Tuesday, September 09, 2014
Split Third Circuit panel concludes Allenye error can be harmless
Sixth Amendment fans will want to find the time to check out the Third Circuit's notable opinion today in US v. Lewis, No. 10-2931 (3d Cir. Sept. 9, 2014) (available here). The start of the majority opinion (per Judge Fisher) in Lewis suggest there is not too much of note in the case:
This case requires us to determine the applicable standard of review for situations where a district court has imposed a mandatory minimum sentence based upon facts that were never charged in the indictment or found by a jury beyond a reasonable doubt. Such errors occur when a sentence is imposed in violation of the rule recently set forth in Alleyne v. United States, 133 S. Ct. 2151 (2013). Appellant Jermel Lewis challenges his sentence and contends that the failure of the indictment to charge an Alleyne element, combined with Alleyne error in jury instructions and at sentencing, is structural error. We hold that Alleyne error of the sort alleged here is not structural and is instead subject to harmless or plain error analysis under Federal Rule of Criminal Procedure 52. We conclude that the District Court’s error in Lewis’s case was harmless and will therefore affirm.
But the end of of the dissenting opinion (per Judge Rendell) in Lewis suggests there is a lot more to the matter:
Over a decade ago in Vazquez, I noted that the logic in that decision would mean that the “government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under [plain error review] and require resentencing in accordance with the jury’s verdict.” 271 F.3d at 130 (Rendell, J. dissenting). Today the majority goes beyond even that dire prediction as it upholds a sentence for a crime different from that of conviction, under de novo review. Under the majority’s reasoning, and contrary to Alleyne, a district court may now sentence a defendant pursuant to an improper mandatory minimum, in violation of the Sixth Amendment, and we would be obligated to uphold the sentence if we, an appellate court, find the evidence at trial to have been sufficient. In short, today’s decision strikes at the very heart of the jury trial and grand jury protections afforded by the Constitution.
But perhaps I am wrong. Perhaps we live in a brave new world where judges may determine what crimes a defendant has committed without regard to his indictment or jury verdict, and sentence him accordingly. Or maybe Alleyne does not really mean what it says, when it proclaims brandishing and carrying offenses to be separate and distinct crimes, and that a defendant is entitled to be sentenced consistent with the jury’s findings. But I take the Supreme Court at its word. Until clearly instructed otherwise, I maintain that different crimes are just that, and district court judges cannot sentence a defendant to an uncharged crime simply because the evidence fits, nor can an appellate panel affirm such a sentence because they find that the evidence fits. I adhere to the principle that both appellate and trial judges are required by the Constitution to respect, and sentence according to, a valid jury verdict, and on this basis I respectfully dissent.
September 9, 2014 in Blakely in Appellate Courts, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Recuenco and review of Blakely error, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, February 05, 2014
First Circuit rejects feds request for remand for a sentencing jury make finding to trigger mandatory term
Both Sixth Amendment fans and sentencing fans are going to want to check out a fascinating decision by the First Circuit today in US v. Herrerra Pena, No. 12-2289 (1st Cir. Feb. 5, 2014) (available here). The start of the opinion makes clear why:
In federal prosecutions, under the requirements of Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013), if the distribution of drugs is proven beyond a reasonable doubt to a jury to have resulted in a death, a defendant will face a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b). But if the government does not meet that burden before conviction, a defendant will face a different mandatory minimum -- either 10 years, 5 years, or no minimum, depending on the drug type and quantity. See 21 U.S.C. § 841(b)(1)(A), (B), (C). When, as here, there is Alleyne error resulting in the imposition of a mandatory minimum sentence based on judicial findings on a lesser standard of proof, the circuit courts usually have merely remanded for resentencing by the district courts.
The prosecution here asks us to depart from that usual practice. We are asked, after an Alleyne error and following a conviction based on a straight guilty plea to drug dealing but not to "death resulting," to permit the prosecution on remand to empanel a sentencing jury to allow the government to now prove beyond a reasonable doubt that a death resulted from the defendant's drug dealing. Because Alleyne was decided after sentencing and while the case was on appeal, the situation in this case will not frequently occur. We hold that the government's proposed course of action is foreclosed on the facts of this case, is unfair, and would raise troubling constitutional questions that can be avoided by denying the government's request.
Thursday, March 28, 2013
Sixth Circuit panel grants habeas relief to Tennessee defendant sentenced in violation of BlakelySadly, I no longer get ample opportunities to blog about Blakely Sixth Amendment sentencing issue these days -- though I suppose this could change if (and when?) the Supreme Court give these issues a new boost via a big ruling in Alleyne in the near future. Joyfully, this morning brings a little Blakely-era nostalgia via the Sixth Circuit's habeas grant in Lovins v. Parker, No. 11-5545 (6th Cir. Mar. 28, 2013) (available here). This extended decision gets started this way:
After a Tennessee state court jury convicted petitioner Derry Lovins of second-degree murder, the state trial court judge made additional factual findings and enhanced Lovins’s sentence from twenty to twenty-three years based on those findings. In this petition for a writ of habeas corpus under 28 U.S.C. § 2254, Lovins raises various claims of trial error and argues that the threeyear sentence enhancement was unconstitutional under the rule of Blakely v. Washington, 542 U.S. 296 (2004), because the sentence was enhanced based on facts that were not found by a jury. The history of Lovins’s requests for relief in state court is byzantine, but the legal principles are not. Lovins’s direct appeal was not final until almost three years after the Blakely decision, and therefore Blakely applies to his case under the clearly-established retroactivity rules of Griffith v. Kentucky, 479 U.S. 314 (1987), and Teague v. Lane, 489 U.S. 288 (1989). For this reason, and because the procedural default doctrine does not bar our review of the merits of Lovins’s Blakely claim, we REVERSE the district court’s denial of relief, and we conditionally GRANT a writ of habeas corpus on the Blakely sentencing claim only. We AFFIRM the district court’s denial of relief on all of Lovins’s other claims.
March 28, 2013 in Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Thursday, September 01, 2011
Different results as Eighth and Ninth Circuits consider different Apprendi claims
In recent years, juicy cases raising Sixth Amendment Apprendi cases seem (too?) infrequent. But today, both the Eighth Circuit and the Ninth Circuit handed down decisions involving Apprendi issues. as the opening paragraphs reprinted below review (and as might be predicted by those knowing the Circuits' tendencies), the defendant in the Eighth Circuit lost and the defendant in the Ninth Circuit prevailed.
US v. Brown, No. 10-2747 (8th Cir. Sept. 1, 2011) (available here), gets started this way:
On Easter Sunday evening, fourteen-year-old Justin Timbear May (Timbear) was stabbed to death outside a home on the Red Lake Indian Reservation in northern Minnesota. A short time later, two other boys, FJW and CJH, were stabbed outside a nearby home. After a four-day trial, a jury convicted Patricia Brown of second-degree murder for the stabbing of Timbear, and of assault with a dangerous weapon for the stabbing of FJW, in Indian country. See 18 U.S.C. §§ 113(a)(3), 1111, 1153. The jury acquitted Brown of assaulting CJH. The district court imposed concurrent sentences of thirty years for the murder and ten years for the assault with a dangerous weapon. Brown appeals, arguing the court erred in imposing mandatory minimum sentences under 18 U.S.C. § 3559(f) because age is an element of the offense that must be found by the jury, and in denying her motions to suppress evidence and to sever counts of the indictment for trial. We affirm.
US v. Hunt, No. 09-30334 (9th Cir. Sept. 1, 2011) (available here), gets started this way:
The district court sentenced Appellant Stacy Hunt to 180 months in prison after he pled guilty to attempting to possess a controlled substance with the intent to distribute in violation of 21 U.S.C. §§ 841(a), 846. Hunt appeals his sentence but not his conviction. He alleges that the district court erred under Apprendi v. New Jersey, 530 U.S. 466 (2000), by sentencing him for attempted possession with intent to distribute an unspecified amount of cocaine even though he never admitted that he attempted to possess cocaine. We conclude that the district court erred under Apprendi and that the error was not harmless. Accordingly, we reverse and remand for resentencing.
Wednesday, December 22, 2010
First Circuit uses Ice to cool claim that Apprendi applies to fine fact-findings
Hard-core fans (or should I say foes) of the Sixth Amendment jurisprudence of Apprendi get a little holiday present from a panel of the First Circuit today in US v. Southern Union Company, No. 09-2403 (1st Cir. Dec. 22, 2010) (available here), wherein the court addresses "whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines." Here is part of the panel's extended discussion of this issue:
Southern Union argues that the question of whether Apprendi applies is resolved by the plain language of the Supreme Court's opinion in that case, which states that the rule covers "any fact that increases the penalty for a crime" beyond the statutory maximum. Apprendi, 530 U.S. at 490 (emphasis added). If Apprendi applies only to facts increasing terms of incarceration, and not to criminal fines, Southern Union argues, the Court's use of the broad word "penalty" becomes superfluous, and corporations, which cannot be incarcerated, are left outside Apprendi's protection....
The prosecution argues that both the reasoning and the express language in Oregon v. Ice, 129 S. Ct. 711 (2010), mean that Apprendi does not apply to criminal fines, which have historically been within the discretion of judges, and not assigned to juries for determination....
The prosecution argues that we should follow not only the method of historical analysis endorsed by Ice but also the opinion's express language about criminal fines. The Court made an express statement in Ice, albeit in dicta, that it is inappropriate to extend Apprendi to criminal fines. Observing that many states permit judicial factfinding on matters "other than the length of incarceration," the Court explained that "[t]rial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution." Id. at 719. The Court warned that applying Apprendi to these types of determinations "surely would cut the rule loose from its moorings."...
Even assuming fines are similar to sentences of incarceration, this argument misses the point of the analogy and the flow of the logic used by the Ice majority. The historical record presented in Ice showed that at common law, judges chose within their unfettered discretion whether to impose consecutive or concurrent sentences, and consecutive sentences were the default rule. Ice, 129 S. Ct. at 717. The prosecution here presents strong evidence of historic practice that at common law, judges' discretion in imposing fines was largely unfettered. The Court in Ice specifically cautioned that it would be senseless to use Apprendi to nullify sentencing schemes in which legislatures have curtailed the discretion judges had at common law....
To the extent that excluding criminal fines from Apprendi requires a more restrained view of the rule's scope than did the Court's previous Apprendi-line decisions, it is the Supreme Court in Ice that has imposed the restraint.
Wednesday, December 08, 2010
A Harris test case?: Seventh Circuit affirms extraordinary sentencing factor enhancement
Among the many "quirks" in the modern Apprendi/Blakely Sixth Amendment jurisprudence from the Supreme Court is the Harris mandatory minimum exception to the rule requiring jury findings of important sentence-enhancing facts. This "quirk" in on full display in the Seventh Circuit's fascinating ruling today in US v. Krieger, No. 09-1333 (7th Cir. Dec. 7, 2010) (available here), in which a panel affirms a 20-year mandatory minimum sentence based on judicial fact-finding about the defendant's drug crime resulting in a friend's death.
The panel decision in Krieger has too many interesting and notable facets to summarize in one post. So I will just quote from one part of the opinion which spotlights why this is a possible test case for the Supreme Court to perhaps reconsider the logic and persistence of Harris:
Krieger’s pre-sentencing report set forth a recommended sentencing range of ten to sixteen months. The government filed objections, arguing that the court should find that Curry’s death resulted from Krieger’s distribution of fentanyl, thus triggering a mandatory minimum sentence of twenty years under 21 U.S.C. § 841(b)(1)(C)....
On January 16, 2009, the district court issued its order, finding, by a preponderance of the evidence, that the fentanyl supplied by Krieger resulted in the death of Curry.... In view of the conflicting evidence as to the cause of Curry’s death, the court concluded that the government would not have been able to prove, beyond a reasonable doubt, that Krieger’s distribution of fentanyl was the cause of Curry’s death, had Krieger been charged with that offense. The court was persuaded, however, that a preponderance of the evidence established fentanyl as the cause of Curry’s death, and concluded that “the Government has established that it is more probable than not that Ms. Krieger’s distribution of fentanyl to Ms. Curry resulted in Ms. Curry’s death.” (R. at 154, p.8).
Once the court made the finding, by a preponderance of the evidence, that death resulted, it concluded that it was obligated to impose the mandatory statutory minimum under § 841(b)(1)(C) “if death results” — twenty years....
The outcome in this case highlights the critical nature of the distinction between sentencing factors and elements. In this case, without death resulting, the maximum penalty for distributing small amounts of fentanyl would have been twenty years, with no minimum penalty. 21 U.S.C. § 841 (b)(1)(C) (“In the case of a controlled substance in schedule I or II . . . such person shall be sentenced to a term of imprisonment of not more than 20 years.”). In cases where death results from the distribution, the sentence increases to a minimum of twenty years and a maximum of life in prison. Id. Once a court makes a finding that triggers a mandatory minimum sentence, it has no choice but to impose that sentence.
Thursday, March 25, 2010
Sixth Circuit affirms habeas relief finding Ohio sentencing scheme Blakely problematicThe Sixth Circuit has an interesting little opinion today in a habeas case coming from the Ohio state courts involving a Blakely challange to an enhanced sentence. The ruling in Villagarcia v. Warden, Noble Correctional Inst., No. 07-3619 (6th Cir. Mar. 25, 2010) (available here), is not especially surprising in light of what is noted in a key footnote of the opinion:
We observe that the instant case presents the unusual fact situation wherein the Ohio Supreme Court has itself concluded that the analysis employed by the Ohio Court of Appeals in rejecting Villagarcia’s claim is contrary to and demonstrates a misunderstanding of Blakely. The Ohio Supreme Court observed that the “Supreme Court of the United States has repeated its holding that ‘[if] a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact – no matter how the State labels it – must be found by a jury beyond a reasonable doubt.’” Foster, 845 N.E.2d at 489 (quoting Ring v. Arizona, 536 U.S. 584, 602 (2002), citing Apprendi, 530 U.S. at 482-83) (emphasis in original).
The Villagarcia opinion also includes an extended discussion of harmless error review in this sentencing context.
Wednesday, December 16, 2009
Notable and insightful Blakely habeas ruling from the Sixth CircuitThe Sixth Circuit has an effective little panel decision today in a habeas case concerning the application of Blakely to Ohio sentencing law. The ruling in Arias v. Hudson, No. 08-4513 (6th Cir. Dec. 16, 2009) (available here), has many notable aspects, and here is how the opinion starts and concludes:
The warden appeals an order conditionally granting habeas corpus to Manuel Arias on the ground that his sentence violates Blakely v. Washington, 542 U.S. 296 (2004). Arias’s sentence does not violate Blakely, however, because the judicial fact-finding at issue merely increased his minimum sentence. We accordingly reverse.
The continuing vitality of McMillan and Harris may be put to the test in a pending case at the Supreme Court. See United States v. O’Brien, ___ U.S. ____, 130 S. Ct. 49 (2009) (granting certiorari in a case involving fact-finding that increased a defendant’s minimum sentence). The case could be decided by overruling McMillan and Harris, but it also could be decided on statutory grounds, as the First Circuit decided the case below. See United States v. O’Brien, 542 F.3d 921, 924 (1st Cir. 2008). Regardless of what happens in O’Brien, however, this Sixth Amendment reality remains: At the time the judge imposed Arias’s sentence, the Supreme Court treated judicial fact-finding differently depending on whether it affected the minimum sentence faced by a defendant or the maximum sentence for which the defendant was eligible. Because the courts have not treated Blakely or United States v. Booker, 543 U.S. 220 (2005), as changes in law that should be applied retroactively to cases whose direct appeal concluded before their announcement, we see little prospect that the courts will apply any such (potential) change in the law retroactively to Arias. Cf., e.g., Duncan v. United States, 552 F.3d 442, 447 (6th Cir. 2009) (holding that Booker does not apply retroactively to cases pending at the time of Blakely).
In the last analysis: McMillan and Harris were good law at the time of Arias’s sentencing, and they remain so today; the two decisions allow judicial fact-finding that increases a defendant’s minimum sentence; Arias waived his right to have the jury make any findings of fact that might increase his maximum sentence; and an increase in the minimum term of this sentence is governed by Harris. All of this leaves Arias with no cognizable basis for challenging his sentence.
I am very pleased to see this panel opinion give voice to the possibility that the vitality of McMillan and Harris may be at issue int he upcoming O’Brien case. This ruling in Arias also provides a useful and important reminder that defendants whose case may turn in some way on the vitality of McMillan and Harris ought to be extra sure to be preserving (and prolonging?) this issue in their cases.
(On an somewhat unrelated front, the Sixth Circuit today also released this order in an immigration case which includes a dissent that has, among other flourishes, these two amusing footnotes: "Seriously, a Turkish prison" and "With a tip of the hat to M. Colbert of The Colbert Report".)
Wednesday, January 04, 2006
Extended 11th Circuit discussion of prior conviction exception
Today the Eleventh Circuit in US v. Gibson, No. 04-14776 (11th Cir. Jan. 4, 2005) (available here), issued a long opinion, per Judge Tjoflat, primarily discussing (1) the application of the "prior conviction" exception to the Apprendi-Blakely rule, and (2) departures from the career offender guidelines. Here is a portion of the opinion's opening paragraph:
The district court concluded that under Blakely v. Washington, 542 U.S. 296 (2004), it could not classify Gibson as a career offender because the Government did not prove to a jury the nature of Gibson's prior convictions (i.e., that those prior convictions were felonies involving controlled substances) or the fact that Gibson was at least 18 years old at the time he committed the offense in this case. We conclude that the Supreme Court's decision in Blakely, and its subsequent decision in United States v. Booker, 543 U.S. 220 (2005), did not prevent the district court from considering Gibson's prior convictions, determining his age at the time he committed the instant offense, and designating him a career offender.
A quick skim of the Gibson opinion suggests that there are no dramatic new declarations in its 42 pages. Nevertheless, the Gibson opinion provides a very clear and useful review of the state of the law in the 11th Circuit. Also, recalling the Ninth Circuit's recent emphasis in Kortgaard that the "prior conviction" exception is "narrow" and the Seventh Circuit's recent assertions that Booker rendered obsolete the concept of departures, the Gibson opinion reminded me how differently the different circuit have been reconstructing the post-Booker world.
January 4, 2006 in Almendarez-Torres and the prior conviction exception, Blakely in Appellate Courts, Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack
Tuesday, October 18, 2005
Briefing on Blakely's applicability to restitution and forfeiture
As detailed in this post, last month the Third Circuit sua sponte voted to rehear en banc three appeals in which the issue is whether Blakely and Booker applies to orders of restitution and forfeiture. A helpful reader has alerted me that the Third Circuit oral argument in these cases is slated for the morning of Tuesday, November 1, at 9:30am, and he has also kindly forwarded to me all the briefs filed as part of the en banc proceeding. These briefs make for interesting reading, and I have provided them for downloading below.
- Download govt_en_banc.pdf
- Download en_banc_amicus.pdf
- Download FPD-EnBancSuppBrief.pdf
- Download another_en_banc_supp_brief.pdf
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
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
Tuesday, January 18, 2005
The critical, and still confusing, "prior conviction" exception
I have written in many (pre-Booker) posts about the critical importance — and critical uncertainty — of the "prior conviction" exception to Apprendi/Blakely. For background, here are just a few of my major prior posts on this subject:
- The "prior conviction" exception to Blakely
- The next big Blakely issue: the prior conviction exception
- Juvenile convictions and the "prior conviction" exception
- Fascinating "prior conviction" case from Indiana
- See also the offense/offender distinction I champion in my Conceptualizing Blakely article.
Importantly, though the Booker merits majority did not speak directly to the issue, it did continue to articulate the "prior conviction" exception when stating (and reaffirming) the Apprendi/Blakely rule. Moreover, as detailed here, a case still pending before the Supreme Court, Shepard v. US, could allow the Court to address the "prior conviction" exception directly. But, after so many issues went unaddressed (or were poorly addressed) in Booker, I am not holding my breath that Shepard will shine a beacon of light to clarify the darkness that now surrounds the "prior conviction" exception.
Though the advisory guidelines remedy in Booker might suggest this issue is now less important, everyone should appreciate that (1) state courts continue to divide wildly on the application of the "prior conviction" exception when defendants make Blakely claims, and (2) it would be very difficult for Congress to build a new sentencing system without clarification of the viability and scope of this exception. (Recall that Justice Thomas in Apprendi suggested that he regreted his vote in the 5-4 decision that created this exception.)
Moreover, as documented in part by the DC Circuit's decision dated today in US v. Miller, 2005 U.S. App. LEXIS 862 (DC Cir. Jan. 18, 2005), these criminal history issues can get remarkably intricate even in seemingly simple settings. (Notably, though Miller was released and is dated Jan. 18, 2005, the DC Circuit's decision affirming the defendant's guideline sentence only discusses Booker as a "pending" case. The Miller ruling, then, is not just a day late and a Booker short, it is a full week late and a Booker short.)
January 18, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack
Friday, January 14, 2005
A day late and a Booker short
The Eighth Circuit wins the award for having on-line the first federal ruling discussing Blakely that I could find after Booker was handed down. However, even though US v. Walker, 2005 WL 66272 (8th Cir. Jan. 13, 2005), is dated Thursday, Jan. 13 (the day after Booker changed the federal sentencing world on Wednesday January 12), the Eighth Circuit in a footnote in Walker says:
Walker has requested leave to file a supplemental brief on the applicability of Blakely v. Washington, 124 S.Ct. 2531 (2004), which we have denied. However, we reserve ruling on the applicability of the Blakely reasoning to this case until the Supreme Court issues its opinions in United States v. Booker and United States v. Fanfan.
Of course, the Eighth Circuit should not be criticized for this quirk of timing; the Supreme Court itself showed us quite clearly through Booker that federal justice often moves more slowly than we might hope.
On a more serious front, I am eager to see when and how lower federal courts around the country start dealing with Booker in written opinions. I hope to be able to share and analyze these opinions as soon as they are available.
Monday, January 10, 2005
Brand new year, same old Blakely
Though the cases are now dated 2005, the lower court Blakely rulings of the new year look a lot like what we saw the last few months of 2004. Notably, in just the first week of 2005, there were nearly 50 cases discussing or noting Blakely coming on-line from an array of federal and state courts. (California, not surprisingly, continues to set the Blakely caselaw pace with over a dozen Blakely on-line rulings for the week alone).
Based on an all-too-quick-review, the most notable or consequential Blakely cases from last week — besides the Idaho Supreme Court ruling discussed here and developments in Alaska and Ohio and Washington detailed here and here — appear to be:
- State v. Timmons, 2005 Ariz. App. LEXIS 1 (Jan. 7, 2005) (vacating a sentencing on Blakely grounds while covering a number of important Blakely issues)
- State v. Noe, 2005 Tenn. Crim. App. LEXIS 7 (Jan. 7, 2005) (reducing a sentence from six years to five years, over a dissent, on Blakely grounds)
- US v. Swanson, 2005 WL 30507 (7th Cir. Jan. 07, 2005) (ordering resentencing on non-Blakely grounds, though also asserting that the "decisions in Blakely, Booker, and Fanfan, however do not affect the manner in which findings of restitution or forfeiture amounts must be made")
January 10, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack
Friday, January 07, 2005
Strange 10th Circuit holding
To date, I believe that the Tenth Circuit has not formally ruled on Blakely's applicability to the federal guidelines. But an opaque recent decision from a Tenth Circuit panel seems to suggest that Blakely has not altered the application of the federal sentencing guidelines at all.
In United States v. Sharbutt, 2005 U.S. App. LEXIS 122 (10th Cir. Jan. 5, 2005), the court repeatedly cites and quotes post-Apprendi, pre-Blakely cases in support of the proposition that the Sixth Amendment "does not apply to sentencing factors that increase a defendant's guideline range but do not increase the statutory maximum." But, of course, Blakely is so consequential because it seems to change this understanding of Apprendi's reach. And, confusing matters in Sharbutt, the court also makes reference to the Apprendi/Blakely exception for "prior convictions," although it seems the defendant in Sharbutt is objecting to judicial fact-finding relating to his possessing a firearm in connection with drug distribution.
Because the Sharbutt ruling is unpublished, only the defendant and his lawyer will have to figure it out. But the case is further evidence that, even six months after Blakely, applications of the decision can be quite confused.
Friday, December 31, 2004
Highlights of a remarkable USSC document
The US Sentencing Commission's recently posted "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here; discussed here) is a remarkable document which, though "preliminary" and "anecdotal," paints a vivid and fascinating picture of federal sentencing in the post-Blakely world. I could do a dozen posts about the memo; every section and nearly every sentence contributes new insights to an understanding of the current state of federal sentencing. For now, I will be content to urge evryone to read the document and provide just a few highlights from the text of the memo here:
Continuances. Several lines of evidence suggest that Blakely has led to a delay in final sentencing in a large portion of cases. A decline in sentencings is reflected in the decrease in case documentation received by the Commission.... Interviews in the 7th and 9th circuits confirm that continuances have generally increased in courts holding that Blakely applies to the federal guidelines, although there is considerable variation from district to district.... Some court administrators are concerned that, after a slow summer, the backlog of cases will strain resources when the cases start moving.
Sentencing post-Blakely. Courts have identified a limited range of possible responses to the Blakely decision, as outlined in the decision tree attached to this report.... Among courts that have held that Blakely applies to the federal guidelines, the most common response appears to be to treat the guidelines as advisory.
Alternative sentencing. Interviewees in our survey in several districts also reported that judges were not announcing alternative sentences and one judge said he had tried the practice but abandoned it. The Blakely coding project has found documentary evidence of alternative sentencing in just 4.9 percent of the cases coded as of November 1.
Case and factor severability. Documentary data are not yet sufficient to quantify the portion of cases adopting any particular approach to severability. Interviews in the 7th and 9th circuits suggest that most judges are holding the guidelines invalid only in cases with offending adjustments. Further, there is evidence that many judges, even in the 9th circuit, resist severing the offending provisions and applying the guidelines without aggravating adjustments.
Sentencing "windfalls." Interviews with participants in the 7th and 9th circuits suggest that sentencing windfalls due to non-application of aggravating adjustments have occurred but are relatively rare. Windfalls appear to be largely limited to cases that plead guilty pre-Blakely, because defendants now stipulate to at least some of the aggravating adjustment or waive their Blakely rights.
December 31, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Three interesting (and long) reads from the Ninth Circuit
The Ninth Circuit has issued three interesting sentencing opinions over the last few days (thank to How Appealing and a reader for tips). All the cases touch on Blakely issues briefly, but they are more interesting for their facts and for highlighting the intricacies and complications of federal sentencing laws. I cannot detail all the particulars, but I can provide a cursory overview.
In US v. Lopez-Zamora, No. 03-50304 (9th Cir. Dec. 29, 2004), the defendant appealed the denial of a downward departure in an illegal entry case based on the minor nature of a prior felony. The court explains that the defendant's argument requires an analysis of "the interplay among three versions of the United States Sentencing Guidelines § 2L1.2(b)(1)(A) — the 1995, 1997, and 2001 versions." Twenty pages later (and over a 9 page dissent), the court concludes a departure would have been legally permissible, but it still affirms the district court's sentence. And the court relies on the prior conviction exception to dispose of any Blakely concerns.
In US v. Bad Marriage, No. 03-30404 (9th Cir. Dec. 30, 2004), the Ninth Circuit reverses an upward departure based on the defendant's criminal history in an assault case. Here's the provocative opening paragraph of the opinion:
This case is a powerful indictment of the criminal justice system. Our social and penal policies are failing to alleviate alcohol abuse on Indian reservations and the crime to which it gives rise. These problems cry out for treatment, not simply more prison time.
The court then needs 23 pages to reject the upward departure by the district court (and along the way explains that, by invalidating the departure on the facts, "we do not resolve whether, or how, Blakely affects upward departures" based on criminal history). The dissent here needed only 5 pages to express disagreement with the court's holding.
In US v. Gordon, No. 03-10322 (9th Cir. Dec. 30, 2004), the court examines the $27 million restitution order imposed in a major wire fraud case involving a "promising federal appellate law clerk gone bad." After 23 pages of intricate analysis of the federal restitution statutes (and after dropping a footnote to note the Ninth Circuit's view that restitution orders are not impacted by Blakely), the court partially affirms and partially reverses the district court's restitution order. One member of the panel adds six pages to explain his partial dissent.
All tolled, these cases provide 90 pages of federal sentencing fun to keep sentencing nerds busy while we wait to ring in the new year.
Wednesday, December 22, 2004
Blakely cases keep rolling along
With all the major Blakely rulings last week (some details here), I thought this pre-holiday week might be quiet on the Blakely front. But there are on-line already more than a dozen state and federal appellate cases dealing with Blakely issues from Monday and Tuesday of this week alone. Here are a few of the rulings that seem most noteworthy:
In US v. Taveras, 2004 U.S. App. LEXIS 26540 (1st Cir. Dec. 21, 2004), the First Circuit in a per curiam opinion upholds a trial judge's consequental drug-quantity findings, which were based on seemingly suspect accomplice testimony. Of course, this finding raises Blakely issues, but the Taveras court continues the First Circuit's approach (noted here and here) of using plain error analysis to rebuke Blakely claims.
In US v. Vaughan, 2004 U.S. App. LEXIS 26545 (10th Cir. Dec. 21, 2004), the Tenth Circuit similarly uses plain error analysis to rebuke Blakely claims in a major fraud case. Here, the court notes the defendant "admitted in the plea agreement to all five of these [Blakely-significant] facts [and thus] has failed to show that any sentencing error under an extension of Blakely would seriously affect the fairness, integrity, or public reputation of the judicial proceedings in this case."
In US v. Mellen, 2004 U.S. App. LEXIS 26513 (D.C. Cir. Dec. 21, 2004), the D.C. Circuit, in a split 2-1 decision, overturns the trial court's calculation of the amount of loss in a fraud case. In so doing, the court avoided having to address Blakely, but it explained: "We issue our judgment today without awaiting guidance from the Supreme Court on this question because it appears, quite apart from any constitutional concerns, that [the defendant] may be eligible for immediate release upon resentencing. To the extent necessary, the district court may apply the Supreme Court's upcoming decisions in Booker and Fanfan in the first instance at resentencing."
In State v. Gomez, 2004 WL 2937808 (Ariz. App. Div. 1, Dec. 21, 2004), the court examines the rules for applying Arizona's Proposition 200, which was "a voter initiative also known as the Drug Medicalization, Prevention, and Control Act of 1996 [which seeks] to treat initial convictions for personal possession and use of a controlled substance as a medical and social problem." Significantly, the court finds the provision which "disqualifies an otherwise eligible defendant from mandatory probation for a drug offense based solely on a finding that the defendant has been 'indicted for a violent crime' to be unconstitutional."
In State v. Brown, 2004 WL 2938643 (Minn. App. Dec. 21, 2004), the court sustains a Blakely objection to the application of Minnesota's career offender sentencing statute. Here's how the Brown court explains why the defendant's sentence was Blakely problematic: "Although the existence of prior convictions falls under an exception to the Blakely requirement of jury findings, an upward departure under the statute requires an admission or a jury verdict on the added finding that the convictions formed a pattern of criminal conduct."
Friday, December 03, 2004
The 11th Circuit (sort of) speaks on retroactivity
With many thanks to Howard Bashman at How Appealing for the tip here, the Eleventh Circuit issued today a brief order denying rehearing en banc in US v. Levy (original discussed here), which led to lengthy concurrences and dissents addressing the retroactive application of Blakely.
I will need at least part of weekend to consume and comment on the opinions, which can all be accessed here, though I can say now that I never get tired of non-decisions making news in the Blakely world. There is also an amazing Apprendi retroactivity case that came down from the Illinois Supreme Court yesterday that I also hope to discuss at length this weekend.
Monday, November 22, 2004
Recent Ninth Circuit Blakely/Ameline remands
Though not ground-breaking in any significant respect, a few sentencing remands from the Ninth Circuit last week provide another glimpse into the post-Blakely world in the one jurisdiction that has, through its Ameline decision, deemed Blakely applicable to the federal guidelines and also deemed the guidelines severable. (Prior glimpses into life in the Ninth Circuit after Ameline can be found here and here.)
In US v. Parisian, 2004 WL 2633295 (9th Cir. Nov. 19, 2004), the Blakely-problematic enhancements involved role in the offense and drug quantity; in US v. Gordon, 2004 WL 2603622 (9th Cir. Nov. 17, 2004), two defendants get Blakely remands, although the specific enhancements at issue are not specified (and the court reiterates that "Blakely does not affect a restitution order made, as in this case, under 18 U.S.C. § 3663A"); in US v. Burgert, 2004 WL 2580922 (9th Cir. Nov. 15, 2004), the Blakely-questionable enhancement involved flight from an officer.
As noted previously here, in my testimony to the USSC last week, I encouraged the Commission to assemble and make public any and all data the USSC has collected concerning the post-Blakely state of federal sentencing. Judge Castillo indicated the Commission would try to release this data as soon as possible, and these remands from the Ninth Circuit only whet my data-junkie appetite more.
Saturday, November 13, 2004
Noteworthy news from the midwest
I am having a grand time participating in this University of Chicago Legal Forum event. Introducing me before my keynote address, brilliant Chicago Dean Saul Levmore, speaking with enormous wit and wisdom, gently teased me for being too complementary and generous in my blog commentary.
Meanwhile, as I am enjoying Chicago hospitality, others in the midwest are making Blakely news. The Seventh Circuit yesterday decided two Blakely cases: US v. Pittman, 2004 WL 2567901 (7th Cir. Nov 12, 2004) (affirming career offender sentence based on prior conviction exception); US v. McKee, 2004 WL 2567902 (7th Cir. Nov. 12, 2004) (remanding for resentencing, though staying mandate). In addition, Michael Ausbrook over at INCourts continues his comprehensive coverage of Blakely in Indiana through a series of important posts.
Thursday, November 11, 2004
What might come of "plain error" rulings and other affirmances?
The First Circuit though its ruling yesterday in US v. Fraser, 2004 WL 2537410 (1st Cir. Nov. 10, 2004), maintained its status as a leader in affirming convictions over Blakely objections on plain error grounds. Prior discussion of the First Circuit's "plain error" Blakely work can be found here and here and here and here.
The Fraser decision and the First Circuit's "plain error" approach — as well as the steady stream of affirmances over Blakely objections coming from the Fourth and Fifth Circuits (which have, unlike the First, expressly held Blakely inapplicable to the federal system) — has me wondering what will happen to all these Blakely appeals if (when?) the Supreme Court officially declares Blakely applicable to the federal system in Booker and Fanfan. It would seem that, at that point, a Blakely error becomes plain, although waiver/forfeiture claims might still be made in particular cases. Plus, as detailed in the Fraser case, a few of these affirmances assert — sometimes as a clear holding, sometimes in dicta — that the defendant's Blakely claims would be unavailing even if Blakely applied to the federal system.
Not being a specialist in appellate procedure, I do not know if and how some defendants now losing in the Circuits might be able to get relief after Booker and Fanfan. (Notably, the Second Circuit has been expressly stating, in every Blakely-related case it is now deciding, that the "mandate will be held pending the Supreme Court's decision" in Booker and Fanfan. Similarly, the Eighth Circuit is operating under an administrative orders that essentially holds all Blakely cases.) Needless to say, if Blakely is held applicable to the federal system in Booker and Fanfan, sorting out all these "mid-stream" cases will be a huge task.
Tuesday, November 09, 2004
Friends in high places
With many thanks to Michael Ausbrook of INCourts for the head's up, I was extremely pleased to discover that I apparently have readers and fans in the Indiana Prosecuting Attorneys Council (IPAC). Yesterday, two days before the Indiana Supreme Court hears its Blakely cases of Heath and Smylie (background here and here), IPAC filed an amicus brief in which my forthcoming article "Conceptualizing Blakely" and its discussion of an offense/offender distinction play a prominent role. (Over at INCourts you can get more background here and here on the Indiana brief and the Heath and Smylie arguments.)
The full IPAC brief, which you can access here, is an interesting read not only for the offense/offender discussion, but also for its views on consecutive sentencing after Blakely and its assertion that Indiana "courts need not await action by the legislature to establish remedial procedures to insure compliance with Blakely." But, of course, ever the egoist and egotist, my favorite parts of the brief are those where my "Conceptualizing Blakely" article (available at this post) gets heavy play. And I especially liked the brief's conclusion, which states: "If Blakely is held to govern Indiana sentencing statutes making a distinction between offense facts and offender characteristics is essential to conducting a rational sentencing system."
November 9, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack
Saturday, November 06, 2004
More affirmances despite Blakely in the First Circuit
The First Circuit, continuing a trend highlighted earlier this week here, continues to use plain error analysis to affirm sentences imposed before Blakely over Blakely objections. See US v. Coyne, 2004 U.S. App. LEXIS 22964 (1st Cir. Nov. 3, 2004); US v. Stokes, 2004 U.S. App. LEXIS 23290 (1st Cir. Nov. 5, 2004). The Stokes ruling is particularly noteworthy because the First Circuit asserts that "even if Blakely is held to apply to the Federal Guidelines, we find no basis for reversal" because "the judge's findings — that Stokes used an AK-47 during a crime of violence, and that such a gun is extraordinarily dangerous — were 'overwhelmingly' proven."
Monday, November 01, 2004
Blakely triple play from the First Circuit
Perhaps literally as I was writing this post noting that federal circuit courts have been finding ways to affirm previously-imposed sentences even when Blakely issues were implicated, the First Circuit today affirmed three sentences over Blakely objections. Though the facts and legal specifics vary in US v. Del Rosario, 2004 WL 2426239 (1st Cir. Nov. 01, 2004); US v. Martinez Bermudez, 2004 WL 2426246 (1st Cir. Nov. 01, 2004); US v. Stearns, 2004 WL 2426261 (1st Cir. Nov. 01, 2004), in all three cases the First Circuit continues its trend of using waiver/forfeiture and plain error doctrines to reject Blakely claims raised only on appeal.
Good enough for Blakely purposes
Last month in this post, I noted state appellate decisions which sought to minimize the impact of Blakely by finding ways to affirm previously-imposed sentences even when Blakely issues were implicated. A number of federal circuit courts have, unsurprisingly, been making similar efforts, as evidenced by decisions from the coasts late last week.
I previously noted here the Ninth Circuit's decision in US v. Mayfield, 2004 WL 2415039 (9th Cir. Oct. 29, 2004), affirming a lengthy sentence in a drug case despite the imposition of a two-level enhancement by the sentencing judge pre-Blakely. A different basis for affirmance post-Blakely can be found in the Second Circuit's decision in US v. Monsalve, 2004 WL 2417800 (2d Cir. Oct. 29, 2004), which held that the "constitutional requirement of a sentence based solely on facts admitted by the defendant set forth in Blakely has been satisfied" when the defendant admitted in her plea agreement the drug quantity and type involved in her offense. The case becomes noteworthy because the Second Circuit goes on to explain:
Defendant's denial of knowing drug type or quantity during her plea colloquy does not negate the admissions Defendant made in her plea. Indeed, sentencing based on such conflicting statements has long been held constitutional, as a criminal defendant may enter a guilty plea and receive a sentence even while maintaining her innocence. North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (an express admission of guilt, in addition to a properly accepted guilty plea, "is not a constitutional requisite to the imposition of criminal penalty"). Therefore, an admission in a plea agreement, even if later controverted in a plea colloquy, satisfies the constitutional requirements set forth in Blakely.
Saturday, October 30, 2004
The Ninth Circuit's nimble Blakely dodge
In US v. Mayfield, 2004 WL 2415039 (9th Cir. Oct. 29, 2004), the Ninth Circuit was able to affirm a lengthy sentence in a drug case even though a two-level sentencing enhancement was made by the judge because defendant Mayfield possessed a firearm:
Here, Mayfield was sentenced to 262 months. Without the two-level upward adjustment for the firearm, the applicable sentencing range would have been 210-262 months, based on a total offense level of 36 and a criminal history category of II. Mayfield's sentence of 262 months falls within the upper-most part of this range. Therefore, the district court did not violate the principles of Blakely because the court could have imposed a 262-month sentence solely on the basis of the facts reflected by the jury's verdict. Whether the court actually would have sentenced Mayfield to a term of imprisonment of 262 months in the absence of the two-point enhancement is unknown. Nonetheless, because the sentence imposed by the district court was within the applicable Guidelines sentencing range under the facts found by the jury, the 262-month sentence imposed by the court does not offend the Sixth Amendment as interpreted by the Supreme Court in Blakely, or by our court in Ameline.
Wednesday, October 20, 2004
Seeking news on "alternative sentencing"
Last month, in the wake of the Fourth Circuit's ruling in Hammoud which recommended that district judges "announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only," I wondered here whether anyone is keeping track of alternative sentences announced in the Fourth Circuit and elsewhere after Blakely. I continue to hope that somebody is tracking the alternative sentencing story — perchance the US Sentencing Commission — because data on how judges are sentencing when "treating the guidelines as advisory only" will likely be very valuable no matter what the Supreme Court does in Booker and Fanfan.
I am also wondering whether the Fourth Circuit's recommendation is actually being followed. Recall that US District Joseph Goodwin of the Southern District of West Virginia thoughtfully explained here why he considered alternative sentencing inappropriate, and that Professor Ronald Wright reported back in August here that most district judges in the Fourth Circuit had not been announcing alternative sentences.
I am now thinking about these matters because an unpublished decision by the Fourth Circuit yesterday suggests that the circuit court itself is not a true believer in alternative sentencing. In US v. Johnson, 2004 U.S. App. LEXIS 21707 (4th Cir.Oct. 19, 2004), the court dropped a footnote in which, after summarily rejecting a Blakely claim by citing Hammoud, the court said it did "not deem it necessary to remand the case so that the district court may announce an alternative sentence."
I continue to suspect that alternative sentencing works better in theory than in practice, but I obviously have no direct "in the courtroom" experience to support this supposition. I hope others working in the Fourth Circuit or elsewhere might use the comments to share any "in the courtroom" experiences with alternative sentencing.
Thursday, October 14, 2004
The importance of waiver
As detailed here, the Office of the Federal Public Defender in the Northern District of Texas filed an amicus brief in Booker and Fanfan to discuss waiver issues, even though such issues are not directly before the High Court. The brief essentially argued that a defendant cannot and does not waive any Blakely rights by simply admitting facts in a plea agreement.
Perhaps the FPD ought to have lodged a copy of this brief in the Eighth Circuit, because in an unpublished case earlier this week the court did just what this amicus brief warned against. In US v. Martinez-Salinas, 2004 U.S. App. LEXIS 21153 (8th Cir. Oct. 12, 2004), the court summarily rejected the defendant's Blakely argument by noting simply that his (pre-Blakely) "plea agreement included stipulations as to drug quantity, protected location, and firearm possession."
Meanwhile, in the same part of the country, we get a waiver-related snippet from the Supreme Court of Colorado in Hulett v. Colorado, 2004 WL 2283440 (Colo. Oct. 12, 2004). The Court in Hulett simply denied certiorari, but Justices Martinez and Bender indicated that they "would grant as to the following issues:  Whether a guilty plea including a complete sentence advisement waives the right to have sentence enhancers tried to a jury as required by Blakely v. Washington, 124 S.Ct. 2531 (2004).  Whether sentences can be aggravated on the basis of earlier charges that were dismissed."
Tuesday, October 12, 2004
The Minnesota courts officially address Blakely
It is a big Blakely day in the states. Following the important decisions out of New Jersey (noted here), we also today get noteworthy rulings from Minnesota.
For quite some time, the Minnesota Courts of Appeals have been just remanding cases raising Blakely issues, as noted here (and see also today's State v. Conley, 2004 WL 2283421, (Minn. App. Oct. 12, 2004). Of course, these decision have been against the backdrop of the reports by the Minnesota Sentencing Guidelines Commission (available here and here) which concede that there are Blakely-problematic elements of state law.
Today, officially, the Minnesota Court of Appeals holds, in two published decisions, that Blakely invalidates upward departures and sentences under Minnesota's "career offender" statute. The decisions in Minnesota v. Conger, A03-1771 (Minn. App. Oct. 12, 2004), and Minnesota v. Mitchell, A03-110 (Minn. App. Oct. 12, 2004), are both quite interesting reads, especially because the state apparently has been arguing that Blakely is inapplicable in Minnesota because the "Minnesota sentencing guidelines are not mandatory but merely 'advisory to the district court.'" In Conger, the court reject this claim in the following passage:
[E]ven though the sentencing guidelines are advisory to the district court, and a person convicted of a felony does not have a right to receive the presumptive, fixed sentence established by the Sentencing Guidelines Commission for that person's offense, a district court that does not impose the presumptive, fixed sentence is required to make findings of fact that support the court's reasons for departing from the presumptive sentence. This means that under the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.
Friday, October 08, 2004
Bail and Blakely/Booker
With many thanks to Crime & Federalism's post here, we now have Judge Posner's wisdom, writing for a unanimous three-judge panel, about when in light of Booker a criminal defendant is entitled to release pending appeal. Here, in lots of detail, is what Judge Posner explains in US v. Lagiglio, No. 01 CR 348-7 (7th Cir. Oct. 8, 2004), a case involving a 41 month sentence for a tax offense:
LaGiglio moved us to order her released pending appeal, arguing that Booker caps her sentence at 12 months and she has already been in prison that long. We directed the district judge to revisit his denial of her motion for release in light of the intervening decisions. He ruled that her sentence was unlawful under Booker and ordered her released, precipitating this appeal by the government.
The government points out that LaGiglio is entitled to be released only if she is likely to be resentenced to a term of imprisonment shorter than the length of time that she will have been in prison by the time her appeal is decided. The Bail Reform Act authorizes release pending appeal only if (so far as bears on this case) the appeal "raises a substantial question of law or fact likely to result in . . . a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." 18 U.S.C. § 3143(b)(1)(B)(iv). An imprisoned person is not to be released pending further proceedings if it is a certainty that however those proceedings are resolved, she will have to be returned to prison....
The district judge did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.
Should the judge be minded to release LaGiglio, he will have to consider the government’s argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.
Thursday, September 30, 2004
The First Circuit on prior convictions and plain error
The First Circuit yesterday continued its traditional of saying a lot about Blakely — and rejecting Blakely claims — without making a direct ruling on Blakely's applicability to the federal guidelines (previous examples are here and here and here). In US v. Cordoza-Estrada, 2004 WL 2179594(1st Cir. Sept. 29, 2004), the Court rejected a Blakely claim relying on both the prior conviction exception and on "plain error" doctrine:
Blakely did not disturb the distinction between "the fact of a prior conviction" and other facts that "increase the penalty for a crime beyond a prescribed maximum." Blakely, 124 S.Ct. at 2536 (quoting and applying the Apprendi rule stated above). Accordingly, there was no error in the trial judge's consideration of the prior conviction. Even if there were such an error, Appellant has failed to demonstrate that it affected substantial rights of his because there is no dispute that he had a conviction....
Appellant has also launched a broadside attack on the validity of the Sentencing Guidelines under the Sixth Amendment. Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was "plain."...
In determining whether the error was plain, the Supreme Court has explained: "Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be 'plain' at the time of appellate consideration." Johnson v. United States, 520 U.S. 461, 468 (1997). The question of the continuing validity of the Sentencing Guidelines is an issue that has roiled the federal courts, and split circuits. [Citing Booker, Hammoud, and Koch]. Whatever the outcome, the answer is neither plain nor obvious at the time of this appeal.
Because the trial judge's sentence was consistent with precedent, and the current law is unsettled, we conclude that there is no plain error.
Monday, September 27, 2004
Downward departures, Koon and Blakely
The West merits some sort of award for being the most interesting arena for sentencing developments these days. (Consider news here and here from California alone, and then throw in Judge Cassell's work in Utah and Blakely happenings in Oregon and Colorado). And, of course, thoughtful readers of the blog perhaps now realize that I think the Ninth Circuit in Ameline (details here) has been the closest to getting Blakely "right" for the federal system.
Today, the Ninth Circuit today issued this order and amended opinion in US v. Rivas-Gonzalez, an interesting case (from Montana) in which the district court downward departed "by eight levels (from seventeen to nine), which even exceeded by three levels the degree of departure that Rivas had requested" based on "cultural assimilation." The Ninth Circuit reversed this downward departure in a pre-Blakely decision, and today's action only slightly amended the decision and reported on the circuit's decision not to go en banc.
The case is interesting on the facts, especially in light of my recent posts here and here about sentencing windfalls and the possibility that purely advisory guidelines might create lower overall sentences. In addition, the dissents by Judges Pregerson and Wardlow contain interesting discussions of the Supreme Court's decision in Koon v. US, 518 U.S. 1 (1996), and departure decision-making, and Judge Pregerson's dissent for three judges also has a very interesting footnote about the possible impact of Booker and Fanfan.
September 27, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack
Wednesday, September 22, 2004
First Circuit plain error approach to Blakely
Proving yet again (as stressed here) that Blakely justice and procedure now depends very much on the Circuit in which a case is litigated, in US v. Savarese, No. 04-1099 (1st Cir. Sept. 22, 2004), the First Circuit again gave a Blakely claim short shrift. In Savarese, similar to the approach it took in Morgan (discussed here), the First Circuit relies on plain error doctrine to reject a Blakely claim:
[W]e conclude here that, even if Blakely is held to apply to the Federal Guidelines, there is no basis for reversal in this case.
The appellant did not raise the jury trial issue in the district court, nor did he request a jury trial with respect to factual issues relating to the sentencing. Thus, we review the district court’s enhancement of Savarese's sentence for plain error....
[T]he defendant did not dispute the factual basis underlying any of the enhancements. Under the Supreme Court’s decision in Johnson [v. United States, 520 U.S. 461 (1997)], we conclude that this forecloses a finding of plain error.... [T]he district court’s error under Blakely, if any, in finding the facts underlying the enhancements of the defendant’s sentence was not plain error.
Waiting, waiting, waiting....
Marcia Oddi over at the Indiana Law Blog here notes a noteworthy ruling authored by Judge Easterbrook today in US v. Malik, No. 03-3404 (7th Cir. Sept. 22, 2004). In Malik, Judge Easterbrook explains that the defendant's failure to raise Blakely issues in the district court will not preclude him from doing so in an ordered resentencing:
Because Malik must be resentenced, the district court will need to take account of United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, No. 04-104 (U.S. Aug. 2, 2004). Malik failed to make a Booker-like argument in the district court, but he is free to develop this contention at a new sentencing after Booker. Defendants may raise after a remand new arguments based on statutes or opinions that post-date the original sentencing and are not logically foreclosed by the appellate decision. [cites omitted] Appellate mandates may limit the issues that are open on remand, see Pearson v. Edgar, 153 F.3d 397, 405 (7th Cir. 1998), but we impose no such restrictions; Malik should be resentenced from scratch....
Little could be gained by resentencing Malik immediately, while legal uncertainty prevails and there is a substantial risk that whatever approach the district court adopts would be disapproved within a few months by the Supreme Court. The district court should defer resentencing Malik until after the Supreme Court has decided Booker and then proceed as appropriate in light of that decision.
Though I think the Seventh Circuit's decision to allow the defendant to "be resentenced from scratch" is itself significant, Marcia Oddi thinks the last paragraph suggests that the Circuit is calling "a halt to sentencing until Supreme Court acts in Blakely/Booker." I am not sure if that's exactly what Judge Easterbrook and the Seventh Circuit is saying in Malik, but it is not an unreasonable inference.
Wednesday, September 15, 2004
Circuit contrasts: variations in appellate justice
As detailed in the three Senators' amicus brief filed in Booker and Fanfan (available here, commentary here), guideline reforms sought to "eliminate the intolerable disparities that had plagued the federal sentencing system." Yet today we have stunning disparities in the application of the federal guidelines in the wake of Blakely. Even putting aside all the noted variations from district to district and case to case, on the circuit level alone on just the most basic Blakely question we have a five-way circuit split:
1. Blakely has been deemed, at least for the time being, wholly inapplicable to the federal guidelines in the Second, Fifth, and Eleventh Circuits;
2. Blakely has been deemed, at least for the time being, inapplicable to the federal guidelines, but an order recommending the announcement of an alternative sentence is in place in the Fourth and Sixth Circuits;
3. Blakely has been deemed applicable to the federal guidelines, but severability questions have been left open, in the Seventh Circuit;
4. Blakely has been deemed applicable to the federal guidelines and the guidelines deemed severable in the Ninth Circuit; and
5. Blakely's impact on the federal guidelines is presently unresolved in the First, Third, Eighth, Tenth and DC Circuits.
And beyond these critical basics, there are and surely will continue to be variable rulings on "smaller" Blakely questions like plain error, waiver, restitution, indictment practices and so on and so on (see general background here and here and here)
Moreover, as all good lawyers know, circuit differences are reflected not only in doctrine, but also in attitude. Indeed, I sometimes perceive a certain tone in some Blakely rulings, and this tone often varies from circuit to circuit. Two cases handed down yesterday perhaps provide an example of what I mean.
In US v. Pree, 2004 WL 2039274 (7th Cir. Sept. 14, 2004), the Seveth Circuit seems to go to extraordinary lengths to preserve a Blakely claim for a defendant who did not even raise it:
As a final matter, we address an issue not raised by the parties — the constitutionality of the sentencing enhancement Ms. Pree received for obstruction of justice. Ms. Pree's case was briefed and argued prior to the Supreme Court's decision in Blakely [and this court's holding] in Booker that enhancements imposed by the court without a jury finding violate the Sixth Amendment.
Ms. Pree does not address to this court, nor can we find evidence in the record to indicate, that she addressed before the district court the constitutionality of her sentencing enhancement. In light of the sea change in federal sentencing law wrought by Blakely and Booker, we think it appropriate to take note of the possibility of an unconstitutional sentencing enhancement. Given the precedent in this circuit prior to Blakely, we think it would be unfair to characterize Ms. Pree as having waived a challenge to the validity of her sentencing enhancement.
The Supreme Court has granted certiorari in Booker and will consider, in the very near future, the application of Blakely to the United States Sentencing Guidelines and therefore the correctness of this court's decision in Booker. We therefore shall stay our mandate in this case until the Supreme Court has rendered its decision in Booker. Within fourteen days of the Supreme Court's decision in Booker, each party may submit a memorandum presenting its views on the application of that decision to this case.
[Footnote 17. It appears that Ms. Pree's enhanced sentence will be completed prior to the decision of the Supreme Court. Any matter with respect to bail should be addressed to the district court.]
But in Burrell v. US, 2004 WL 2039420 (2d Cir. Sept. 14, 2004), the Second Circuit seems to go to extraordinary lengths in a footnote to extinguish an arguable Blakely claim:
Despite the district court's failure to award a certificate of appealability on the Apprendi point, Burrell argues it in a pro se supplemental brief filed with this court. We may, of course, amend a COA to include an issue not certified by the district court ... [but we] decline to do that in this case because (1) Burrell's Apprendi claim is foreclosed by our [prior Apprendi] decisions ... which we have recently declined to reconsider despite the Supreme Court's decision in Blakely; (2) even if Burrell could establish an Apprendi error in his case, the law is clear that Apprendi cannot be applied retroactively on a collateral challenge to a conviction; and (3) an Apprendi error would, in any event, be harmless in this case because it would not result in the reversal of Burrell's conviction, only resentencing, since (a) he has completed serving the originally imposed term of incarceration, and (b) it is the fact of his conviction not the length of his sentence that now affects his deportation.
Of course, the defendant in Pree obviously has a much, much stronger case on the merits than the defendant in Burrell, and different circuits might have made similar rulings in each individual case. But I do think these cases help highlight the possibility that general attitudes about Blakely claims may impact future cases as much as the intricacies of certain doctrines.
Tuesday, September 14, 2004
Covering all the bases
In an interesting twist on the alternative sentencing idea (previously detailed here and here), the Seventh Circuit in US v. Schaefer, 2004 U.S. App. LEXIS 19166 (7th Cir. Sept. 13, 2004), recently decided that "[a]lthough Blakely and Booker necessitate our remand of this case to the district court for resentencing, we will nonetheless address Schaefer's arguments under the Guidelines ... in the interest of judicial economy in the event that the Supreme Court may subsequently decide some other fate for the federal Guidelines than that indicated in Booker."
After some thoughtful but fairly standard pre-Blakely analysis, the Seventh Circuit holds that the case is remanded due to Booker, but "in the event that the Supreme Court decides that Blakely does not invalidate the federal sentencing Guidelines, we affirm" Schaefer's sentence. And at the very end of its ruling, the Seventh Circuit drops this interesting footnote:
Schaefer has also requested immediate release under bond from incarceration, since he has already served what would presumably be his sentence if the Guidelines are invalid. Based on the present state of the law in this circuit, this seems to be a meritorious request, but we leave this decision to the district court on remand. In this regard, the district court might wish to take note of Schaefer's earlier positions in this case with respect to unchallenged aspects of his sentence. See Booker, 375 F.3d at 510 (interpreting Blakely to allow sentences to be imposed based on "what the jury found or the defendant admitted or, as here, did not contest") (emphasis added).
Sunday, September 12, 2004
Head-counting in an alternative universe
Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here and commentary here) includes a brief explanation for the Circuit's recommendation that district judges "announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only." This explanation helps me understand a bit better why a majority of the Fourth Circuit believes that "announcing — not imposing — a non-guidelines sentence at the time of sentencing will serve judicial economy," even though the court recognizes that the "announcement of a non-guidelines sentence may require the district court to consider issues not generally pertinent in guidelines sentencing, thereby requiring the investment of additional time at the sentencing hearing."
But, like other aspects of the Hammoud decision, the alternative sentencing explanation leaves me with more questions than answers. First, in light of the Fourth Circuit's recommendation, shouldn't the disposition of the Hammoud case been a remand for the announcement of an alternative sentence? Wouldn't it be useful, to paraphrase the Fourth Circuit, for "the district court and the parties [to make] at least substantial progress toward the determination of a non-guidelines sentence [in Hammoud's case], at a time when the facts and circumstances [are still] clearly in mind"?
Second, Judge Widener's dissent to the "alternative sentence" portion of the Hammoud ruling asserts that "even if the recommended advisory sentencing is discretionary, about which I have some doubt, in my opinion, it is inadvisable." This statement and the majority's discussion raises, but does not answer, the question of whether district courts may lawfully refuse to follow the alternative sentencing recommendation. May Judge Goodwin continue to refuse to impose alternative sentences (as thoughtfully explained here), or must he now get in line? The Hammoud majority's oblique footnote addressing Judge Goodwin's serious concerns about alternative sentencing does not answer this question. And since Ron reported here that most district judges in the Fourth Circuit have not been announcing alternative sentences, this is a question that may be on the minds of many district judges in the Fourth Circuit.
Finally, I have a distinct empirical/practical question: Is anyone keeping track of how many and what sorts of alternative sentences have been announced in the Fourth Circuit and elsewhere after Blakely? I hope and expect the US Sentencing Commission is collecting this data, and the recent memo from the Judicial Conference Criminal Law Committee discussed here suggests that the federal Bureau of Prisons might also be tracking these issues. Recall also that DOJ through the Comey memo (available here) urged its prosecutors to seek alternative sentences and indicated it would be collecting lots of data during this chaotic period.
Whomever may be keeping track of alternative sentencing data, I sincerely hope that this data can be systematically tallied and made available to the public as soon as possible. I think I can fairly speak for the academic and research community when I say that many academics and researchers will have an interest in examining and analyzing alternative sentencing data.
Thursday, September 09, 2004
The power of separation of powers?
Judge J. Harvie Wilkinson's concurrence in the Fourth Circuit's Hammoud ruling provides a fascinating "separation of powers" arguments for why Blakely does not apply to the federal guidelines. Though I will need to re-read Judge Wilkinson's rich opinion to appreciate all it is saying, I think I have the basic logic: (1) the judiciary made the federal guidelines, (2) reading Blakely to require proof of guideline factors to a jury beyond a reasonable doubt converts these factors into de facto elements of new crimes, (3) but only the legislature can properly create and define crimes.
This is interesting logic, though it raises almost as many questions as the majority opinion in Hammoud (discussed here). First, though the US Sentencing Commission is nominally in the judicial branch, I have highlighted before that the USSC both in design and in operation is far more like, in Justice Scalia's words, a "junior-varsity Congress" than just a group of judges making sentencing standards for themselves. Second, given that the courts have consistently and widely held that the Ex Post Facto Clause applies to changes in the guidelines (see SG Brief at 25), haven't the courts already concluded that the guidelines do create de facto elements of new crimes?
Finally, I think there is a "through the looking glass" quality to this separation of powers argument, especially given the Framers' apparent interests in democratic checks and balances and in safeguarding individual rights through the Bill of Rights. The implication of Judge Wilkinson's argument, as I understand it, is that if and when Congress creates binding sentencing laws though traditional legislative means (securing approval by both houses and signature by the President), then defendants have the benefits of full constitutional procedural rights during the enforcement of those laws. But if and when a legislature finds a way to writing binding sentencing laws through a non-legislative means (e.g., creating an agency whose rules will be legally binding despite never being traditionally enacted), then defendants have fewer procedural rights in the enforcement of those laws. Whatever one thinks of structural constitutional arguments, I doubt the Framers (or Justice Scalia) ultimately imagined that defendants would get less procedural rights in the application of those laws that are created in less democratically accountable ways.
"Statutory" analysis in Hammoud
Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here) puts great emphasis on the use of the phrase "statutory maximum" in Blakely and Apprendi, and he thus finds Blakely inapplicable to the federal guidelines because they are not statutes. In Wilkins words, "Blakely applies to the guidelines only if the Blakely Court redefined the term 'statutory maximum' to include any fact that increases a defendant's potential sentence." But, says Wilkins, "[o]n close examiniation of Blakely, we conclude that the Supreme Court simply applied — and did not modify — the rule articulated in Apprendi."
Though I suppose this is a plausible reading of the Blakely decision, on close examination it raises a lot of questions. First, of course, if the Fourth Circuit is reading Blakely properly, one must wonder why Justices O'Connor and Breyer made so much of a fuss in their Blakely dissents. Obviously, given the energy they spend lamenting the apparent demise of the federal guidelines, Justices O'Connor and Breyer obviously thought Blakely was modifying the rule in Apprendi.
Second, a close reading of Justice Scalia's opinion in Blakely reveals that after the key passage (at slip op. 7) where Justice Scalia (re)defines "statutory maximum," he does not once use that apparently critical phrase again in the final 10 pages of his opinion for the Court. Instead, Justice Scalia speaks of "what state law authorized" (slip op. 8), and not "what a state statute authorized"; he speaks of the "jury's traditional function of finding the facts essential to lawful imposition of the penalty" (slip op. 13), not of the jury's role "finding the facts essential to statutory imposition of the penalty;" he speaks of a defendant's "legal right to a lesser sentence" (slip op. 13), not of a "statutory right to a lesser sentence;" he speaks of "all facts legally essential to the punishment" (slip op. 17), not of "all facts statutorily essential to the punishment." In other words, if Justice Scalia and the others in the Blakely majority were trying not to modify the meaning of Apprendi, the Court's opinion should have been crafted much more carefully.
Finally, as suggested here and here, the Fourth Circuit's conclusion that Blakely "simply applied" Apprendi may have some significant retroactivity consequences. The opinion in many ways intimates that the holding in Blakely was dictated by Apprendi (see p. 66: "in Blakely the Court simply applied the rule of Apprendi to a new set of facts "). But as these recent North Carolina rulings document, at least one Fourth Circuit state has a statutory sentencing guideline system just like the one declared unconstitutional in Blakely. After Hammoud, do all North Carolina prisoners who received enhancements and had not-yet final convictions in June 2000 (when Apprendi was decided) now have strong claims for Blakely relief in the federal courts (even if the state courts won't grant such relief)?
So much to say, so much to say...
In addition to ensuring fans of the Dave Matthews Band will now visit this blog, the title of this post accurately describes both the Fourth Circuit's opinions in Hammoud — all 145 pages — and my own feelings about commenting on the Fourth Circuit's work in Hammoud. Let me here do some preliminary commentary, and allow later posts to zero in on various specifics.
First, let me apologize for giving the Fourth Circuit so much grief about taking so long to issue this opinion. I was not aware that there were so many serious and challenging non-Blakely issues that the court had to confront in Hammoud. (The Blakely discussion does not even start until page 48!) I am still a bit troubled by the court's decisions to rush out an opaque Blakely order and take over a month to provide more guidance, but the complicated legal circumstances in Hammoud make this procedure a bit more understandable.
Second, let me note that the author of the main opinion in Hammoud, Chief Judge William W. Wilkins was the original chair of the original US Sentencing Commission that drafted the original guidelines. Also, as we saw in the Koch en banc ruling from the Sixth Circuit, the Hammoud decision is the near judicial equivalent of a "party-line vote." If my calculations are correct, all three judges joining the Hammoud dissent were appointed by a Democratic President (assuming Judge Gregory is counted as a Clinton appointee), while seven of nine judges finding Blakely inapplicable to the federal guidelines were appointed by Republican Presidents.
Third, let me highlight that, no matter what one thinks about Blakely and its applicability to the federal guidelines, the basic facts of Hammoud's sentencing have to give one pause. As Judge Motz rightly stresses at the start of her dissent, Hammoud's sentence without reliance on facts found by the judge by a preponderance would have been 57 months. But judicial fact-finding required under the federal guidelines led the district judge to increase Hammoud's sentence of less than 5 years to a sentence of 155 years!
Wednesday, September 08, 2004
The 4th Circuit Speaks!!
Perhaps proving the old saying "be careful what you wish for," my long-standing wish to see what the Fourth Circuit has to say to explain its order in Hammoud has been granted with this 145 pages opinion! No wonder it took a while to write (it will likely take a while just to download it). Here is the complicated line up:
Chief Judge Wilkins wrote the opinion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King, Shedd, and Duncan joined and in which Judge Widener joined as to all except Part VII.C.
Judge Wilkinson wrote a concurring opinion. Judge Shedd wrote a concurring opinion. Judge Widener wrote a concurring and dissenting opinion. Judge Motz wrote a dissenting opinion, in which Judges Michael and Gregory joined. Judge Gregory wrote a dissenting opinion.
Analysis to follow late tonight.
Saturday, September 04, 2004
Another possible Blakely front and great dicta
Though not formally a Blakely case, the South Carolina Supreme Court in a decision last week was apparently influenced by Blakely when considering an intricate issue of appellate procedure. In State v. Brown, 2004 WL 1948696 (S.C. Aug. 30, 2004), the Court was considering whether and when an appellate court, after reversing a conviction due to lack of evidence on one element of the offense, should be able to remand the case for entry of judgment and sentencing on a lesser included offense. The Brown court provides an extended and quite interesting discussion of the appropriateness of so-called "sentencing remands," and it notes along the way that "[n]umerous state and federal courts have approved of the practice of a sentencing remand in appropriate circumstances."
The court in Brown ultimately concludes that when a conviction is reversed due to insufficient evidence, a court should consider remanding a case for sentencing on a lesser included offense only in very limited circumstances, and along the way the court cites Apprendi, Ring, and Blakely in support of its ruling. In so doing, the court drops this choice footnote:
We recognize the vigorous debate, as expressed in Apprendi, Ring, and Blakely, between those justices who believe our people's traditional belief in right of trial by jury is in perilous decline due to the accelerating propensity of both state and federal legislatures to adopt 'sentencing factors' determined by judges that increase the punishment beyond what is authorized by the jury's verdict, Ring, 536 U.S. at 611- 612 (Scalia, J., concurring), and those who believe Apprendi and its progeny portend disastrous practical consequences for state and federal sentencing guideline schemes developed during the past two decades through the collective experience and wisdom of the judicial, legislative, and executive branches of government. Blakely, 124 S.Ct. at 2543-2561 (O'Connor, Kennedy, and Breyer, JJ., dissenting separately). The present view of the majority of the Supreme Court regarding the crucial role of the jury in determining facts relating to elements of the crime and facts which may result in increased punishment, other than the fact of a prior conviction, undoubtedly lends support to our resolution of this case.
Friday, September 03, 2004
First Circuit mutters!!
In this crazy post-Blakely world, one amazing discovery I have made — or perhaps I should say one supposition I have had confirmed — is that many important and consequential decisions are announced in unpublished opinions. Yet another example comes again from the First Circuit, which yesterday in US v. Morgan, No. 03-1768 (1st Cir. Sept. 2, 2004), addressed key issues of waiver and plain error review of Blakely claims.
First, in contrast to a recent California decision in People v. Ochoa (noted here), the First Circuit in Morgan first suggests (though does not quite hold) that the defendant waived his Blakely claims, even though Blakely was decided after his case was appealed and argued and even though he disputed at sentencing the amount of drugs involved in his offense. Then the court ducks deciding this issue by saying that even if the defendant merely "forfeited" and did not waive his Blakely claim by not raising it sooner (i.e., before Blakely was decided), the defendant still would not prevail in his appeal under plain error analysis:
Plain error review is extremely deferential.... Under existing (post-Apprendi, pre-Blakely) First Circuit precedent, the judge is empowered in a conspiracy case to determine the exact amount of drugs that a defendant reasonably foresaw, so long as his sentence is no greater than that which could be imposed based on the total quantity of drugs that the jury had found for the conspiracy as a whole. See Derman, 298 F.3d 34, 42-43. Because the trial judge acted in accordance with circuit precedent, we cannot say plain error occurred, and we need not proceed further.
As an unpublished decision, I do not think Morgan is binding precedent that Blakely does not apply in the First Circuit. But the decision certainly is in tension with all the First Circuit district court decisions (such as Fanfan and Meuffleman) finding that Blakely renders at least portions the federal guidelines unconstitutional.
In addition, the facts of the Morgan case provide a stunning example of the potential importance of Blakely and especially the requirement that sentence-enhancing facts are found beyond a reasonable doubt. The defendant in Morgan throughout the case contested the amount of drugs that the government was trying to attribute to him, and the First Circuit affirmed the sentence by relying heavily on the fact that, under pre-Blakely law, such drug amounts only have to be found by a preponderance. Here is the first paragraph for the Morgan court's substantive analysis:
As oft-written, "[w]e review the sentencing court's factual findings, which must be supported by a preponderance of the evidence, for clear error." United States v. Lopez, 299 F.3d 84, 87 (1st Cir. 2002), citing United States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997). That "preponderance," United States v. Marks, 365 F.3d 101, 105 (1st Cir. 2004), simply requires the government to present enough information, free from the strictures of the rules of evidence which do not apply to sentencing hearings, "provided that the information has sufficient indicia of reliability to support its probable accuracy," Lopez, 299 F.3d at 89; Fed. R. Evid. 1101(d)(3), to make it more likely than not that the fact to be proved is true.
Download us_v. Morgan.pdf
Thursday, September 02, 2004
The Eleventh Circuit Speaks!!
As if we did not have enough to read, the Eleventh Circuit just handed down a decision in US v. Reese, No. 03-13117 (11th Cir. Sept. 2, 2004), in which the court joins what is now a considerable majority of federal circuits in declining to apply Blakely to the US Sentencing Guidelines. Here's the key language:
In light of Edwards and our own precedent in Sanchez, the additional cases and reasoning discussed by the Fifth Circuit in Pineiro and the Sixth Circuit in Koch, as well as the Supreme Court's express avoidance of this issue with respect to the Guidelines in the Blakely opinion itself, we decline to conclude that Blakely compels an alteration of the established view of the Guidelines as a tool for channeling the sentencing court's discretion within a crime's minimum and maximum sentence provided in the United States Code, with that maximum being the only constitutionally relevant maximum sentence. Therefore, the district court did not err in imposing the four-level enhancement pursuant to USSG § 2K2.1(b)(5). We hold that district courts should continue to sentence pursuant to the Guidelines until such time as the Supreme Court rules on this issue.
The decision includes this interesting "homage" to the idea of alternative sentencing, although now repackaged with the interesting label "protective steps":
We acknowledge that two circuits have held that Blakely does apply to the Guidelines, and that it is very difficult to predict whether the Supreme Court will apply Blakely to the Guidelines, and, if it does, whether it will hold that the Guidelines fall in their entirety or only in part. In light of this instability, we recognize that district courts might deem it wise and appropriate to take protective steps in case the Guidelines are later found unconstitutional in whole or in part. However, we are reluctant to provide specific advice with respect to what protective steps, if any, might be appropriate to reduce confusion and protect against duplicative judicial efforts should the Supreme Court so rule. We realize that such appropriate and feasible steps might vary with each individual case.
Wednesday, September 01, 2004
First official Blakely reversal in California
As Jonathan Soglin reports here over at Criminal Appeal, the first "official" California Blakely reversal happened yesterday in People v. Perry, No. A104398 (Cal. Ct. App. Aug. 31, 2004). The case involved the imposition of a four year upper-term sentence after defendant's guilty plea to "infliction of corporal injury to a cohabitant resulting in a traumatic condition." The court explained:
In this case, the trial court imposed the aggravated term based on the following factors: (1) "the defendant was armed with or used a weapon at the time of the commission of the offense;" (2) "the defendant has engaged in violent conduct which indicates he’s a danger to society;" (3) "his prior convictions as an adult are numerous and of increasing seriousness;" (4) "he was on a grant of summary probation at the time this crime was committed;" (5) "the defendant’s prior performance on summary probation has been unsatisfactory." Because under Blakely, at least four of these five factors must be determined by a jury, we conclude the trial court erred.
In expanding upon this conclusion, the court interestingly speculated on the scope of the "prior convictions" exceptions for purposes of applying factor (3) above. But then the court, after explaining its review standards, held that reversal was still required:
We need not decide whether the trial court (rather than the jury) may, after Blakely, find that defendant's crimes were of increasing seriousness, because we cannot determine, from this record, whether the four improper factors were "determinative" for the trial court. To put it another way, we cannot determine whether the trial court would have imposed the upper term based solely on defendant's increasing criminality.
Jonathan Soglin, who surely knows California law much better than I do, comments that if the California Supreme Court "follows this approach, and it should, reversals are likely in many other cases."
Tuesday, August 31, 2004
More from the Seventh Circuit (and Judge Easterbrook)
Just out from the Seventh Circuit is US v. Messino, 02-1411 (7th Cir. Aug. 31, 2004), which provides more guidance on the holdings of Blakely and Booker. Though a quick analysis is hard because there are three defendants' claims involved, it does not appear that any new ground is broken by the majority on basic guideline issues. But the opinion includes this interesting discussion about Blakey's effect (or lack of ) on forfeiture:
We have previously held that Apprendi has no effect on criminal forfeiture proceedings because forfeiture provisions have no statutory maximum. United States v. Vera, 278 F.3d 672, 673 (7th Cir. 2002). Apprendi’s statutory maximum was supplied by the statute of conviction; Blakely's is external—the statutory maximum is found not in the criminal code, but instead, the sentencing guidelines. See Booker, 2004 WL 1535858, at *1. The criminal forfeiture provisions do not include a statutory maximum; they are open-ended in that all property representing proceeds of illegal activity is subject to forfeiture. Vera, 278 F.3d at 673; U.S.S.G. § 5E1.4; 21 U.S.C. § 853. Therefore, we conclude that Blakely, like Apprendi, does not apply to forfeiture proceedings.
In addition, Judge Easterbrook dissenting in part in Messino has a number of interesting and important points to make about plain error review and also burden of proof issues. Further commentary on Judge Easterbrook's important (and contestable) insights will have to await another post late tonight.
Consecutive questions about consecutive sentencing
As I have suggested before here and here, the "prior conviction" exception should be — and perhaps through Shepard v. US will be — the next major Blakely issue for the Supreme Court to address after they resolve in Booker and Fanfan the applicability of Blakely to the federal guidelines. But two cases from the California state courts yesterday highlight that the issue of Blakely's applicability to judicial imposition of consecutive sentences will need to be directly addressed soon, too.
In People v. Vue, 2004 WL 1922504 (Cal. App. 3d Dist. Aug. 30, 2004), and People v. Lopez, 2004 WL 1922844 (Cal. App. 6 Dist. Aug 30, 2004), two different intermediate California appellate courts amended opinions to reject Blakely-based attacks on the imposition of consecutive sentences. Interestingly, in both cases the court said that, even if Blakely applies to factors used to impose consecutive sentences, the defendants' claims would be unavailing because of facts established at trial or admitted in a plea. Whatever one thinks of the specifics of these interesting rulings, they are a reminder of another important "Blakely front." (Recall that the California Supreme Court has agreed to consider this specific question in People v. Black, discussed here, though I suspect rulings in various states that will struggle with this question may not all end up consistent in their interpretations of Blakely and the Sixth Amendment.)
Seeking restitution on restitution
Because restitution orders are becoming more common in state and federal courts, many have wondered whether and how Blakely might impact such orders. As noted here, the Tenth Circuit previously spoke quickly (perhaps too quickly) to this issue in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004).
Yesterday the Ninth Circuit in US v. DeGeorge, 2004 WL 1920922 (9th Cir. Aug. 30, 2004), contributed a view on the restitution issue in a case applying an older federal law on victim restitution. Here's what the court said:
We first review the restitution order made by the district court pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. §§ 3663-3664, which is unaffected by Blakely. See, e.g., United States v. Baker, 25 F.3d 1452, 1456 (9th Cir. 1994) ("[R]estitution determinations under the VWPA are quite different from sentencing determinations under the Sentencing Guidelines.").
Because I believe that the VWPA, passed by Congress in 1982, made an award of restitution wholly discretionary, the Ninth Circuit may be right that Blakely does not affect its application. However, in 1996, Congress passed the Mandatory Victims Restitution Act (MVRA), which now makes restitution mandatory for particular crimes, and thus the Blakely analysis might be different under that statute. See generally US v. Alalade, 204 F.3d 536, 538-41 (4th Cir. 2000) (discussing changes in sentencing court's discretion after passage of MVRA). And, of course, state restitution provisions will need to be distinctly examined to see if and how their structure and terms could be impacted by Blakely.
In the end, as will be the case with so many post-Blakely issues, a lot of litigation may be needed to sort this all out.