Monday, July 12, 2004
The 5th Circuit Speaks (and we have a circuit split)!!
I have just heard that the Fifth Circuit just held the federal sentencing guidelines constitutional in US vs. Pineiro, no. 03-30437. Here's the link. Chief Judge King, writing for a unanimous panel that included Judges Barksdale and Pickering, says at the outset:
This court assuredly will not be the final arbiter of whether Blakely applies to the federal Guidelines, but the unremitting press of sentencing appeals requires us to produce a decision. We have undertaken to discern, consistent with our role as an intermediate appellate court, what remains the governing law in the wake of Blakely. Having considered the Blakely decision, prior Supreme Court cases, and our own circuit precedent, we hold that Blakely does not extend to the federal Guidelines and that Pineiro’s sentence did not violate the Constitution.
In Pineiro, the presentence report held the defendant responsible for amounts of drugs much greater than the amounts found by the jury at trial and further recommended a sentence enhancement for his leadership role in conspiracy. [N.B.: iffy facts on the leadership role issue suggests that this is a case where the burden of proof, and not just the fact-finder, could be significant]. The Fifth Circuit worked through all the past federal decisions finding the federal guidelines scheme constitution and explained:
Undeniably, Blakely strikes hard at the prevailing understanding of the Guidelines. The Guidelines, unlike Washington’s Sentencing Act, are not statutes, but they are nonetheless binding on sentencing courts. ... But Blakely, which did not actually involve the federal Guidelines, is not the only case that we must consider. While we are bound to follow Blakely, as an inferior court we are also bound to examine the Supreme Court’s prior pronouncements and guidance regarding the nature of the Guidelines. That examination reveals that a number of the Court’s prior cases, including cases that reject various constitutional challenges to the Guidelines, are founded on the proposition that there are constitutionally meaningful differences between Guidelines ranges and United States Code maxima....
These cases, and others like them, do not discuss the Sixth Amendment right to a jury trial, and we do not pretend otherwise. What is true, however, is that the Supreme Court has repeatedly blessed the Guidelines and upheld them against sundry constitutional challenges, often employing the proposition that the United States Code, and not the Guidelines, establishes maximum sentences for offenses. The Supreme Court’s cases, and ours, have articulated a particular vision of the interaction between the Guidelines and the United States Code, and it is a vision that has held constitutional meaning. To reject that view of the Guidelines would not directly 'overrule' any Supreme Court holding--a prerogative reserved unto the Court itself--but it would plainly create an unsettling tension with them....
Given the nature of the Guidelines, we think the better view--and one that respects the prior decisions of both the Supreme Court and this court--is that the relevant 'offenses' and 'maximum punishments' are those defined and authorized by Congress in the United States Code. Judicial findings under the Guidelines that set sentences within that authorized range therefore do not offend the Constitution.
Friday, July 09, 2004
The 7th Circuit speaks!!
Per Judge Posner, with Judge Easterbrook dissenting, here is the opinion in US v. Booker. WOW, WOW, WOW!
UPDATE: I have just finished Judge Posner's (unsurprisingly brilliant) opinion for the majority in Booker. Here's his helpful concluding paragraph:
To summarize: (1) The application of the guidelines in this case violated the Sixth Amendment as interpreted in Blakely; (2) in cases where there are no enhancements—that is, no factual findings by the judge increasing the sentence—there is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety; (3) we do not decide the severability of the guidelines, and so that is an issue for consideration on remand should it be made an issue by the parties; (4) if the guidelines are severable, the judge can use a sentencing jury; if not, he can choose any sentence between 10 years and life and in making the latter determination he is free to draw on the guidelines for recommendations as he sees fit; (5) as a matter of prudence, the judge should in any event select a nonguidelines alternative sentence.
And now I've just finished Judge Easterbrook's (unsurprisingly brilliant and also cheeky) opinion in dissent. Here's his telling final paragraph:
Today’s decision will discombobulate the whole criminal-law docket. I trust that our superiors will have something to say about this. Soon.
The 11th Circuit speaks again!
Setting the pace from the other circuits, I just got word that the 11th Circuit now has a second Blakely opinions in the books. Here, in In re Dean, the 11th Circuit has held that Blakely cannot form the basis for authorizing a second or successive habeas filing. Apparently this is "another nationwide first," as far as we can tell.
Thursday, July 08, 2004
The 11th Circuit Speaks!!
I just got word of what I believe is the first federal Court of Appeals decision discussing Blakely. Based on a super-quick read, it does not seem to be a blockbuster, because the 11th Circuit is just saying here in US v. Spero that Blakely "does not undermine the validity of minimum mandatory sentences, at least not where the enhanced minimum does not exceed the non-enhanced maximum." Nevertheless, it still seems that the 11th Circuit today gets the honor of being, in this way, the first circuit.
Thursday, July 01, 2004
Rapid-fire post-Blakely rulings
Though it seems most federal district courts put sentencings on hold while everyone tries to figure out Blakely, Judge Joseph Goodwin of the Southern District of West Virginia can be added to the list of judges who believe there is no time like the present. Here, in a thoughtful and thorough opinion in US v. Shamblin, Judge Goodwin concluded that a defendant involved in significant drug operation --- who would have received a life sentence before Apprendi and 20 years before Blakely --- could only now be sentenced to a term of 12 months! Interestingly, in footnote 11 of this opinion, Judge Goodwin expressly rejects Judge Cassell's conclusions in US v. Croxford about the right way to sentence now in light of the conclusion that Blakely applies to the federal guidelines.
Meanwhile, I have heard from a few lawyers that some federal circuit courts are, sua sponte, asking for expedited supplemental briefing on the impact of Blakely on pending guideline appeals. I wonder which circuit will be the first to rule on Blakely, and I find especially intriguing the idea of another summer session for the Supremes raised here by the smart folks at Goldstein & Howe on their great SCOTUS blog.