Thursday, September 09, 2004
"Statutory" analysis in Hammoud
Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here) puts great emphasis on the use of the phrase "statutory maximum" in Blakely and Apprendi, and he thus finds Blakely inapplicable to the federal guidelines because they are not statutes. In Wilkins words, "Blakely applies to the guidelines only if the Blakely Court redefined the term 'statutory maximum' to include any fact that increases a defendant's potential sentence." But, says Wilkins, "[o]n close examiniation of Blakely, we conclude that the Supreme Court simply applied — and did not modify — the rule articulated in Apprendi."
Though I suppose this is a plausible reading of the Blakely decision, on close examination it raises a lot of questions. First, of course, if the Fourth Circuit is reading Blakely properly, one must wonder why Justices O'Connor and Breyer made so much of a fuss in their Blakely dissents. Obviously, given the energy they spend lamenting the apparent demise of the federal guidelines, Justices O'Connor and Breyer obviously thought Blakely was modifying the rule in Apprendi.
Second, a close reading of Justice Scalia's opinion in Blakely reveals that after the key passage (at slip op. 7) where Justice Scalia (re)defines "statutory maximum," he does not once use that apparently critical phrase again in the final 10 pages of his opinion for the Court. Instead, Justice Scalia speaks of "what state law authorized" (slip op. 8), and not "what a state statute authorized"; he speaks of the "jury's traditional function of finding the facts essential to lawful imposition of the penalty" (slip op. 13), not of the jury's role "finding the facts essential to statutory imposition of the penalty;" he speaks of a defendant's "legal right to a lesser sentence" (slip op. 13), not of a "statutory right to a lesser sentence;" he speaks of "all facts legally essential to the punishment" (slip op. 17), not of "all facts statutorily essential to the punishment." In other words, if Justice Scalia and the others in the Blakely majority were trying not to modify the meaning of Apprendi, the Court's opinion should have been crafted much more carefully.
Finally, as suggested here and here, the Fourth Circuit's conclusion that Blakely "simply applied" Apprendi may have some significant retroactivity consequences. The opinion in many ways intimates that the holding in Blakely was dictated by Apprendi (see p. 66: "in Blakely the Court simply applied the rule of Apprendi to a new set of facts "). But as these recent North Carolina rulings document, at least one Fourth Circuit state has a statutory sentencing guideline system just like the one declared unconstitutional in Blakely. After Hammoud, do all North Carolina prisoners who received enhancements and had not-yet final convictions in June 2000 (when Apprendi was decided) now have strong claims for Blakely relief in the federal courts (even if the state courts won't grant such relief)?
So much to say, so much to say...
In addition to ensuring fans of the Dave Matthews Band will now visit this blog, the title of this post accurately describes both the Fourth Circuit's opinions in Hammoud — all 145 pages — and my own feelings about commenting on the Fourth Circuit's work in Hammoud. Let me here do some preliminary commentary, and allow later posts to zero in on various specifics.
First, let me apologize for giving the Fourth Circuit so much grief about taking so long to issue this opinion. I was not aware that there were so many serious and challenging non-Blakely issues that the court had to confront in Hammoud. (The Blakely discussion does not even start until page 48!) I am still a bit troubled by the court's decisions to rush out an opaque Blakely order and take over a month to provide more guidance, but the complicated legal circumstances in Hammoud make this procedure a bit more understandable.
Second, let me note that the author of the main opinion in Hammoud, Chief Judge William W. Wilkins was the original chair of the original US Sentencing Commission that drafted the original guidelines. Also, as we saw in the Koch en banc ruling from the Sixth Circuit, the Hammoud decision is the near judicial equivalent of a "party-line vote." If my calculations are correct, all three judges joining the Hammoud dissent were appointed by a Democratic President (assuming Judge Gregory is counted as a Clinton appointee), while seven of nine judges finding Blakely inapplicable to the federal guidelines were appointed by Republican Presidents.
Third, let me highlight that, no matter what one thinks about Blakely and its applicability to the federal guidelines, the basic facts of Hammoud's sentencing have to give one pause. As Judge Motz rightly stresses at the start of her dissent, Hammoud's sentence without reliance on facts found by the judge by a preponderance would have been 57 months. But judicial fact-finding required under the federal guidelines led the district judge to increase Hammoud's sentence of less than 5 years to a sentence of 155 years!
Wednesday, September 08, 2004
The 4th Circuit Speaks!!
Perhaps proving the old saying "be careful what you wish for," my long-standing wish to see what the Fourth Circuit has to say to explain its order in Hammoud has been granted with this 145 pages opinion! No wonder it took a while to write (it will likely take a while just to download it). Here is the complicated line up:
Chief Judge Wilkins wrote the opinion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King, Shedd, and Duncan joined and in which Judge Widener joined as to all except Part VII.C.
Judge Wilkinson wrote a concurring opinion. Judge Shedd wrote a concurring opinion. Judge Widener wrote a concurring and dissenting opinion. Judge Motz wrote a dissenting opinion, in which Judges Michael and Gregory joined. Judge Gregory wrote a dissenting opinion.
Analysis to follow late tonight.
September 8, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
Saturday, September 04, 2004
Another possible Blakely front and great dicta
Though not formally a Blakely case, the South Carolina Supreme Court in a decision last week was apparently influenced by Blakely when considering an intricate issue of appellate procedure. In State v. Brown, 2004 WL 1948696 (S.C. Aug. 30, 2004), the Court was considering whether and when an appellate court, after reversing a conviction due to lack of evidence on one element of the offense, should be able to remand the case for entry of judgment and sentencing on a lesser included offense. The Brown court provides an extended and quite interesting discussion of the appropriateness of so-called "sentencing remands," and it notes along the way that "[n]umerous state and federal courts have approved of the practice of a sentencing remand in appropriate circumstances."
The court in Brown ultimately concludes that when a conviction is reversed due to insufficient evidence, a court should consider remanding a case for sentencing on a lesser included offense only in very limited circumstances, and along the way the court cites Apprendi, Ring, and Blakely in support of its ruling. In so doing, the court drops this choice footnote:
We recognize the vigorous debate, as expressed in Apprendi, Ring, and Blakely, between those justices who believe our people's traditional belief in right of trial by jury is in perilous decline due to the accelerating propensity of both state and federal legislatures to adopt 'sentencing factors' determined by judges that increase the punishment beyond what is authorized by the jury's verdict, Ring, 536 U.S. at 611- 612 (Scalia, J., concurring), and those who believe Apprendi and its progeny portend disastrous practical consequences for state and federal sentencing guideline schemes developed during the past two decades through the collective experience and wisdom of the judicial, legislative, and executive branches of government. Blakely, 124 S.Ct. at 2543-2561 (O'Connor, Kennedy, and Breyer, JJ., dissenting separately). The present view of the majority of the Supreme Court regarding the crucial role of the jury in determining facts relating to elements of the crime and facts which may result in increased punishment, other than the fact of a prior conviction, undoubtedly lends support to our resolution of this case.
Friday, September 03, 2004
First Circuit mutters!!
In this crazy post-Blakely world, one amazing discovery I have made — or perhaps I should say one supposition I have had confirmed — is that many important and consequential decisions are announced in unpublished opinions. Yet another example comes again from the First Circuit, which yesterday in US v. Morgan, No. 03-1768 (1st Cir. Sept. 2, 2004), addressed key issues of waiver and plain error review of Blakely claims.
First, in contrast to a recent California decision in People v. Ochoa (noted here), the First Circuit in Morgan first suggests (though does not quite hold) that the defendant waived his Blakely claims, even though Blakely was decided after his case was appealed and argued and even though he disputed at sentencing the amount of drugs involved in his offense. Then the court ducks deciding this issue by saying that even if the defendant merely "forfeited" and did not waive his Blakely claim by not raising it sooner (i.e., before Blakely was decided), the defendant still would not prevail in his appeal under plain error analysis:
Plain error review is extremely deferential.... Under existing (post-Apprendi, pre-Blakely) First Circuit precedent, the judge is empowered in a conspiracy case to determine the exact amount of drugs that a defendant reasonably foresaw, so long as his sentence is no greater than that which could be imposed based on the total quantity of drugs that the jury had found for the conspiracy as a whole. See Derman, 298 F.3d 34, 42-43. Because the trial judge acted in accordance with circuit precedent, we cannot say plain error occurred, and we need not proceed further.
As an unpublished decision, I do not think Morgan is binding precedent that Blakely does not apply in the First Circuit. But the decision certainly is in tension with all the First Circuit district court decisions (such as Fanfan and Meuffleman) finding that Blakely renders at least portions the federal guidelines unconstitutional.
In addition, the facts of the Morgan case provide a stunning example of the potential importance of Blakely and especially the requirement that sentence-enhancing facts are found beyond a reasonable doubt. The defendant in Morgan throughout the case contested the amount of drugs that the government was trying to attribute to him, and the First Circuit affirmed the sentence by relying heavily on the fact that, under pre-Blakely law, such drug amounts only have to be found by a preponderance. Here is the first paragraph for the Morgan court's substantive analysis:
As oft-written, "[w]e review the sentencing court's factual findings, which must be supported by a preponderance of the evidence, for clear error." United States v. Lopez, 299 F.3d 84, 87 (1st Cir. 2002), citing United States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997). That "preponderance," United States v. Marks, 365 F.3d 101, 105 (1st Cir. 2004), simply requires the government to present enough information, free from the strictures of the rules of evidence which do not apply to sentencing hearings, "provided that the information has sufficient indicia of reliability to support its probable accuracy," Lopez, 299 F.3d at 89; Fed. R. Evid. 1101(d)(3), to make it more likely than not that the fact to be proved is true.
Download us_v. Morgan.pdf
Thursday, September 02, 2004
The Eleventh Circuit Speaks!!
As if we did not have enough to read, the Eleventh Circuit just handed down a decision in US v. Reese, No. 03-13117 (11th Cir. Sept. 2, 2004), in which the court joins what is now a considerable majority of federal circuits in declining to apply Blakely to the US Sentencing Guidelines. Here's the key language:
In light of Edwards and our own precedent in Sanchez, the additional cases and reasoning discussed by the Fifth Circuit in Pineiro and the Sixth Circuit in Koch, as well as the Supreme Court's express avoidance of this issue with respect to the Guidelines in the Blakely opinion itself, we decline to conclude that Blakely compels an alteration of the established view of the Guidelines as a tool for channeling the sentencing court's discretion within a crime's minimum and maximum sentence provided in the United States Code, with that maximum being the only constitutionally relevant maximum sentence. Therefore, the district court did not err in imposing the four-level enhancement pursuant to USSG § 2K2.1(b)(5). We hold that district courts should continue to sentence pursuant to the Guidelines until such time as the Supreme Court rules on this issue.
The decision includes this interesting "homage" to the idea of alternative sentencing, although now repackaged with the interesting label "protective steps":
We acknowledge that two circuits have held that Blakely does apply to the Guidelines, and that it is very difficult to predict whether the Supreme Court will apply Blakely to the Guidelines, and, if it does, whether it will hold that the Guidelines fall in their entirety or only in part. In light of this instability, we recognize that district courts might deem it wise and appropriate to take protective steps in case the Guidelines are later found unconstitutional in whole or in part. However, we are reluctant to provide specific advice with respect to what protective steps, if any, might be appropriate to reduce confusion and protect against duplicative judicial efforts should the Supreme Court so rule. We realize that such appropriate and feasible steps might vary with each individual case.
Wednesday, September 01, 2004
First official Blakely reversal in California
As Jonathan Soglin reports here over at Criminal Appeal, the first "official" California Blakely reversal happened yesterday in People v. Perry, No. A104398 (Cal. Ct. App. Aug. 31, 2004). The case involved the imposition of a four year upper-term sentence after defendant's guilty plea to "infliction of corporal injury to a cohabitant resulting in a traumatic condition." The court explained:
In this case, the trial court imposed the aggravated term based on the following factors: (1) "the defendant was armed with or used a weapon at the time of the commission of the offense;" (2) "the defendant has engaged in violent conduct which indicates he’s a danger to society;" (3) "his prior convictions as an adult are numerous and of increasing seriousness;" (4) "he was on a grant of summary probation at the time this crime was committed;" (5) "the defendant’s prior performance on summary probation has been unsatisfactory." Because under Blakely, at least four of these five factors must be determined by a jury, we conclude the trial court erred.
In expanding upon this conclusion, the court interestingly speculated on the scope of the "prior convictions" exceptions for purposes of applying factor (3) above. But then the court, after explaining its review standards, held that reversal was still required:
We need not decide whether the trial court (rather than the jury) may, after Blakely, find that defendant's crimes were of increasing seriousness, because we cannot determine, from this record, whether the four improper factors were "determinative" for the trial court. To put it another way, we cannot determine whether the trial court would have imposed the upper term based solely on defendant's increasing criminality.
Jonathan Soglin, who surely knows California law much better than I do, comments that if the California Supreme Court "follows this approach, and it should, reversals are likely in many other cases."
Tuesday, August 31, 2004
More from the Seventh Circuit (and Judge Easterbrook)
Just out from the Seventh Circuit is US v. Messino, 02-1411 (7th Cir. Aug. 31, 2004), which provides more guidance on the holdings of Blakely and Booker. Though a quick analysis is hard because there are three defendants' claims involved, it does not appear that any new ground is broken by the majority on basic guideline issues. But the opinion includes this interesting discussion about Blakey's effect (or lack of ) on forfeiture:
We have previously held that Apprendi has no effect on criminal forfeiture proceedings because forfeiture provisions have no statutory maximum. United States v. Vera, 278 F.3d 672, 673 (7th Cir. 2002). Apprendi’s statutory maximum was supplied by the statute of conviction; Blakely's is external—the statutory maximum is found not in the criminal code, but instead, the sentencing guidelines. See Booker, 2004 WL 1535858, at *1. The criminal forfeiture provisions do not include a statutory maximum; they are open-ended in that all property representing proceeds of illegal activity is subject to forfeiture. Vera, 278 F.3d at 673; U.S.S.G. § 5E1.4; 21 U.S.C. § 853. Therefore, we conclude that Blakely, like Apprendi, does not apply to forfeiture proceedings.
In addition, Judge Easterbrook dissenting in part in Messino has a number of interesting and important points to make about plain error review and also burden of proof issues. Further commentary on Judge Easterbrook's important (and contestable) insights will have to await another post late tonight.
Consecutive questions about consecutive sentencing
As I have suggested before here and here, the "prior conviction" exception should be — and perhaps through Shepard v. US will be — the next major Blakely issue for the Supreme Court to address after they resolve in Booker and Fanfan the applicability of Blakely to the federal guidelines. But two cases from the California state courts yesterday highlight that the issue of Blakely's applicability to judicial imposition of consecutive sentences will need to be directly addressed soon, too.
In People v. Vue, 2004 WL 1922504 (Cal. App. 3d Dist. Aug. 30, 2004), and People v. Lopez, 2004 WL 1922844 (Cal. App. 6 Dist. Aug 30, 2004), two different intermediate California appellate courts amended opinions to reject Blakely-based attacks on the imposition of consecutive sentences. Interestingly, in both cases the court said that, even if Blakely applies to factors used to impose consecutive sentences, the defendants' claims would be unavailing because of facts established at trial or admitted in a plea. Whatever one thinks of the specifics of these interesting rulings, they are a reminder of another important "Blakely front." (Recall that the California Supreme Court has agreed to consider this specific question in People v. Black, discussed here, though I suspect rulings in various states that will struggle with this question may not all end up consistent in their interpretations of Blakely and the Sixth Amendment.)
Seeking restitution on restitution
Because restitution orders are becoming more common in state and federal courts, many have wondered whether and how Blakely might impact such orders. As noted here, the Tenth Circuit previously spoke quickly (perhaps too quickly) to this issue in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004).
Yesterday the Ninth Circuit in US v. DeGeorge, 2004 WL 1920922 (9th Cir. Aug. 30, 2004), contributed a view on the restitution issue in a case applying an older federal law on victim restitution. Here's what the court said:
We first review the restitution order made by the district court pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. §§ 3663-3664, which is unaffected by Blakely. See, e.g., United States v. Baker, 25 F.3d 1452, 1456 (9th Cir. 1994) ("[R]estitution determinations under the VWPA are quite different from sentencing determinations under the Sentencing Guidelines.").
Because I believe that the VWPA, passed by Congress in 1982, made an award of restitution wholly discretionary, the Ninth Circuit may be right that Blakely does not affect its application. However, in 1996, Congress passed the Mandatory Victims Restitution Act (MVRA), which now makes restitution mandatory for particular crimes, and thus the Blakely analysis might be different under that statute. See generally US v. Alalade, 204 F.3d 536, 538-41 (4th Cir. 2000) (discussing changes in sentencing court's discretion after passage of MVRA). And, of course, state restitution provisions will need to be distinctly examined to see if and how their structure and terms could be impacted by Blakely.
In the end, as will be the case with so many post-Blakely issues, a lot of litigation may be needed to sort this all out.
Friday, August 27, 2004
More guidance from the 9th Circuit
We know that, pending decisions in Booker and Fanfan, at least four circuit courts are trying to proceed with business as usual in applying the federal sentencing guidelines. But, of course, in the Seventh and Ninth Circuits binding precedents require coping with a new (and uncertain) post-Blakely sentencing reality. Today in US v. Castro, No. 03-50444 (9th Cir. Aug. 27, 2004), the Ninth Circuit issued a per curiam opinion which helps sort out more of the post-Blakely litigation uncertainty. Here's the heart of what the court says:
In US v. Ameline, 376 F.3d 967 (9th Cir. 2004), we held that Blakely v. Washington, 124 S. Ct. 2531 (2004), applied to the US Sentencing Guidelines and, thus, the imposition of an enhanced sentence on the basis of judge-found facts violates the Sixth Amendment....
As we recognized in Ameline, “the Blakely court worked a sea change in the body of sentencing law.” 376 F.3d at 973. Whatever the outcome of the Supreme Court proceedings in Booker and Fanfan, those decisions will likely have a profound impact upon our disposition of sentencing issues in direct criminal appeals and will certainly affect the continued vitality of Ameline. Accordingly, in a case in which the defendant appeals both his conviction and his sentence, if we decide to affirm the conviction and if the sentence imposed implicates Blakely or Ameline, we would ordinarily withhold our decision until the Court decides Booker and Fanfan.... Similarly, if we have already issued our decision in such a case, but have not yet issued the mandate, we would ordinarily stay further proceedings....
Here, however, circumstances prompt us to act on the sentencing issues at this point, instead of staying proceedings pending the Court's decisions in Booker and Fanfan. Had Castro’s sentence been based only on the facts that were found by the jury and not on those found by the district judge, he would already have completed serving his sentence. Where the portion of the sentence that is clearly unaffected by Blakely and Ameline has expired or will expire shortly, we deem it appropriate to remand the case to the district court for whatever action it determines to be proper under the circumstances. Among the options available to the district court, within the exercise of its discretion, would be to reconsider its sentence or to stay further proceedings pending the outcome of Booker and Fanfan, with or without granting bail to the defendant. FN3
FN 3: In Ameline, we held that we are not precluded from addressing Blakely issues even when a defendant raises them for the first time after the case is submitted. 376 F.3d at 972-74. Although we have the authority to identify and consider such sentencing issues sua sponte, it would be appropriate for parties with pending cases to inform this court by letter at any time, jointly or severally, when a potential Blakely or Ameline issue exists, or when particular circumstances warrant action on our part prior to the Supreme Court’s decisions. We note with approval that Castro filed a letter advising this court that his re-sentencing was affected by Blakely. Absent particular circumstances warranting earlier action, a motion to file a supplemental brief or a supplemental petition raising Blakely or Ameline issues will ordinarily be denied without prejudice to renew following the Supreme Court’s decisions. A petition for panel rehearing or for rehearing en banc raising Blakely or Ameline issues will also likely be held in abeyance in most cases. If further proceedings have been stayed, no such petition need be filed until the stay expires or is terminated. If no stay has been issued, either party may request that one be entered.
Distinguishing the federal system structurally?
In Koch, Judge Sutton's defense of the federal guidelines for the Sixth Circuit en banc majority (details here) goes to great length to highlight distinctions between the Washington guideline system at issue in Blakely and the federal guideline system. Particularly noteworthy is Judge Sutton's extended efforts to spotlight (and give legal significance to) structural differences in who created these guideline systems, and his emphasis on the US Sentencing Commission's placement in the Judicial Branch.
I find this portion of Koch fascinating because, in my own writings, I have stressed the significance and role of different sentencing lawmaking institutions, see A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stan. L. & Pol'y Rev. 93 (1999), and I have also urged sentencing commissions to take a proactive and leading role in developing sentencing procedures. See Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 37 Crim. L. Bull. 627 (2001). But, Judge Sutton's structural defense of the federal system in Koch includes one particular passage that could alone justify a dozen more law review articles. He says:
While it may be true that agencies are no less capable of violating the Sixth Amendment than legislatures, the Guidelines come from the very branch of government that all nine Justices of the Court agree has long exercised considerable discretion over sentencing determinations based on the same kinds of factual determinations that the Guidelines ask federal courts to make. If federal judges, in other words, may consider facts that increase sentences in an indeterminate sentencing regime, is it not permissible for this branch of government collectively to channel the consequences of these facts based on their group experience?
This passage is so interesting because it raises a host of fascinating theoretical and factual issues. Fundamentally, of course, we start with curious questions of how and why the scope and reach of an individual's Sixth Amendment and Due Process rights would turn on the way in which criminal sentencing laws are written and enacted. Then we have to consider whether it has ever been accurate to describe the USSC's work as an effort by the judiciary to "collectively channel ... their group experience" in sentencing.
If the federal sentencing guidelines were written by the Judicial Conference of the US — as Professor Kate Stith and Judge Jose Cabranes have recommended in their wonderful book Fear of Judging (at p. 159) — I would find Judge Sutton's question above deserving of extended attention. But, as evidenced by judicial griping since the federal guidelines became law, I doubt many federal judges would say the USSC has in fact developed sentencing laws that channel their collective experiences.
Moreover, as Steve Chanenson has so astutely noted in his recent article (described here and revised version here), Congress' recent passage of the PROTECT Act has constrained and transformed the USSC to make it more like a "traditional" agency and less like a group of judges making sentencing rules for themselves. Recall that the PROTECT Act changed the requirement that the seven-member USSC have at least 3 judges to now provide that the USSC cannot have more than 3 judges. Some have suggested that this change alone entails that Mistretta, which Judge Sutton emphasizes in Koch, is no longer good law.
In short, whatever we think theoretically of the distinction Judge Sutton spotlights, it is not a distinction that comfortably describes the modern reality of the federal sentencing system. And, of course, Judge Martin's dissent in Koch accuses the majority of emphasizing "a distinction without a difference":
I presume that the majority would agree that were the challenged provisions of the Guidelines enacted by Congress in the first instance, they would be unconstitutional under the rule announced in Blakely. I fail to see how the fact that Congress delegated its authority to the Sentencing Commission to set presumptive sentencing ranges saves the federal scheme from constitutional attack.
Thursday, August 26, 2004
Interesting facets of the Koch dissent
Of course, the big news from the Sixth Circuit's Koch decision (details here) is Judge Jeffrey Sutton's majority opinion, which makes a spirited defense of the federal guidelines in the face of Blakely (and makes no defense of the Sixth Circuit's curious order in Koch recommending the announcement of alternative sentences). But the dissent, authored by Judge Boyce Martin and joined by Judges Daughtrey, Moore, Cole, and Clay, has a number of interesting and noteworthy facets. Here are just a few of many possible observations on this front:
1. Politics as usual? Unlike the unusual coalitions of Justices in Blakely, the decision in Koch nearly reflects the judicial equivalent of a "party-line vote." If my calculations are correct, all five judges joining the Koch dissent were appointed by Democratic Presidents, while seven of eight judges in the Koch majority were appointed by Republican Presidents(Judge Gilson is the exception).
3. Can a dissent have dicta? Interestingly, the last three pages of the dissent address whether a Blakely claim can qualify as plain error. Though it is said that history is written by the winners, apparently the Koch dissenters hope that plain error doctrine can be written by the losers.
4. Better not to decide? Amusingly, before reaching out to address plain error, the dissent makes a spirited argument that "the most appropriate course of action would be to withhold our decision until the Supreme Court has spoken." Indeed, the harshest words in the dissent are at the outset when Judge Martin asserts that the "majority’s opinion in this case amounts to nothing more than an exercise in futility and a waste of time and resources, in light of the Supreme Court’s grant of certiorari" in Booker and Fanfan.
5. The duties of lower court judges? Though necessarily a secondary issue to the merits, so much of the post-Blakely, pre-Booker/Fanfan jurisprudence wonderfully spotlights the challenges for lower court judges. As noted before, Judge Sutton invokes Learned Hand for the proposition that circuit courts ought not anticipate the overruling of Supreme Court precedents. But Judge Martin responds by asserting that, in Koch, "the majority ignores our very duties as United States Circuit Judges:"
Having insisted upon declaring its view regarding the applicability of Blakely to the Guidelines, rather than – as I would do – awaiting the Supreme Court's impending resolution of the issue, the majority is obligated, as we all are, to interpret and apply Supreme Court precedent to the facts of this case, regardless of whether its analysis leads to a result that it does not like.
The 6th Circuit Speaks!!
Making me proud of my home circuit, at least for its timing if not the specifics its opinion, the Sixth Circuit has today beaten the Fourth Circuit to the punch and has released its opinion in US v. Koch, which can be accessed here.
Here's the line up of the judges: Sutton, J., delivered the opinion of the court, in which Boggs, C. J., Guy, Batchelder, Gilman, Gibbons, Rogers, and Cook, JJ., joined. Martin, J. delivered a separate dissenting opinion, in which Daughtrey, Moore, Cole, and Clay, JJ., joined.
Analysis about this major development to come soon.
UPDATE: I am just getting started on the opinion, but it seems that the underlying case involves intricate facts in which the defendant was sentenced for a killing that was never charged nor considered by the jury. Also, I am already proud that (OSU alum) Judge Jeffrey Sutton starts his substantive analysis with a quote from Judge Learned Hand. It looks like this opinion was worth the wait.
Here are just a few of the many choice quotes from the majority opinion:
in each of the post-Mistretta cases, the Court addressed a question not dissimilar to the one presented here: May federal judges find facts under the preponderance standard that increase a sentence beyond the facts found by the jury under the beyond-a-reasonable-doubt standard? Because the Court said “yes” in each case, this line of authority by itself suggests that a lower court should be skeptical about concluding that Blakely’s invalidation of a state-sentencing scheme suddenly dooms the Federal Sentencing Guidelines....
While sentencing statutes and the Guidelines both have the force of law and both bind courts, the Guidelines are agency-promulgated rules enacted by the Sentencing Commission — a non-elected body that finds its home within the Judicial Branch, the very branch of government in which sentencing discretion has traditionally been vested.... This precise distinction, notably, was central to Mistretta’s decision to uphold the Guidelines in the first instance.
Whether this distinction will carry the day in Booker and Fanfan remains to be seen, but it at least undermines the view that Blakely compels us to invalidate the Sentencing Guidelines....
All of which brings us back to our central concern. It may be that the trajectory of Apprendi, Ring and Blakely will end with a nullification of the Guidelines. But, in the face of these relevant precedents, it is not for us to make that prediction or to act upon it. Not only would such a ruling be of some consequence to the Guidelines, but it also would be in tension with whole bodies of law that the lower courts long have been obliged to follow.
Partial Analysis of Majority Opinion: Indeed making me proud to be a Buckeye, Jeff Sutton has penned a wonderfully written defense of the federal sentencing system in the face of Blakely; in my view, this is the best defense of the federal system "on the merits" to date (with apologies, of course, to Judge Easterbrook). We will find out before too long whether Judge Sutton's former boss, Justice Scalia, may find this defense convincing.
Though I will have more commentary on the substance of the majority's opinion later today in a separate post (as well as a separate post about the dissent), I have to comment now about the curious absence of a single mention, let alone any defense, of the Sixth Circuit's prior recommendation that its district courts issue alternative sentences (background here).
Has the curious alternative sentencing recommendation been (officially or unofficially) withdrawn? Upon reflection, did the Sixth Circuit agree with Judge Goodwin that alternative sentencing is inappropriate (details here)? Inquiring minds want to know. And, as my colleague Marc Spindelman suitably added, criminal defendants in the Sixth Circuit deserve to know.
Wednesday, August 25, 2004
The First Circuit chats about ineffective assistance
In the course of figuring out how Blakely might apply to pending and past cases, I have been speculating with others about whether the failure to make or preserve a "Blakely claim" before the time Blakely was decided could be deemed ineffective assistance of counsel. More generally, it seems clear that in addition to all the "on the merits" short-term and long-term Blakely issues, courts will eventually have to sort out a series of short-term and long-term Blakely-related ineffective assistance claims.
In the first decision I have seen starting to speak to these sorts of issues, today in the unpublished case of Campbell v. US, 02-2387 (1st Cir. Aug. 25, 2004), the First Circuit holds in a federal habeas corpus setting that "Campbell is not entitled to a [certificate of appealability] to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely." The First Circuit reasons, in a decision that can be downloaded below, that Campbell's "case does not require us to decide whether Blakely applies to the federal sentencing guidelines or whether it applies retroactively to cases on collateral review." The court continues:
Because Campbell stipulated at trial to a drug quantity that corresponded to the base offense level used to calculate his sentence, he cannot show that he was prejudiced by the failure to charge the specific drug quantity in his indictment. Moreover, counsel's failure to anticipate Blakely would not constitute unreasonable performance under Strickland because 'First Circuit jurisprudence on this point ha[d] been well established.' Campbell, 268 F.3d at 7, n.7. Therefore, reasonable jurists could not find that he has made a substantial showing that the Blakely issue would have been clearly stronger than the issues raised by appellate counsel.
At the end of this passage, the court adds this informative footnote:
To the extent that petitioner is seeking to assert a new claim based on Blakely (rather than to provide supplemental support for his ineffective assistance claim), he would be required to present that claim first in the district court. Certification to file a second or successive petition could not be granted unless the Supreme Court had held that Blakely applied retroactively to cases on collateral review. 28 U.S.C. § 2255.
Though this per curiam decision is unpublished and thus formally non-precedential, it obviously speaks to some very important issues in a very important way.
Download campbell_v. US.pdf
The Third Circuit chats about Blakely
In the world of sentencing, you can run, but you cannot hide from Blakely. Well, actually, the en banc courts in the Fourth and Sixth Circuits have been able to run and hide from a written opinion for some time, but I am sure a full account of their orders in Hammoud and Koch are coming real soon.
A full two months after Blakely was handed down, a handful of federal circuit courts — the 1st, 3rd, 10th and DC Circuits, by my count — have still managed to avoid any significant Blakely rulings to date. (The Federal Circuit, to my knowledge, does not have jurisdiction over any criminal cases, though I wonder if anyone out there is working on Blakely-related patent applications.)
The Third Circuit, however, is trying to get on with the business of deciding sentencing cases and has thus had to chat a bit on the record about Blakely. Specifically, in US v. Dickerson, 2004 WL 1879764 (3d Cir. Aug. 23, 2004), a case which is interesting in part for its discussion of guidelines departures, the Third Circuit dropped this noteworthy footnote:
We will address the Government's arguments regarding Dickerson's downward departure notwithstanding the fact that they involves sentencing issues that are completely based on the Federal Sentencing Guidelines, which have recently come under attack in the wake of the Supreme Court's decision in Blakely. We do so because the question here involves the application of a downward departure, rather than an upward departure or a sentencing enhancement. Thus, unless the entire Guidelines regime falls, the decision in Blakely is not clearly implicated here. Further, in response to questioning by the Court at oral argument, the parties conceded that no Blakely-related problems are likely to arise on the facts of this case.
Meanwhile, another decision from the Third Circuit this week, US v. Pepsny, 2004 WL 1873996 (3d Cir. Aug 23, 2004), includes this somewhat cryptic paragraph on Blakely:
In a notice to us subsequent to oral argument, [the defendant] DiFeo, citing Blakely challenges the nine-level increase to her base offense level for having caused losses in excess of $400,000. On appeal, however, DiFeo did not contest the computation of the dollar sums included in the amount of loss calculation (i.e., she did not dispute the propriety of the judge's fact-finding). Rather, she simply argued that these losses should not have been included in the calculation (i.e., she took issue with the application of the Sentencing Guidelines). Thus, while we have rejected DiFeo's attack on the District Court's Guidelines application, we have not said anything regarding the underlying factual determinations. Since we remand for resentencing, DiFeo can attempt to raise the Blakely issue in the District Court.
Finally, in the unpublished US v. Coplin, 2004 WL 1790169 (3d Cir. Aug. 09, 2004), the Third Circuit briefly discussed Blakely in the context of an Anders brief. Based on the defendant's various factual admissions, the court in Coplin explained that "without delving into the many complex questions raised by Blakely, we conclude that under any interpretation of Blakely, Coplin has no nonfrivolous ground for appeal." And at the tail end of a discussion of Apprendi and Almendarez-Torres, the Third Circuit added this entertaining tidbit:
We are absolutely bound by those decisions, for it is the "[Supreme] Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Even if we believe that the foundation of a prior Supreme Court decision is thoroughly undermined, it is up to the Supreme Court to complete the demolition of its own decision.
Noteworthy Circuit Snippets
Though we have not had a major ruling from the federal circuit courts in some time, we continue to get regular snippets from those circuit courts which have already weighed in on Blakely. And though these snippets often appear in so-called unpublished opinions, they are still frequently consequential and interesting.
For example, in cases like US v. Bowden, 2004 U.S. App. LEXIS 17937 (6th Cir. Aug. 24, 2004), and US v. Musleh, 2004 U.S. App. LEXIS 17742 (4th Cir. Aug. 20, 2004); US v. Shipman, 2004 U.S. App. LEXIS 17743 (4th Cir. Aug. 20, 2004), we see the Sixth and Fourth Circuits quickly disposing of Blakely claims in footnotes based on their Koch and Hammoud rulings. Obviously, the fact that these circuits still have not yet explained their en banc Koch and Hammoud orders in written opinions has not slowed their efforts in other sentencing cases.
In recent unpublished decisions from the Ninth Circuit, we see the court continuing its efforts (first noted here) to keep its Ameline decision from disrupting too many sentences. For example, US v. Chetty, 2004 U.S. App. LEXIS 17935 (9th Cir. Aug. 23, 2004), involved an interesting application of plain error. The Chetty court, citing Ameline, explained "it is plain error under the Sixth Amendment to increase punishment beyond the maximum standard range based on facts not admitted by the defendant or found by a jury beyond a reasonable doubt, unless the right to jury trial is waived." Yet Chetty's sentence is not reversed because, though "Chetty's eight-level enhancement for loss found by the district judge by a preponderance of the evidence was plain error," to warrant reversal "the error must have been prejudicial and have affected the fairness of the proceedings." Because Chetty was only disputing part of the loss attributed to him, the sentences he received was still "within the range of the offense level Chetty sought." Thus, through "the district judge's enhancement based on his finding of loss amount was plain error, it was not prejudicial and does not warrant remand for resentencing."
And, in a brief decision in US v. Green, 2004 U.S. App. LEXIS 17911 (9th Cir. Aug. 20, 2004), we get a different variation on important waiver questions. In Green, the Ninth Circuit relies on an appeal waiver to avoid dealing with Blakely: "Defendant waived the right to appeal her sentence, and we therefore dismiss her appeal. Because defendant's waiver also precludes us from considering her argument based on Blakely, we deny her motion for supplemental briefing."
From the Eighth Circuit we get US v. Mohr, 2004 U.S. App. LEXIS 17861 (8th Cir. Aug. 23, 2004), where the defendant was sentenced as a career offender and contested the characterization of one of his predicate prior felonies, commercial burglary, as a crime of violence. In another stretch of the "prior conviction" exception, Judge Murphy in a footnote comes to the debatable conclusion that "Mohr's case is unaffected by Blakely because ... the only enhancement to Mohr's sentence was because of his prior convictions." Interestingly, Judges Heaney and Bright each have separate concurrences in Mohr to discuss the characterization of the defendant's prior conviction, but neither mentions the possible Blakely issue.
Thursday, August 19, 2004
It really is the end of the world, when...
this blog gets cited as "official authority." Yes, you read that crazy bit of news right. I just received (and make available below) a copy of an order entered today in US v. Onunwor, NO. 1:04-CR-211 (N.D. Ohio Aug. 19, 2004), by US District Judge James Gwin of the Northern District of Ohio. Here's the heart of the sentencing discussion:
With regard to the sentencing factors, the Court notes that the Sixth Circuit has recently determined that the Federal Sentencing Guidelines remain constitutional despite Blakely. See United States v. Koch, No. 02-6278 (6th Cir. Aug. 13, 2004). Because the Court cannot locate an official opinion published on this case, it presumes accurate the following order, as quoted on the Sentencing Law and Policy weblog [the opinion then quotes the Koch order and cites my post here, including the title "I'm home . . . and grumpy about the Sixth Circuit"]
Because the Sixth Circuit has instructed United States District Courts to apply the Guidelines, but also to provide as an alternative the sentence that the Court would enter under a discretionary sentencing regime, the Court intends to do just that. Thus, the Court will not bifurcate the trial into a "guilt phase" and a "sentencing phase." Nor will the Government need to put on at trial any additional evidence regarding sentencing factors. The only way such additional evidence would be necessary is if the Supreme Court were to rule that the Guidelines are severable. Only then will the Government need to prove sentencing factors to a jury, beyond a reasonable doubt. Should the Supreme Court later determine that the Guidelines are non-severable --- FOOTNOTE 1: For the reasons articulately expressed by Judge Gertner in United States v. Mueffelman, No. 01-CR-10387-NG (D. Mass. July 26, 2004), the Court finds that this outcome is the most likely. --- once any Guideline runs afoul of Blakely, the entire Guideline system will fall. Should that occur, we will return to a regime of discretionary sentencing, which of course would not require the Government to prove sentencing factors to a jury, beyond a reasonable doubt.
Needless to say, this is an important decision for reasons other that this (slightly comical) citation, and for me is just another remarkable example fo the different forms of chaos Blakely has engendered.
August 19, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
Wednesday, August 18, 2004
The 11th Circuit Speaks (again on plain error)!
In a decision seemingly dated August 15 but filed today (and citing a decision on August 16), the Eleventh Circuit in US v. Duncan, No. 03-15315 (11th Cir Aug. 18, 2004), decided as they had previously suggested in a footnote in US v. Curtis (background here), that the state of the law after Blakely is not "plain" and thus a Blakely problem does not constitute plain error. Here's some of the key language:
In the instant case, neither the Supreme Court nor this Circuit has resolved the issue of whether Blakely applies to the Federal Sentencing Guidelines, and as indicated above, the circuits that have addressed the issue are not all in agreement. Indeed, the majority of circuits that have addressed the issue reject Duncan's position that Blakely applies to the Guidelines. Thus, Duncan cannot satisfy the second prong of the plain error analysis.
This decision is noteworthy for many reasons, including that it moves the Eleventh Circuit, without an express holding, pretty close to joining the new majority position in the circuits that Blakely is inapplicable to the federal guidelines. In addition, the Duncan opinion takes some swipes at the Eighth Circuit's (now vacated) panel decision in Pirani finding a Blakely error to be plain:
We do not agree with the Pirani panel’s dismissal of the Fifth Circuit’s opinion [upholding the federal guidelines]. While we need express no opinion on whether we actually would reach the same conclusion as the Fifth Circuit if a Blakely challenge was properly before us, we believe that the Fifth Circuit’s view is rational–i.e. a reluctance to find that Blakely has undone years of Supreme Court precedent focusing on the maximum sentence as stated in the United States Code. We believe this is a rational view despite the fact that other circuits, although not the majority, have held that Blakely has in fact undone this established understanding.
August 18, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Monday, August 16, 2004
Question 4 answered: Eighth Circuit takes Pirani en banc
At least one of my exciting Blakely questions for the week (listed here) has been partially answered. Specifically, my sources report that the Eighth Circuit has officially granted, upon the court's own motion, rehearing en banc in US v. Pirani (background here). As with the previous order by the court to rehear en banc the panel decision in Mooney, the Eighth Circuit has only indicated that en banc argument "will be held at a time and place to announced."
With both Mooney and Pirani now officially vacated, the status of federal sentencing in the Eighth Circuit returns to being undefined. For three full weeks (and four fun-loving weekends) since the July 23 decision in Mooney, binding precedent in the Eighth Circuit was that the federal guidelines were wholly unconstitutional. Now we are back to square one until a new en banc ruling "at a time and place to announced."