Saturday, November 13, 2004

Noteworthy news from the midwest

I am having a grand time participating in this University of Chicago Legal Forum event.  Introducing me before my keynote address, brilliant Chicago Dean Saul Levmore, speaking with enormous wit and wisdom, gently teased me for being too complementary and generous in my blog commentary. 

Meanwhile, as I am enjoying Chicago hospitality, others in the midwest are making Blakely news.  The Seventh Circuit yesterday decided two Blakely cases: US v. Pittman, 2004 WL 2567901 (7th Cir. Nov 12, 2004) (affirming career offender sentence based on prior conviction exception); US v. McKee, 2004 WL 2567902 (7th Cir. Nov. 12, 2004) (remanding for resentencing, though staying mandate). In addition, Michael Ausbrook over at INCourts continues his comprehensive coverage of Blakely in Indiana through a series of important posts.

November 13, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States | Permalink | Comments (0) | TrackBack

Thursday, November 11, 2004

What might come of "plain error" rulings and other affirmances?

The First Circuit though its ruling yesterday in US v. Fraser, 2004 WL 2537410 (1st Cir. Nov. 10, 2004), maintained its status as a leader in affirming convictions over Blakely objections on plain error grounds. Prior discussion of the First Circuit's "plain error" Blakely work can be found here and here and here and here.

The Fraser decision and the First Circuit's "plain error" approach — as well as the steady stream of affirmances over Blakely objections coming from the Fourth and Fifth Circuits (which have, unlike the First, expressly held Blakely inapplicable to the federal system) — has me wondering what will happen to all these Blakely appeals if (when?) the Supreme Court officially declares Blakely applicable to the federal system in Booker and Fanfan. It would seem that, at that point, a Blakely error becomes plain, although waiver/forfeiture claims might still be made in particular cases.  Plus, as detailed in the Fraser case, a few of these affirmances assert — sometimes as a clear holding, sometimes in dicta — that the defendant's Blakely claims would be unavailing even if Blakely applied to the federal system.

Not being a specialist in appellate procedure, I do not know if and how some defendants now losing in the Circuits might be able to get relief after Booker and Fanfan.  (Notably, the Second Circuit has been expressly stating, in every Blakely-related case it is now deciding, that the "mandate will be held pending the Supreme Court's decision" in Booker and Fanfan.  Similarly, the Eighth Circuit is operating under an administrative orders that essentially holds all Blakely cases.)  Needless to say, if Blakely is held applicable to the federal system in Booker and Fanfan, sorting out all these "mid-stream" cases will be a huge task.

November 11, 2004 in Blakely in Appellate Courts | Permalink | Comments (4) | TrackBack

Tuesday, November 09, 2004

Friends in high places

With many thanks to Michael Ausbrook of INCourts for the head's up, I was extremely pleased to discover that I apparently have readers and fans in the Indiana Prosecuting Attorneys Council (IPAC).  Yesterday, two days before the Indiana Supreme Court hears its Blakely cases of Heath and Smylie (background here and here), IPAC filed an amicus brief in which my forthcoming article "Conceptualizing Blakely" and its discussion of an offense/offender distinction play a prominent role.  (Over at INCourts you can get more background here and here on the Indiana brief and the Heath and Smylie arguments.)

The full IPAC brief, which you can access here, is an interesting read not only for the offense/offender discussion, but also for its views on consecutive sentencing after Blakely and its assertion that Indiana "courts need not await action by the legislature to establish remedial procedures to insure compliance with Blakely."  But, of course, ever the egoist and egotist, my favorite parts of the brief are those where my "Conceptualizing Blakely" article (available at this post) gets heavy play.  And I especially liked the brief's conclusion, which states: "If Blakely is held to govern Indiana sentencing statutes making a distinction between offense facts and offender characteristics is essential to conducting a rational sentencing system."

November 9, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Saturday, November 06, 2004

More affirmances despite Blakely in the First Circuit

The First Circuit, continuing a trend highlighted earlier this week here, continues to use plain error analysis to affirm sentences imposed before Blakely over Blakely objections. See US v. Coyne, 2004 U.S. App. LEXIS 22964 (1st Cir. Nov. 3, 2004); US v. Stokes, 2004 U.S. App. LEXIS 23290 (1st Cir. Nov. 5, 2004). The Stokes ruling is particularly noteworthy because the First Circuit asserts that "even if Blakely is held to apply to the Federal Guidelines, we find no basis for reversal" because "the judge's findings — that Stokes used an AK-47 during a crime of violence, and that such a gun is extraordinarily dangerous — were 'overwhelmingly' proven."

November 6, 2004 in Blakely in Appellate Courts | Permalink | Comments (0) | TrackBack

Monday, November 01, 2004

Blakely triple play from the First Circuit

Perhaps literally as I was writing this post noting that federal circuit courts have been finding ways to affirm previously-imposed sentences even when Blakely issues were implicated, the First Circuit today affirmed three sentences over Blakely objections. Though the facts and legal specifics vary in US v. Del Rosario, 2004 WL 2426239 (1st Cir. Nov. 01, 2004); US v. Martinez Bermudez, 2004 WL 2426246 (1st Cir. Nov. 01, 2004); US v. Stearns, 2004 WL 2426261 (1st Cir. Nov. 01, 2004), in all three cases the First Circuit continues its trend of using waiver/forfeiture and plain error doctrines to reject Blakely claims raised only on appeal.

November 1, 2004 in Blakely in Appellate Courts | Permalink | Comments (0) | TrackBack

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.

November 1, 2004 in Blakely in Appellate Courts | Permalink | Comments (1) | TrackBack

Saturday, October 30, 2004

The Ninth Circuit's nimble Blakely dodge

In US v. Mayfield, 2004 WL 2415039 (9th Cir. Oct. 29, 2004), the Ninth Circuit was able to affirm a lengthy sentence in a drug case even though a two-level sentencing enhancement was made by the judge because defendant Mayfield possessed a firearm:

Here, Mayfield was sentenced to 262 months. Without the two-level upward adjustment for the firearm, the applicable sentencing range would have been 210-262 months, based on a total offense level of 36 and a criminal history category of II. Mayfield's sentence of 262 months falls within the upper-most part of this range. Therefore, the district court did not violate the principles of Blakely because the court could have imposed a 262-month sentence solely on the basis of the facts reflected by the jury's verdict. Whether the court actually would have sentenced Mayfield to a term of imprisonment of 262 months in the absence of the two-point enhancement is unknown. Nonetheless, because the sentence imposed by the district court was within the applicable Guidelines sentencing range under the facts found by the jury, the 262-month sentence imposed by the court does not offend the Sixth Amendment as interpreted by the Supreme Court in Blakely, or by our court in Ameline.

October 30, 2004 in Blakely in Appellate Courts | Permalink | Comments (0) | TrackBack

Wednesday, October 20, 2004

Seeking news on "alternative sentencing"

Last month, in the wake of the Fourth Circuit's ruling in Hammoud which recommended that district judges "announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only," I wondered here whether anyone is keeping track of alternative sentences announced in the Fourth Circuit and elsewhere after Blakely. I continue to hope that somebody is tracking the alternative sentencing story — perchance the US Sentencing Commission — because data on how judges are sentencing when "treating the guidelines as advisory only" will likely be very valuable no matter what the Supreme Court does in Booker and Fanfan.

I am also wondering whether the Fourth Circuit's recommendation is actually being followed. Recall that US District Joseph Goodwin of the Southern District of West Virginia thoughtfully explained here why he considered alternative sentencing inappropriate, and that Professor Ronald Wright reported back in August here that most district judges in the Fourth Circuit had not been announcing alternative sentences.

I am now thinking about these matters because an unpublished decision by the Fourth Circuit yesterday suggests that the circuit court itself is not a true believer in alternative sentencing. In US v. Johnson, 2004 U.S. App. LEXIS 21707 (4th Cir.Oct. 19, 2004), the court dropped a footnote in which, after summarily rejecting a Blakely claim by citing Hammoud, the court said it did "not deem it necessary to remand the case so that the district court may announce an alternative sentence."

I continue to suspect that alternative sentencing works better in theory than in practice, but I obviously have no direct "in the courtroom" experience to support this supposition. I hope others working in the Fourth Circuit or elsewhere might use the comments to share any "in the courtroom" experiences with alternative sentencing.

October 20, 2004 in Blakely in Appellate Courts | Permalink | Comments (2) | TrackBack

Thursday, October 14, 2004

The importance of waiver

As detailed here, the Office of the Federal Public Defender in the Northern District of Texas filed an amicus brief in Booker and Fanfan to discuss waiver issues, even though such issues are not directly before the High Court. The brief essentially argued that a defendant cannot and does not waive any Blakely rights by simply admitting facts in a plea agreement.

Perhaps the FPD ought to have lodged a copy of this brief in the Eighth Circuit, because in an unpublished case earlier this week the court did just what this amicus brief warned against. In US v. Martinez-Salinas, 2004 U.S. App. LEXIS 21153 (8th Cir. Oct. 12, 2004), the court summarily rejected the defendant's Blakely argument by noting simply that his (pre-Blakely) "plea agreement included stipulations as to drug quantity, protected location, and firearm possession."

Meanwhile, in the same part of the country, we get a waiver-related snippet from the Supreme Court of Colorado in Hulett v. Colorado, 2004 WL 2283440 (Colo. Oct. 12, 2004). The Court in Hulett simply denied certiorari, but Justices Martinez and Bender indicated that they "would grant as to the following issues: [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."

October 14, 2004 in Blakely in Appellate Courts | Permalink | Comments (3) | TrackBack

Tuesday, October 12, 2004

The Minnesota courts officially address Blakely

It is a big Blakely day in the states. Following the important decisions out of New Jersey (noted here), we also today get noteworthy rulings from Minnesota.

For quite some time, the Minnesota Courts of Appeals have been just remanding cases raising Blakely issues, as noted here (and see also today's State v. Conley, 2004 WL 2283421, (Minn. App. Oct. 12, 2004). Of course, these decision have been against the backdrop of the reports by the Minnesota Sentencing Guidelines Commission (available here and here) which concede that there are Blakely-problematic elements of state law.

Today, officially, the Minnesota Court of Appeals holds, in two published decisions, that Blakely invalidates upward departures and sentences under Minnesota's "career offender" statute. The decisions in Minnesota v. Conger, A03-1771 (Minn. App. Oct. 12, 2004), and Minnesota v. Mitchell, A03-110 (Minn. App. Oct. 12, 2004), are both quite interesting reads, especially because the state apparently has been arguing that Blakely is inapplicable in Minnesota because the "Minnesota sentencing guidelines are not mandatory but merely 'advisory to the district court.'" In Conger, the court reject this claim in the following passage:

[E]ven though the sentencing guidelines are advisory to the district court, and a person convicted of a felony does not have a right to receive the presumptive, fixed sentence established by the Sentencing Guidelines Commission for that person's offense, a district court that does not impose the presumptive, fixed sentence is required to make findings of fact that support the court's reasons for departing from the presumptive sentence. This means that under the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.

October 12, 2004 in Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Friday, October 08, 2004

Bail and Blakely/Booker

With many thanks to Crime & Federalism's post here, we now have Judge Posner's wisdom, writing for a unanimous three-judge panel, about when in light of Booker a criminal defendant is entitled to release pending appeal. Here, in lots of detail, is what Judge Posner explains in US v. Lagiglio, No. 01 CR 348-7 (7th Cir. Oct. 8, 2004), a case involving a 41 month sentence for a tax offense:

LaGiglio moved us to order her released pending appeal, arguing that Booker caps her sentence at 12 months and she has already been in prison that long. We directed the district judge to revisit his denial of her motion for release in light of the intervening decisions. He ruled that her sentence was unlawful under Booker and ordered her released, precipitating this appeal by the government.

The government points out that LaGiglio is entitled to be released only if she is likely to be resentenced to a term of imprisonment shorter than the length of time that she will have been in prison by the time her appeal is decided. The Bail Reform Act authorizes release pending appeal only if (so far as bears on this case) the appeal "raises a substantial question of law or fact likely to result in . . . a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." 18 U.S.C. § 3143(b)(1)(B)(iv). An imprisoned person is not to be released pending further proceedings if it is a certainty that however those proceedings are resolved, she will have to be returned to prison....

The district judge did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.

Should the judge be minded to release LaGiglio, he will have to consider the government’s argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.

October 8, 2004 in Blakely in Appellate Courts | Permalink | Comments (2) | TrackBack

Thursday, September 30, 2004

The First Circuit on prior convictions and plain error

The First Circuit yesterday continued its traditional of saying a lot about Blakely — and rejecting Blakely claims — without making a direct ruling on Blakely's applicability to the federal guidelines (previous examples are here and here and here). In US v. Cordoza-Estrada, 2004 WL 2179594(1st Cir. Sept. 29, 2004), the Court rejected a Blakely claim relying on both the prior conviction exception and on "plain error" doctrine:

Blakely did not disturb the distinction between "the fact of a prior conviction" and other facts that "increase the penalty for a crime beyond a prescribed maximum." Blakely, 124 S.Ct. at 2536 (quoting and applying the Apprendi rule stated above). Accordingly, there was no error in the trial judge's consideration of the prior conviction. Even if there were such an error, Appellant has failed to demonstrate that it affected substantial rights of his because there is no dispute that he had a conviction....

Appellant has also launched a broadside attack on the validity of the Sentencing Guidelines under the Sixth Amendment. Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was "plain."...

In determining whether the error was plain, the Supreme Court has explained: "Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be 'plain' at the time of appellate consideration." Johnson v. United States, 520 U.S. 461, 468 (1997). The question of the continuing validity of the Sentencing Guidelines is an issue that has roiled the federal courts, and split circuits. [Citing Booker, Hammoud, and Koch]. Whatever the outcome, the answer is neither plain nor obvious at the time of this appeal.

Because the trial judge's sentence was consistent with precedent, and the current law is unsettled, we conclude that there is no plain error.

September 30, 2004 in Blakely in Appellate Courts | Permalink | Comments (2) | TrackBack

Monday, September 27, 2004

Downward departures, Koon and Blakely

The West merits some sort of award for being the most interesting arena for sentencing developments these days. (Consider news here and here from California alone, and then throw in Judge Cassell's work in Utah and Blakely happenings in Oregon and Colorado). And, of course, thoughtful readers of the blog perhaps now realize that I think the Ninth Circuit in Ameline (details here) has been the closest to getting Blakely "right" for the federal system.

Today, the Ninth Circuit today issued this order and amended opinion in US v. Rivas-Gonzalez, an interesting case (from Montana) in which the district court downward departed "by eight levels (from seventeen to nine), which even exceeded by three levels the degree of departure that Rivas had requested" based on "cultural assimilation." The Ninth Circuit reversed this downward departure in a pre-Blakely decision, and today's action only slightly amended the decision and reported on the circuit's decision not to go en banc.

The case is interesting on the facts, especially in light of my recent posts here and here about sentencing windfalls and the possibility that purely advisory guidelines might create lower overall sentences. In addition, the dissents by Judges Pregerson and Wardlow contain interesting discussions of the Supreme Court's decision in Koon v. US, 518 U.S. 1 (1996), and departure decision-making, and Judge Pregerson's dissent for three judges also has a very interesting footnote about the possible impact of Booker and Fanfan.

September 27, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, September 22, 2004

First Circuit plain error approach to Blakely

Proving yet again (as stressed here) that Blakely justice and procedure now depends very much on the Circuit in which a case is litigated, in US v. Savarese, No. 04-1099 (1st Cir. Sept. 22, 2004), the First Circuit again gave a Blakely claim short shrift. In Savarese, similar to the approach it took in Morgan (discussed here), the First Circuit relies on plain error doctrine to reject a Blakely claim:

[W]e conclude here that, even if Blakely is held to apply to the Federal Guidelines, there is no basis for reversal in this case.

The appellant did not raise the jury trial issue in the district court, nor did he request a jury trial with respect to factual issues relating to the sentencing. Thus, we review the district court’s enhancement of Savarese's sentence for plain error....

[T]he defendant did not dispute the factual basis underlying any of the enhancements. Under the Supreme Court’s decision in Johnson [v. United States, 520 U.S. 461 (1997)], we conclude that this forecloses a finding of plain error.... [T]he district court’s error under Blakely, if any, in finding the facts underlying the enhancements of the defendant’s sentence was not plain error.

September 22, 2004 in Blakely in Appellate Courts | Permalink | Comments (1) | TrackBack

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.

September 22, 2004 in Blakely in Appellate Courts | Permalink | Comments (0) | TrackBack

Wednesday, September 15, 2004

Circuit contrasts: variations in appellate justice

As detailed in the three Senators' amicus brief filed in Booker and Fanfan (available here, commentary here), guideline reforms sought to "eliminate the intolerable disparities that had plagued the federal sentencing system." Yet today we have stunning disparities in the application of the federal guidelines in the wake of Blakely. Even putting aside all the noted variations from district to district and case to case, on the circuit level alone on just the most basic Blakely question we have a five-way circuit split:

1. Blakely has been deemed, at least for the time being, wholly inapplicable to the federal guidelines in the Second, Fifth, and Eleventh Circuits;
2. Blakely has been deemed, at least for the time being, inapplicable to the federal guidelines, but an order recommending the announcement of an alternative sentence is in place in the Fourth and Sixth Circuits;
3. Blakely has been deemed applicable to the federal guidelines, but severability questions have been left open, in the Seventh Circuit;
4. Blakely has been deemed applicable to the federal guidelines and the guidelines deemed severable in the Ninth Circuit; and
5. Blakely's impact on the federal guidelines is presently unresolved in the First, Third, Eighth, Tenth and DC Circuits.

And beyond these critical basics, there are and surely will continue to be variable rulings on "smaller" Blakely questions like plain error, waiver, restitution, indictment practices and so on and so on (see general background here and here and here)

Moreover, as all good lawyers know, circuit differences are reflected not only in doctrine, but also in attitude. Indeed, I sometimes perceive a certain tone in some Blakely rulings, and this tone often varies from circuit to circuit. Two cases handed down yesterday perhaps provide an example of what I mean.

In US v. Pree, 2004 WL 2039274 (7th Cir. Sept. 14, 2004), the Seveth Circuit seems to go to extraordinary lengths to preserve a Blakely claim for a defendant who did not even raise it:

As a final matter, we address an issue not raised by the parties — the constitutionality of the sentencing enhancement Ms. Pree received for obstruction of justice. Ms. Pree's case was briefed and argued prior to the Supreme Court's decision in Blakely [and this court's holding] in Booker that enhancements imposed by the court without a jury finding violate the Sixth Amendment.

Ms. Pree does not address to this court, nor can we find evidence in the record to indicate, that she addressed before the district court the constitutionality of her sentencing enhancement. In light of the sea change in federal sentencing law wrought by Blakely and Booker, we think it appropriate to take note of the possibility of an unconstitutional sentencing enhancement. Given the precedent in this circuit prior to Blakely, we think it would be unfair to characterize Ms. Pree as having waived a challenge to the validity of her sentencing enhancement.

The Supreme Court has granted certiorari in Booker and will consider, in the very near future, the application of Blakely to the United States Sentencing Guidelines and therefore the correctness of this court's decision in Booker. We therefore shall stay our mandate in this case until the Supreme Court has rendered its decision in Booker. Within fourteen days of the Supreme Court's decision in Booker, each party may submit a memorandum presenting its views on the application of that decision to this case.

[Footnote 17. It appears that Ms. Pree's enhanced sentence will be completed prior to the decision of the Supreme Court. Any matter with respect to bail should be addressed to the district court.]

But in Burrell v. US, 2004 WL 2039420 (2d Cir. Sept. 14, 2004), the Second Circuit seems to go to extraordinary lengths in a footnote to extinguish an arguable Blakely claim:

Despite the district court's failure to award a certificate of appealability on the Apprendi point, Burrell argues it in a pro se supplemental brief filed with this court. We may, of course, amend a COA to include an issue not certified by the district court ... [but we] decline to do that in this case because (1) Burrell's Apprendi claim is foreclosed by our [prior Apprendi] decisions ... which we have recently declined to reconsider despite the Supreme Court's decision in Blakely; (2) even if Burrell could establish an Apprendi error in his case, the law is clear that Apprendi cannot be applied retroactively on a collateral challenge to a conviction; and (3) an Apprendi error would, in any event, be harmless in this case because it would not result in the reversal of Burrell's conviction, only resentencing, since (a) he has completed serving the originally imposed term of incarceration, and (b) it is the fact of his conviction not the length of his sentence that now affects his deportation.

Of course, the defendant in Pree obviously has a much, much stronger case on the merits than the defendant in Burrell, and different circuits might have made similar rulings in each individual case. But I do think these cases help highlight the possibility that general attitudes about Blakely claims may impact future cases as much as the intricacies of certain doctrines.

September 15, 2004 in Blakely in Appellate Courts | Permalink | Comments (1) | TrackBack

Tuesday, September 14, 2004

Covering all the bases

In an interesting twist on the alternative sentencing idea (previously detailed here and here), the Seventh Circuit in US v. Schaefer, 2004 U.S. App. LEXIS 19166 (7th Cir. Sept. 13, 2004), recently decided that "[a]lthough Blakely and Booker necessitate our remand of this case to the district court for resentencing, we will nonetheless address Schaefer's arguments under the Guidelines ... in the interest of judicial economy in the event that the Supreme Court may subsequently decide some other fate for the federal Guidelines than that indicated in Booker."

After some thoughtful but fairly standard pre-Blakely analysis, the Seventh Circuit holds that the case is remanded due to Booker, but "in the event that the Supreme Court decides that Blakely does not invalidate the federal sentencing Guidelines, we affirm" Schaefer's sentence. And at the very end of its ruling, the Seventh Circuit drops this interesting footnote:

Schaefer has also requested immediate release under bond from incarceration, since he has already served what would presumably be his sentence if the Guidelines are invalid. Based on the present state of the law in this circuit, this seems to be a meritorious request, but we leave this decision to the district court on remand. In this regard, the district court might wish to take note of Schaefer's earlier positions in this case with respect to unchallenged aspects of his sentence. See Booker, 375 F.3d at 510 (interpreting Blakely to allow sentences to be imposed based on "what the jury found or the defendant admitted or, as here, did not contest") (emphasis added).

September 14, 2004 in Blakely in Appellate Courts | Permalink | Comments (0) | TrackBack

Sunday, September 12, 2004

Head-counting in an alternative universe

Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here and commentary here) includes a brief explanation for the Circuit's recommendation that district judges "announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only." This explanation helps me understand a bit better why a majority of the Fourth Circuit believes that "announcing — not imposing — a non-guidelines sentence at the time of sentencing will serve judicial economy," even though the court recognizes that the "announcement of a non-guidelines sentence may require the district court to consider issues not generally pertinent in guidelines sentencing, thereby requiring the investment of additional time at the sentencing hearing."

But, like other aspects of the Hammoud decision, the alternative sentencing explanation leaves me with more questions than answers. First, in light of the Fourth Circuit's recommendation, shouldn't the disposition of the Hammoud case been a remand for the announcement of an alternative sentence? Wouldn't it be useful, to paraphrase the Fourth Circuit, for "the district court and the parties [to make] at least substantial progress toward the determination of a non-guidelines sentence [in Hammoud's case], at a time when the facts and circumstances [are still] clearly in mind"?

Second, Judge Widener's dissent to the "alternative sentence" portion of the Hammoud ruling asserts that "even if the recommended advisory sentencing is discretionary, about which I have some doubt, in my opinion, it is inadvisable." This statement and the majority's discussion raises, but does not answer, the question of whether district courts may lawfully refuse to follow the alternative sentencing recommendation. May Judge Goodwin continue to refuse to impose alternative sentences (as thoughtfully explained here), or must he now get in line? The Hammoud majority's oblique footnote addressing Judge Goodwin's serious concerns about alternative sentencing does not answer this question. And since Ron reported here that most district judges in the Fourth Circuit have not been announcing alternative sentences, this is a question that may be on the minds of many district judges in the Fourth Circuit.

Finally, I have a distinct empirical/practical question: Is anyone keeping track of how many and what sorts of alternative sentences have been announced in the Fourth Circuit and elsewhere after Blakely? I hope and expect the US Sentencing Commission is collecting this data, and the recent memo from the Judicial Conference Criminal Law Committee discussed here suggests that the federal Bureau of Prisons might also be tracking these issues. Recall also that DOJ through the Comey memo (available here) urged its prosecutors to seek alternative sentences and indicated it would be collecting lots of data during this chaotic period.

Whomever may be keeping track of alternative sentencing data, I sincerely hope that this data can be systematically tallied and made available to the public as soon as possible. I think I can fairly speak for the academic and research community when I say that many academics and researchers will have an interest in examining and analyzing alternative sentencing data.

September 12, 2004 in Blakely in Appellate Courts, Federal Sentencing Guidelines, Severability of FSG | Permalink | Comments (4) | TrackBack

Thursday, September 09, 2004

The power of separation of powers?

Judge J. Harvie Wilkinson's concurrence in the Fourth Circuit's Hammoud ruling provides a fascinating "separation of powers" arguments for why Blakely does not apply to the federal guidelines. Though I will need to re-read Judge Wilkinson's rich opinion to appreciate all it is saying, I think I have the basic logic: (1) the judiciary made the federal guidelines, (2) reading Blakely to require proof of guideline factors to a jury beyond a reasonable doubt converts these factors into de facto elements of new crimes, (3) but only the legislature can properly create and define crimes.

This is interesting logic, though it raises almost as many questions as the majority opinion in Hammoud (discussed here). First, though the US Sentencing Commission is nominally in the judicial branch, I have highlighted before that the USSC both in design and in operation is far more like, in Justice Scalia's words, a "junior-varsity Congress" than just a group of judges making sentencing standards for themselves. Second, given that the courts have consistently and widely held that the Ex Post Facto Clause applies to changes in the guidelines (see SG Brief at 25), haven't the courts already concluded that the guidelines do create de facto elements of new crimes?

Finally, I think there is a "through the looking glass" quality to this separation of powers argument, especially given the Framers' apparent interests in democratic checks and balances and in safeguarding individual rights through the Bill of Rights. The implication of Judge Wilkinson's argument, as I understand it, is that if and when Congress creates binding sentencing laws though traditional legislative means (securing approval by both houses and signature by the President), then defendants have the benefits of full constitutional procedural rights during the enforcement of those laws. But if and when a legislature finds a way to writing binding sentencing laws through a non-legislative means (e.g., creating an agency whose rules will be legally binding despite never being traditionally enacted), then defendants have fewer procedural rights in the enforcement of those laws. Whatever one thinks of structural constitutional arguments, I doubt the Framers (or Justice Scalia) ultimately imagined that defendants would get less procedural rights in the application of those laws that are created in less democratically accountable ways.

September 9, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

"Statutory" analysis in Hammoud

Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here) puts great emphasis on the use of the phrase "statutory maximum" in Blakely and Apprendi, and he thus finds Blakely inapplicable to the federal guidelines because they are not statutes. In Wilkins words, "Blakely applies to the guidelines only if the Blakely Court redefined the term 'statutory maximum' to include any fact that increases a defendant's potential sentence." But, says Wilkins, "[o]n close examiniation of Blakely, we conclude that the Supreme Court simply applied — and did not modify — the rule articulated in Apprendi."

Though I suppose this is a plausible reading of the Blakely decision, on close examination it raises a lot of questions. First, of course, if the Fourth Circuit is reading Blakely properly, one must wonder why Justices O'Connor and Breyer made so much of a fuss in their Blakely dissents. Obviously, given the energy they spend lamenting the apparent demise of the federal guidelines, Justices O'Connor and Breyer obviously thought Blakely was modifying the rule in Apprendi.

Second, a close reading of Justice Scalia's opinion in Blakely reveals that after the key passage (at slip op. 7) where Justice Scalia (re)defines "statutory maximum," he does not once use that apparently critical phrase again in the final 10 pages of his opinion for the Court. Instead, Justice Scalia speaks of "what state law authorized" (slip op. 8), and not "what a state statute authorized"; he speaks of the "jury's traditional function of finding the facts essential to lawful imposition of the penalty" (slip op. 13), not of the jury's role "finding the facts essential to statutory imposition of the penalty;" he speaks of a defendant's "legal right to a lesser sentence" (slip op. 13), not of a "statutory right to a lesser sentence;" he speaks of "all facts legally essential to the punishment" (slip op. 17), not of "all facts statutorily essential to the punishment." In other words, if Justice Scalia and the others in the Blakely majority were trying not to modify the meaning of Apprendi, the Court's opinion should have been crafted much more carefully.

Finally, as suggested here and here, the Fourth Circuit's conclusion that Blakely "simply applied" Apprendi may have some significant retroactivity consequences. The opinion in many ways intimates that the holding in Blakely was dictated by Apprendi (see p. 66: "in Blakely the Court simply applied the rule of Apprendi to a new set of facts "). But as these recent North Carolina rulings document, at least one Fourth Circuit state has a statutory sentencing guideline system just like the one declared unconstitutional in Blakely. After Hammoud, do all North Carolina prisoners who received enhancements and had not-yet final convictions in June 2000 (when Apprendi was decided) now have strong claims for Blakely relief in the federal courts (even if the state courts won't grant such relief)?

September 9, 2004 in Applicability of Blakely to FSG, Blakely in Appellate Courts, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack