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 Applicability of Blakely to FSG, 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.