs' Debate Club. That debate, which I first noted here, is already hashing through a number of important sentencing issues.
Sunday, April 03, 2005
Reconceptualizing sentencing (in draft)
As noted in this post, I had the honor giving the Keynote Address at The University of Chicago Legal Forum's 19th Annual Symposium this past November. The agenda and details of the event, entitled "Punishment and Crime," can still be found here.
In conjunction with that event, I have completed a draft of an article titled "Reconceptualizing Sentencing," which is slated for publication in the next issue of the University of Chicago Legal Forum. Though I had initially planned to write a short article making a few points, I fear my draft is now a long article making a few-too-many-points.
The fine folks at the Legal Forum have now given me permission to post my full draft of "Reconceptualizing Sentencing." It is available for downloading below, and here is the opening:
The transformation of the sentencing enterprise throughout the United States over the past three decades has been remarkable. The field of sentencing, once rightly accused of being "lawless," is now replete with law. Legislatures and sentencing commissions have replaced the discretionary indeterminate sentencing systems that had been dominant for nearly a century with an array of structured or guideline systems to govern sentencing decisionmaking. These modern sentencing developments constitute one of the most dynamic and important law reform stories in recent American legal history — a veritable sentencing revolution.
And yet the modern sentencing era has been marked by a failure to reconceptualize modern sentencing. The new sentencing laws, the Supreme Court's sentencing jurisprudence, and even the scholarly literature in the field, are all conceptually underdeveloped. The basic story of the sentencing revolution, especially in the federal system, has been frequently recounted, but the theories, structures and procedures of modern sentencing decisionmaking have not been deeply examined.
Against this backdrop, it is not all that surprising that the Supreme Court's blockbuster rulings in Blakely v. Washington and United States v. Booker have generated puzzled reactions and some impassioned criticisms, even though the decisions reflect certain fundamentally sound conceptual principles. The drama that has surrounded the Blakely and Booker decisions — and their aftermath — ultimately reflects a collective failure to reconceptualize sentencing in the wake of the sentencing revolution. It also makes more urgent the task of reconceptualizing modern sentencing.
April 3, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, March 28, 2005
SCOTUS grants cert. in a capital case and has still more GVRs
As detailed in this post from SCOTUSblog, the Supreme Court this morning granted cert. in a capital case from California which concerns, inter alia, consideration of harmless error review, and the Court also issued another two dozen Booker-inspired GVRs. All the details on today's SCOTUS work can be found at the order list at this link, and details about the 500+ prior SCOTUS GVRs can be found at this post.
Thursday, March 24, 2005
Ralph Blakely sentenced again
As this news account details, Ralph Howard Blakely was sentenced in Washington State Court Tuesday to 35 years' imprisonment following his conviction earlier this month "on two counts of criminal solicitation of first-degree murder for attempting to hire fellow inmate Robbie Juarez to kill his ex-wife Yolanda Blakely and daughter Lorene Blakely." I believe this sentence was imposed by the same state judge that had sentenced Blakely for his prior crime in a way the Supreme Court ultimately deemed unconstitutional. I trust that this latest sentence for Mr. Blakely was imposed in a Blakely-proper manner.
Tuesday, March 22, 2005
Pondering the state Blakely pipeline
Picking up on my post here about all the Booker-inspired GVRs, Michael Ausbrook at INCourts notes here that he can only find one Blakely-inspired GVR (the Dilts case from Oregon). That interesting discovery has me thinking more broadly about the pace and pattern of sentencing litigation in the state courts and about when and how the Supreme Court will consider state Blakely issues on the merits .
First, it is interesting that, nearly nine months since Blakely, less than half of the states struggling with major Blakely issues have had their state supreme courts weigh in. My own notes show major Blakely rulings from state supreme courts only in Arizona (Brown), Indiana (Smylie), Minnesota (Shattuck), and Oregon (Dilts), and these rulings often punted as many issues as they resolved. Meanwhile, we are still awaiting serious high court Blakely input in California, Colorado, New Jersey, New Mexico, North Carolina, Ohio and Tennessee.
Second, it bears noting that there are some broad and common Blakely issues of concern to many states (e.g., Blakely's applicability to consecutive sentencing), and a number of narrow and unique Blakely issues of concern only to particular states (e.g., Blakely's applicability to Ohio's "worst form of the offense" enhancement). Also, there are a range of Blakely remedy/pipeline issues that implicate constitutional provisions like double jeopardy and due process. Whether, when and how the Supreme Court will take up these "second-generation" Blakely issues from the states should be an interesting story for many years to come.
Saturday, March 19, 2005
Lots of Blakely and Booker stories in the papers
Though I a still catching my breath from another big sentencing week, my ugly bracket has me focused on work rather than basketball this morning. And I have found a number of interesting Blakely and Booker stories in the papers:
- This article from the Gary Post Tribune explains why the Indiana Supreme Court's Smylie decision (basics here, commentary here and here and here), which applied Blakely to Indiana's sentencing scheme, "has judges, prosecutors and defense lawyers scratching their heads."
- This article from the Billings Gazette provides background on Booker and details how the post-Booker world is playing out in Montana.
- There interesting coverage of former Connecticut Governor Rowland's sentence (basics here) to be found in stories from the New York Times and the Hartford Courant. And the blog Kirby's Reports has a lot more information and links on the Rowland story.
- The papers have a lot of basic coverage of the Second Circuit's remand of Martha Stewart's case for resentencing (see here and here), though the stories do not clearly explain whether Second Circuit ordered resentencing or just gave Judge Cedarbaum discretion to consider resentencing (and I cannot find the Second Circuit's order on line).
Tuesday, March 08, 2005
If you’re gonna do it, do it right — right?
I jokingly call Blakely the case that launched a thousand law review articles, and I have a new one to spotlight (on the heels of the numerous articles noted here). J.J. Prescott and Sonja Starr have an interesting piece entitled "Improving Criminal Jury Decision-Making After the Blakely Revolution," which to proposes a model for sentencing-stage jury proceedings that would foster improved decision-making by juries. An abstract and the full paper can be accessed here.
As detailed in their abstract, Prescott and Starr suggest that effective jury decision-making post-Blakely calls for "bifurcation of proceedings, partial application of the rules of evidence, formulation of special verdict forms in certain specific ways that will minimize framing effects, structural simplification of sentencing tasks, a more active jury, and guidance for jurors on bias-reducing deliberation structures." The issues and concerns spotlighted in this paper will become even more pressing if, as Shepard hints (summary here, questions here), juries may some day have to consider prior conviction facts as well as offense facts that can enhance sentences.
In the immortal words of Wham!, "If you're gonna do it, do it right — right?"
Monday, March 07, 2005
Summarizing Shepard (and seeking state insights)
The Supreme Court's opaque work today in Shepard v. US (basics here) is hard to fully comprehend (consider this comment). Consequently, let me spotlight again the basic summary of the case here from the SCOTUSblog and summarize below my recent Shepard posts:
- The Shepard scramble discusses the Court's opinion and seeks to explain its significance concerning the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule.
- Just when you thought it was safe discusses Justice Thomas' concurrence in Shepard which calls for the elimination of the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule.
- O'Connor's Apprendi laments discusses Justice O'Connor's dissent in in Shepard which complains about the prospect of extending the Apprendi rule "into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed."
I am making such a big deal over Shepard and the possible demise of the Almendarez-Torres "prior conviction exception" in part because many states — including many without guideline structures — have sentencing laws (such as three-strikes laws) that rely on judges finding prior conviction facts. In the wake of Booker and its "advisory dodge," the Almendarez-Torres "prior conviction exception" may seem like a very minor issue for the federal system. But because every state, I believe, has some sort of mandatory recidivist or three-strikes law, the overall impact of the demise of the Almendarez-Torres could be, dare I say, perhaps even greater than Blakely.
Of course, if the Harris mandatory minimum exception to the Jones-Apprendi-Blakely rule remains standing (a big IF), some judicial fact-finding at sentencing will still be permissible even if (when?) the Almendarez-Torres "prior conviction exception" is eliminated. But my own sense of state sentence laws is that the demise of the Almendarez-Torres could be hugely important. But I may lack any real perspective, and thus I would be grateful if those folks most familiar with state sentencing systems might use the comments to explain the possible impact if the Almendarez-Torres "prior conviction exception" was formally eliminated.
UPDATE: Jonathan Soglin at Criminal Appeal here contributes a number of important insights about Shepard and also details its likely immediate impact on People v. McGee, no. S123474, a California Supreme Court case concerning the applications of California's Three Strikes Law.
March 7, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack
Sunday, March 06, 2005
Handling Blakely/Booker habeas headaches
In this post, I noted the judiciary's Booker-inspired request for $91.3 million in supplemental funding for the current fiscal year, and spotlighted how in this memo the Judicial Conference details its views of the cost impact of Booker. Though there are many notable features of the memo, I found especially intriguing this estimate of number of possible federal habeas actions in the wake of Booker:
It is estimated that 12,000 to 18,000 new filings could be lodged under 28 U.S.C. § 2255, attacking an original sentence and asking the district court which imposed the sentence to vacate, set aside, or correct the sentence. These filing estimates are based on the Bureau of Prisons population, reduced for the inmates who already received reduced sentences under 5K1.1 (substantial assistance departure), inmates with less than six months to serve, and inmates who received no enhancements.
If the 12,000 to 18,000 estimate is supposed to quantify the number of inmates who might seek habeas relief, this number seems quite low. There are roughly 180,000 persons in federal prison and perhaps, I would guess, another 100,000 on probation or supervised release. And even federal convicts who received a 5K1.1 departure, or have less than six months to serve, or received no enhancements based on judicial fact-finding may have a sound legal reason to try to take advantage of the Booker to reduce the time they are subject to federal supervision. That said, it is also possible, especially if the circuits continue to hold that Booker is not retroactive (as did the Seventh in McReynolds and the Sixth in Humphress), that a much smaller universe of prisoners will actually file federal habeas actions.
Of course, none of this head-counting considers the (potentially much larger) universe of state defendants who are serving sentences rendered constitutionally problematic by Blakely who may file federal habeas actions if/when they do not get relief from state courts. As detailed here and here, for example, the Hawaiian state and federal courts are now in a habeas tussle over Apprendi's applicability to Hawaii's sentencing laws.
Habeas doctrines and numbers aside, a serious commitment to Constitutional principles suggests, as I have argued here and here and here, that all three branches (and not just courts) should be concerned about the potential injustice to certain defendants who, sentenced in a manner now deemed unconstitutional, may be serving longer sentences than they legally should. I continue to think, as suggested long ago in this post, that justice would be served by developing some sort of administrative mechanism for sorting, and considering remedies for, constitutionally problematic sentences that are now final (and perhaps barring the habeas courthouse door to prisoners until they seek relief through such an administrative mechanism).
Wednesday, March 02, 2005
More Roper thoughts and the development of state constitutional law
Not surprisingly, the blogsphere continues to buzz about the Supreme Court's decision in Roper yesterday (early blog buzz is linked here, my early comments are linked here). Will Baude here at Crestcat Sententia shares some thoughts and also has links to the thoughts of many others. I was particularly intrigued by Orin Kerr's "evolving standards of decency" analysis here and Eugene Volokh's state constitutional law insights here and here over at The Volokh Conspiracy.
I especially want to run with the state constitutional law idea because, in my view, it has been insufficiently discussed and litigated in the arena of criminal sentencing. Interestingly, in the search and seizure context, states have often interpreted state constitutional provisions to provide broader protection to individuals than the Fourth Amendment provides, see generally Marc Miller & Ronald Wright, Criminal Procedures (2d ed 2003), sometimes because the language of the comparable state constitutional provision is broader, see generally Hawaii Const. Art. I, sec. 7 (safeguarding the right to be secure against "invasions of privacy").
But I have not seen too many interpretations of state constitutional provisions which provides a broader reading of, say, Eighth Amendment-type provisions as possible limits on non-capital criminal sentences. Notably, more than a few states (including Texas) have a state constitution prohibition on "cruel OR unusual punishments" even though the federal constitution only bans "cruel AND unusual punishments." But, unfortunately, despite severely long sentences in many states, we have not often seen state courts willing to develop a robust jurisprudence concerning the plausibly distinct protections provided by distinct state constitution prohibitions.
These issues seem especially ripe for development in the wake of Blakely and the mess the Supreme Court is making of the federal constitution's jury trial right. Notably, some state constitutions (including Ohio's) provide that the right to trial by jury "shall be inviolate;" it strikes me that exceptions to the federal jury trial right created by Harris (for mandatory minimum judicial fact-finding) and Almendarez-Torres (for prior conviction judicial fact-finding) might be subject to challenge under such state constitutional provisions.
I have seen brief mention of state constitutional claims in only one or two post-Blakely decisions, and I wonder if lawyers are even thinking to raise such claims on a regular basis as the Blakely fall-out gets litigated in the states. Readers are highly encouraged to leave comments or send me e-mails with any notable past or present developments relating to sentencing and state constitutional law.
UPDATE: Ken Lammers from CrimLaw discussed state constitutional law and litigation realities here, and Jeralyn Merritt from TalkLeft was kind enough to provide this link with all the state constitutions.
March 2, 2005 in Blakely Commentary and News, Blakely in the States, Death Penalty Reforms, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Notable 5th Circuit Booker dodge and criminal history decision
A few weeks ago I noted here the surprising Booker silence from the Fifth Circuit. Every other circuit with the exception of the DC Circuit has now addressed various Booker issues — many in grand ways; but now, a full seven weeks after Booker, we still have not gotten any Booker wisdom from a circuit that typically resolves nearly 70 sentencing appeals each month. I cannot help but speculate that significant internal debates within the Fifth Circuit is keeping it from addressing Booker issues in the many appeals that are now stacking up.
Notably, the Fifth Circuit did resolve a sentencing appeal yesterday in US v. Montgomery, No. 03-11131 (5th Cir. Mar. 1, 2005)(available here), but did so in a way that allowed it to avoid addressing Booker issues. The defendant in Montgomery contested a sentencing enhancement based on being classified as an armed career criminal, which in turn was based on the district court's judgment that Montgomery had three prior "violent felonies." The Fifth Circuit remanded for resentencing by concluding that Montgomery's "prior conviction under a Texas retaliation statute does not qualify as a violent felony." And, explained the Fifth Circuit, "[i]n light of this conclusion, we need not address the impact of the Supreme Court's recent Booker decision on Appellant's alternative argument that the sentence enhancement violated his Sixth Amendment rights."
Among the interesting aspects of this Montgomery disposition is that the Supreme Court is likely soon to decide the Shepard case, which will address in another context how to interpret and apply Armed Career Criminal Act's sentencing enhancements. Thus, delaying a decision in Montgomery might have been justified (though not essential) in light of an expected Supreme Court decision. The same cannot be said for delaying a decision on Booker issues.
Tuesday, February 08, 2005
Booker wisdom for the states from the Vera Institute
The Vera Institute of Justice — which has been at the forefront of state sentencing reform through its State Sentencing and Corrections Program (SSC) — was at the forefront of covering the impact of Blakely in the states through its publications entitled "Aggravated Sentencing: Blakely v. Washington — Practical Implications for State Systems" (discussed and linked here) and "Aggravated Sentencing: Blakely v. Washington — Legal Considerations for State Systems" (discussed and linked here).
Achieving a state trifecta, the Vera Institute now has produced "Beyond Blakely: Implications of the Booker Decision for State Sentencing Systems." Authored by Jon Wool, this terrific state-focused account of Booker can be accessed here. These opening paragraphs provide a fitting overview:
The Supreme Court's recent decision in United States v. Booker has transformed sentencing for federal judges, prosecutors, and defense attorneys. But what guidance does it offer state policymakers and practitioners? The short answer: not much.
The Booker decision addresses only a few of the many questions raised by the Court's earlier ruling in Blakely v. Washington, which directly and dramatically affected the sentencing systems in a number of states. For those in the states who are struggling with these questions, Booker's 118 pages and six opinions offer little clarity. Nonetheless, the Booker decision sheds some light on the Blakely rule and sharpens its implications for certain states' structured sentencing systems.
February 8, 2005 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack
Sunday, February 06, 2005
Ex post facto headaches from any legislative response to Booker
Who can resist blogging during the Super Bowl halftime (with Paul McCartney in the background and no wardrobe malfunctions in sight)? In honor of Super Booker Sunday, I can now finish up a post I started this morning about ex post football, ... err, I mean ex post facto.
In my testimony in November to the US Sentencing Commission, I expressed concern that any legislative response to Booker "risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices." At the time, and still today, my concerns center around ex post facto litigation headaches if "the Bowman fix" (aka topless guidelines) is enacted and seeks to be immediately applied as a response to Booker.
After speaking to many smart folks about the ex post facto implications of the Bowman fix, I concluded that no one is really sure how to tackle the issue. Consequently, I asked my smart research assistant to do a memo for me on the topic. Proving how smart I am to hire such smart help, my RA's memo, which can be downloaded below, does a masterful job sorting through these issues. In addition to spotlighting many key ex post facto issues, the memo serves as an important reminder that any effort to apply a post-Booker legislative fix immediately risks producing another wave of confusing litigation.