Sentencing Law and Policy

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.

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

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.

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.")

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.)

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.

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")

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.

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.

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.

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:

FEDERAL CASES

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."

STATE CASES

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."

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.

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.

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.

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.

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."

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."

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.

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.

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.

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: [1] 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). [2] Whether sentences can be aggravated on the basis of earlier charges that were dismissed."

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.

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.

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.

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.

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.

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.

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 wi