Thursday, May 17, 2012

Judge Young's latest account of (and homage to) jury involvement in sentencing fact-finding

US District Judge William Young of the District of Massachusetts, who has produced a regular supply of interesting (and lengthy) opinions about the role of juries in the modern criminal justice system, today issued another interesting (and lengthy) opinion such in US v. Gurley, No. NO. 10-10310 (D. Mass. May 17, 2012) (available for download below).  Judge Young's work always merits attention, and the 51-page sentencing opinion in Gurley does not disappoint.  There is far too much ground covered in Gurley to allow a simple summary, but here is the start of the main legal discussion section -- which begins on page 24 of the opinion! -- to provide a flavor of why Gurley is today's federal sentencing must-read:

I am a district judge sitting in the First Circuit. I owe the utmost fidelity to the Acts of Congress, the decisions of the Supreme Court, and those of the First Circuit. Government waiver aside, I owe a duty to explain that my post-Booker insistence on keeping the jury-front-and-center is fully consonant with the controlling statutes and case law.

The issues presented to this Court are whether the Court “must” apply the ten-year mandatory minimum sentence to the basic sentencing range set out in 21 U.S.C. § 841(b)(1)(C) and whether the principle of juror lenity bears on determinations as to the authorized sentence range.

I answer to the first question in the negative because the statutory range authorized by the jury does not provide for a mandatory minimum sentence. As to the second question, Supreme Court precedent binds this Court to recognize the principle of juror lenity in determining the applicable sentencing range. In doing so, this Court does not abdicate its post-Booker discretion to decide a just sentence based on a fair preponderance of the evidence as counseled by the Sentencing Guidelines. Rather, this Court endeavors to harmonize the principle of juror lenity with the jury’s recognized authority to acquit a defendant should a sentencing range appear to it disproportionate.

Download 10-cr-10310Gurley Mem

May 17, 2012 in Blakely in Sentencing Courts, Booker and Fanfan Commentary, Booker in district courts, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, March 14, 2011

Fascinating backstory for why former judge Jack Camp does not even have a felony conviction

Thanks to this lengthy piece by Robin McDonald at The Daily Report legal paper, which is headlined "Camp sentence: 30 days in prison; Prosecutors object to visiting judge converting Camp's felony plea to a misdemeanor," I have learned that former federal judge Jack Camp did not even get saddled with a felony conviction as a result of a surprise development during his federal sentencnig last Friday.  Here is the remarkable backstory:

A visiting federal judge from Washington on Friday sentenced former U.S. District Senior Judge Jack T. Camp to 30 days in prison and 10 weeks of community service on drug and theft charges.

In a surprising move, U.S. District Senior Judge Thomas F. Hogan reduced the sole felony to which Camp had pleaded guilty last fall to a misdemeanor.  Camp's defense team — in what federal prosecutors claimed was a breach of Camp's plea deal last year — had raised legal issues while seeking probation for Camp that led to Hogan's action.

Hogan issued the sentence after a two-hour hearing during which Camp, his son, a former law partner, a former law clerk, the former district court clerk and the former chairman of Georgia's Republican Party made personal pleas for leniency and a probated sentence that would allow Camp to avoid incarceration....

In converting Camp's felony to a misdemeanor, Hogan has allowed the former judge to avoid the loss of a host of privileges that go with a felony, such as the right to vote, the right to hold public office, the right to secure a business license and the right to carry a gun....

Camp pleaded guilty last November, a little more than a month after he was arrested by the FBI following an illegal drug buy that he and the dancer made from an undercover agent.   Camp pleaded guilty to two misdemeanors — illegally possessing cocaine, marijuana and the painkiller Roxicodone (a synthetic form of heroin) and the misdemeanor theft of a government-issued laptop computer that Camp had given to the stripper.  But Camp also pleaded guilty to felony aiding and abetting a person he knew to be a drug felon in the unlawful possession of illegal drugs. The stripper, an FBI informant, had been convicted of using telephone communications while trafficking in methamphetamine, according to federal prosecutors.  Camp resigned from the bench and has also surrendered his law license.

The felony charge carried a maximum two-year sentence and a $100,000 fine. Both misdemeanor offenses carry maximum one-year sentences and $100,000 fines.  Hogan said that the pre-sentence report conducted by the federal probation officer assigned to Hogan's court recommended a sentence from 15 days to six months.

But last week Camp's lawyers filed a sentencing memorandum claiming the confidential pre-sentence report, which is not available to the public, was in error. They asserted that Camp should not be subject to any mandatory minimum prison term and that his sentence should not be influenced by the prior criminal history of the dancer for whom he had helped to acquire illegal drugs for their joint use....

That argument prompted Hogan to convert the felony charge to a misdemeanor, a move he discussed in chambers with Camp's lawyers and lawyers from the Justice Department's Public Integrity Section.  The meeting delayed the start of the sentencing hearing by 35 minutes, which Hogan explained when he took the bench.... Hogan said his interpretation of case law is that Camp's sentence could not be enhanced by the prior criminal record of the dancer with whom he had purchased and used illegal drugs, and, as such, his felony plea converted to a misdemeanor.

Prior to Hogan's ruling, DOJ attorney Deborah Sue Mayer asked the judge to release the government from the terms of its plea agreement with Camp, which she said would give the Justice Department the option of bringing additional criminal charges against Camp. But Hogan said that he did not believe the issues that led him to toss the felony count constituted a breach of Camp's plea.

Later in the hearing, Mayer reiterated her position that Camp's plea agreement was breached.  In asking for an unspecified prison term that she said reflected the seriousness of Camp's offenses, she noted that Hogan ought to consider the entirety of Camp's actions, not just the charges to which he entered guilty pleas. "He engaged in repeated criminal conduct over a period of four months," she said. "It was not just a one-time thing.  It was not just an exercise in poor judgment."

That conduct included asking a federal marshal to run a criminal background check for personal reasons, which is a misdemeanor, Mayer said. It also included the "repeated" possession and use of illegal drugs including cocaine and synthetic heroin that she said Camp "snorted like a street drug," and the lie he told in order to secure a new laptop so that he could give a government-issued computer to the stripper from whom he sought sexual favors. Camp, she said, also knew "full well" that the stripper had been convicted of a drug trafficking crime, which Mayer said the former judge attempted to minimize in an effort to help her find new employment.... 

Mayer added, Camp brought two guns to a drug deal, one of which he had in his pocket while the dancer was by his side buying illegal drugs from the undercover agent.  When Camp was arrested, one of the guns was visible in the front passenger seat of his car, with the trigger cocked and a chambered round, but Mayer said the government did not charge Camp with a federal firearm offense because it was not linked to a crime of violence or a drug trafficking offense."

Based on this description of events, it sounds like Camp may have been able to raise an Apprendi/Blakely issue in order to avoid a felony conviction.  If that's right, it provides yet another remarkable facet to a remarkable case that, in my view, does not reflect very well on how this ugly matter was handled by the local federal prosecutors. [UPDATE: A commentor rightly noted that the local USA's office recused itself in this case, so its the feds from Main Justice brought in to prosecute who seem to have the egg on their face in light of how poorly this case appears to have been handled].

Related prior posts (which have generated lots of notable comments):

March 14, 2011 in Blakely in Sentencing Courts, Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, April 07, 2008

Thoughtful thoughts on Judge Weinstein's work in Polizzi

Over at Volokh, Orin Kerr has this extended discussion of Judge Weinstein's very extended Polizzi opinion (basics here and here), which reverses a conviction in a child porn case on debatable legal grounds.  Here is the start of Orin's analysis:

Polizzi reads less like a judicial decision than a 266-page book of opinion essays. If I understand the reasoning of the opinion — not a small challenge with an opinion written in such a complex way over hundreds of pages — the basic argument is this: Recent Supreme Court decisions interpreting the Sixth Amendment like Blakely v. Washington suggest that the current Supreme Court greatly values the role of the jury, and as a result older precedents saying that the jury can't hear about sentences are inconsistent with the spirit of the Supreme Court's new cases and are no longer binding precedent.

Related posts on Polizzi:

April 7, 2008 in Blakely in Sentencing Courts | Permalink | Comments (9) | TrackBack

Saturday, April 05, 2008

Judge Weinstein's magnum opus on jury rights

As noted in this recent post, famed EDNY Judge Jack Weinstein this week found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case.  Judge Weinstein's full opinion in US v. Polizzi, No. No. 06-CR-22 (EDNY April 1, 2008) is available here, and it runs a total of 288(!) pages (though the last 50 are detailed appendices).  Here is how this amazing work of judicial exposition concludes:

A. Constitutionality of Statute

Defendant’s motion to declare the statute unconstitutional as written, charged, and applied is denied because of ruling authority. See Part III.A, supra.  Upon appeal, constitutionality and the language of the statute should be reconsidered for the reasons stated in Part III.A, supra.  The issue of unconstitutionality applies to both the receiving and possessing counts. Id. If the statute is ruled unconstitutional, the case should be dismissed.

B. New Trial as to Counts One Through Twelve

For the reasons stated in Part IV, supra - - failure to exercise the court’s discretion to notify the jury of the mandatory minimum sentence - - the verdict is set aside on Counts One through Twelve, charging receiving child pornography. A new trial on those counts is granted, unless the statute as to those counts in declared unconstitutional on appeal.

April 5, 2008 in Blakely in Sentencing Courts | Permalink | Comments (9) | TrackBack

Monday, January 10, 2005

Brand new year, same old Blakely

Though the cases are now dated 2005, the lower court Blakely rulings of the new year look a lot like what we saw the last few months of 2004.  Notably, in just the first week of 2005, there were nearly 50 cases discussing or noting Blakely coming on-line from an array of federal and state courts. (California, not surprisingly, continues to set the Blakely caselaw pace with over a dozen Blakely on-line rulings for the week alone).

Based on an all-too-quick-review, the most notable or consequential Blakely cases from last week — besides the Idaho Supreme Court ruling discussed here and developments in Alaska and Ohio and Washington detailed here and here — appear to be:

January 10, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Friday, January 07, 2005

A (too?) clever Blakely plea attempt

With many thanks to a reader for the tip, I can note this fascinating article from Chicago discussing a federal white-collar offender's attempt to plea guilty without "Blakely" enhancements.  As the article details, prosecutors have urged US District Judge Elaine Bucklo to reject the defendant's guilty plea as "fluff."

January 7, 2005 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, December 31, 2004

Highlights of a remarkable USSC document

The US Sentencing Commission's recently posted "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here; discussed here) is a remarkable document which, though "preliminary" and "anecdotal," paints a vivid and fascinating picture of federal sentencing in the post-Blakely world.  I could do a dozen posts about the memo; every section and nearly every sentence contributes new insights to an understanding of the current state of federal sentencing.   For now, I will be content to urge evryone to read the document and provide just a few highlights from the text of the memo here:

Continuances. Several lines of evidence suggest that Blakely has led to a delay in final sentencing in a large portion of cases. A decline in sentencings is reflected in the decrease in case documentation received by the Commission.... Interviews in the 7th and 9th circuits confirm that continuances have generally increased in courts holding that Blakely applies to the federal guidelines, although there is considerable variation from district to district....  Some court administrators are concerned that, after a slow summer, the backlog of cases will strain resources when the cases start moving.

Sentencing post-Blakely. Courts have identified a limited range of possible responses to the Blakely decision, as outlined in the decision tree attached to this report.... Among courts that have held that Blakely applies to the federal guidelines, the most common response appears to be to treat the guidelines as advisory.

Alternative sentencing. Interviewees in our survey in several districts also reported that judges were not announcing alternative sentences and one judge said he had tried the practice but abandoned it. The Blakely coding project has found documentary evidence of alternative sentencing in just 4.9 percent of the cases coded as of November 1.

Case and factor severability. Documentary data are not yet sufficient to quantify the portion of cases adopting any particular approach to severability. Interviews in the 7th and 9th circuits suggest that most judges are holding the guidelines invalid only in cases with offending adjustments. Further, there is evidence that many judges, even in the 9th circuit, resist severing the offending provisions and applying the guidelines without aggravating adjustments.

Sentencing "windfalls." Interviews with participants in the 7th and 9th circuits suggest that sentencing windfalls due to non-application of aggravating adjustments have occurred but are relatively rare. Windfalls appear to be largely limited to cases that plead guilty pre-Blakely, because defendants now stipulate to at least some of the aggravating adjustment or waive their Blakely rights.

December 31, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, December 30, 2004

A belated information present from the USSC

In my testimony last month to the US Sentencing Commission, I urged the USSC to examine post-Blakely developments, especially in the Seventh and Ninth Circuits where Blakely has been deemed applicable to the federal guidelines, to help assess whether a "quick legislative fix" would be truly essential after a possible ruling in Booker and Fanfan applying Blakely to the federal system.  Thus, I am very pleased to see that the USSC now has posted on its Booker/Fanfan page a document entitled "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here).

Here is how the USSC describes this fascinating new document on its Booker/Fanfan page:

While awaiting the submission and analysis of empirical data on the effect of the Blakely decision, the Commission staff conducted a survey of 40 sample subjects (judges, defense counsel, and probation officers) in the Seventh and Ninth Circuits to attempt to determine, through anecdotal means, how those jurisdictions are handling their criminal caseloads.

Though this document is, as stressed by the USSC, "preliminary" and "anecdotal" and only includes cases through October, it is still an extremely important and interesting (partial) report on the post-Blakely state of federal sentencing.  Along with this week's WSJ article on federal court doings, this document is a must read for everyone interested in assessing both the present and possible future of federal sentencing.

In subsequent posts over the next few days, I will highlight some of the most essential elements of this memo and also reflect on what it suggests for those planning for a post-Booker world.  For now, let me just lavish the USSC with praise for making this document publically available.  Perhaps this good deed will bring good karma for USSC Chair Judge Hinojosa's beloved Texas Longhorns (who will need to do a lot better against a Big Ten team in the Rose Bowl than another Big 12 team did against my Buckeyes in the Alamo Bowl last night).

December 30, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (1) | TrackBack

Friday, December 24, 2004

Gov. Rowland's interesting plea agreement

With thanks to Professor Ellen Podgor of White Collar Crime Prof Blog, I can now provide a link here to former Connecticut Governor John Rowland's plea agreement.  I pondered in this post whether the agreement included a Blakely waiver and whether it anticipated a decision in Booker and Fanfan.  Not surprisingly, these issues are well covered on page 3 of the 11-page agreement.

The entire Rowland plea agreement is a fascinating read.  It includes provisions calculating the guideline sentencing range for Rowland of 15-21 months of imprisonment.  The last three pages of the agreement constitutes a "Stipulation of Offense Conduct," and it covers the facts which support these guideline calculations.  Also of interest is a passage on Page 5 of the agreement that contemplates Rowland will argue for a downward departure from the guideline range of 15-21 months on various grounds related to his minor role in the offense and his professional and community contributions.

December 24, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Interesting Blakely perspectives

Two interesting newspapers stories this morning on the Blakely beat provide details about both the system-wide and case-specific impact of the decision:

December 24, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Wednesday, December 22, 2004

The morning's sentencing news

It is another morning with newspapers filled with interesting stories on both capital and non-capital sentencing topics.  Here's a sample of some of the highlights:

December 22, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Thursday, December 16, 2004

Hacking into the world of Blakely

Making headlines and getting the attention of the blogsphere today are the sentencings of the defendants who last year hacked into the national computer system of Lowe's hardware stores and tried to steal customers' credit card information.

This AP story notes that the government is calling the nine-year sentence given to Brian Salcedo, who pleaded guilty in August to conspiracy and other hacking charges, "the longest prison term ever handed down in a computer crime case in the United States."  But Professor Orin Kerr at The Volokh Conspiracy explains here his sense "that there really isn't anything interesting about this case."

I basically concur with Orin's first take on the case, though I do think the plot is starting to thicken.  First, this follow-up AP story indicates that Salcedo's co-defendant, Adam Botbyl, today received a sentence of only 26 month.  Though I would need a lot more information to pass judgment, this prior story discussing the defendants' seemingly comparable roles in the offenses makes me wonder why Salcedo is getting a sentence four times longer than his co-conspirator.

Further, though not discussed in any of these news stories, I wonder about how Blakely fits into all of these developments.  The press reports indicate the plea deals were being put together just as the Blakely earthquake hit.  Of course, by late August, the Sixth Circuit had ruled in Koch (details here, commentary here) that Blakely should not apply to the federal sentencing guidelines unless and until the Supreme Court so held.  But that holding may be disrupted by Booker and Fanfan, and I cannot help but speculate about what kind of Blakely waivers might have been requested and secured by the government while negotiating the plea agreements in this case.

December 16, 2004 in Blakely in Sentencing Courts | Permalink | Comments (2) | TrackBack

Monday, December 13, 2004

My waiting wish-list

With no decision today, I did not get my wish of an opinion in Booker and Fanfan as a Hanukkah present.  And, unless the Supreme Court surprises us with extra opinions this month, it also seems I wasted my time writing to Santa to ask for a Booker and Fanfan opinion.  But even though it appears we now must all wait until January for a sentencing present from the Supreme Court, other institutions can keep me in a holiday mood by working on this waiting wish-list of mine:

1.  I wish the US Sentencing Commission supplements the fascinating data it has collected here about post-Blakely federal case processing, which could provide a fuller picture of the state of federal sentencing now.

2.  I wish a few state Supreme Courts resolve pending Blakely appeals, in order to further define and refine the many post-Blakely legal questions that need to be resolved (see some background here).  My own perspectives on Blakely (reflected in articles here and here) have been greatly influenced by state court rulings, and the Supreme Court apparently needs all the help it can get.

3.  I wish a few state sentencing commissions (or even the offices of state Attorneys General) provide additional data and analysis on how Blakely is impacting state criminal justice systems.  We get snippets from briefs and news stories, but nothing compares to the systematic analysis that can be done by an effective sentencing commission (as Minnesota's commission has shown).

4. I wish the ABA and the ALI and the Constitution Project and all the other important groups working on sentencing reform can use this extra Booker-free time to gear up for what is likely to be a hectic January.  I was rooting for a decision from SCOTUS now so we might all have a few weeks to mentally process the decision before congressional re-writing of federal sentencing was realistically feasible.  Now I fear we could possibly get a Supreme Court decision and then new federal sentencing legislation in rushed succession in January.

5.  I wish the powers that be in college football could figure out how to create a playoff system.  This mysterious blog sensibly suggests here that I watch a lot of football to keep in good cheer and keep my mind off Booker and Fanfan.  But what really keeps me from being in good cheer is knowing that USSC Chair Judge Hinojosa's beloved Texas Longhorns will not get a chance to prove on the field that they might actually be the best team in college football.  I suppose if the Longhorns take their frustrations out on Michigan in the Rose Bowl, that should suffice for this Buckeye.

December 13, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Thursday, December 09, 2004

More Blakely news from the field

Two more interesting news reports about the post-Blakely worlds of state and federal sentencing:

December 9, 2004 in Blakely in Sentencing Courts | Permalink | Comments (3) | TrackBack

Monday, December 06, 2004

More consequences while we wait for Booker and Fanfan

As detailed in this AP report, US District Judge Sylvia H. Rambo today allowed recently convicted Rite Aid executive Franklin Brown to remain free on bail pending appeal, at least until the Supreme Court decides Booker and Fanfan.  As article explains, "Brown was convicted last year of 10 criminal counts related to his tenure as the pharmacy chain's vice chairman and top lawyer [and] had been scheduled to turn himself in Dec. 13 to begin serving a 10-year prison term."  Here are more snippets from the story:

"The Blakely issues in this case are significant, and a definitive resolution of the matter could be forthcoming," Rambo wrote in a seven-page ruling.

Brown attorney Peter Goldberger said Monday his client was "relieved" to get news of Rambo's decision. "But in the short term. For now," Goldberger said.... "It's not a case where you can say, this side will win or that side will win, and that you'll know the minute the decision is handed out," he said.

Perhaps this means there may be one person rooting for the decisions in Booker and Fanfan to take a lot longer.  But I continue to hope that this week we finally get a decision from the Supreme Court.  As noted before, the Court has announced that opinions will be issued each of the next two days, and eventually I have to be right when predicting the decision is coming soon.

December 6, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Tuesday, November 30, 2004

Post-Blakely data on the state of federal sentencing

Though we did not get an opinion form the Supreme Court, I will still consider today a huge day because the US Sentencing Commission has now posted, here on its Booker/Fanfan page, some fascinating preliminary data about post-Blakely case processing in the federal system, as well as a memo with a review of lower federal court opinions addressing Blakely.

The sentencing data, comprising three pretty charts and described as "Preliminary Comparison of Case Submissions July and August 2003 and 2004," can be accessed here; the memo, which is more of a database than a substantive memo, can be accessed here

I am looking forward to consuming and commenting on these documents later this evening.  For now I will just say huzzah and thanks to the USSC and its staff for becoming much more public and transparent on these issues at a very important time.

November 30, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Another report about jury involvement in federal sentencing

With thanks to Marcia Oddi at the Indiana Law Blog for the tip, this article in Monday's Munster Times discusses a recent (apparently positive) experience with a "sentencing jury" in an Indiana federal district court.  Though specific details about the sentencing proceeding are sketchy, the article suggests that the jury in a high-profile public fraud, like the jury in the recently concluded Enron Nigerian barge case (details here and here), reached a compromise sentencing "verdict" on the facts.  Moreover, the article reinforces my suggestion here that a decision in Booker and Fanfan applying Blakely to the federal system might be positively perceived by the press and public as an appropriate vindication of the role of juries in the criminal justice system.

November 30, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, November 28, 2004

Interesting Blakely decisions from Maine

I recently came across two interesting federal Blakely rulings coming from the District of Maine (home, of course, of Fanfan).  These rulings reveal that cases are still moving along in one federal district.  However, a footnote in the Thomas opinion (discussed below) notes that, "although two judges in this district have concluded that the Blakely rationale reaches the Federal Sentencing Guidelines, this intra-district view is not unanimous."

In US v. Morehouse, 2004 WL 2668347 (D. Me. Nov. 22, 2004), District Judge Woodcock held that, because of Blakely, he could "not upwardly depart from guideline sentence range based on wrongful convictions of others for crimes defendant had committed," but he still could "consider those wrongful convictions in determining the sentence within the guideline range."

In Thomas v. US, 2004 WL 2674362 (D. Me. Nov. 19, 2004), Magistrate Judge Kravchuk recommends denying a defendant's federal habeas petition over claims that he was "sentenced under unconstitutional sentencing guidelines and his attorney was ineffective because he did not raise a challenge to the constitutionality of the guidelines."  The recommendation relies heavily on existing First Circuit holdings that Blakely has not (yet) clearly rendered the federal guidelines unconstitutional.

November 28, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Tuesday, November 23, 2004

Interesting reports from the front lines

I have received a few interesting responses to my post here this morning, in which I speculated that a vast number of sentencings have been postponed until Booker and Fanfan are decided.  Specifically, I have heard from two "in the know" folks in two distinct districts (in different circuits) who report that the pending Booker and Fanfan have had little impact on the federal docket — that is, sentencing hearings are generally not being delayed in these districts while the rest of us wait for Booker and Fanfan to be resolved. 

Notably, according to these reports, though sentencings are going forward in these two districts, they are going forward in distinctly different ways under distinctly different understandings of the applicable federal sentencing rules and procedures.  These anecdotal reports, of course, just feed my now ravenous desire for post-Blakely federal sentencing data from the USSC.

I highly encourage readers to use the comments or to send me e-mails with additional reports from the field.

November 23, 2004 in Blakely in Sentencing Courts | Permalink | Comments (1) | TrackBack

Blakely/Booker backup

I continue to be curious about — and eager to see data concerning — how many federal sentencings have been delayed awaiting a decision in Booker and Fanfan.  More anecdotal evidence suggesting many postponements can be found today in stories from Tennessee and Texas involving delayed judicial proceedings for two white-collar offenders pending the ruling in Booker and Fanfan.  (A noteworthy previous example can be found here.)

At the US Sentencing Commission hearing last week, I was given the impression that a very large number of the roughly 30,000 federal sentences that should have been handed down since Blakely have been postponed.  But I still have no sense of whether this means 1/4 or 1/2 or even 3/4 of all sentencings have been put on hold (and thus, as noted here, I will be thrilled when the USSC is able to make public the preliminary data it has collected concerning the post-Blakely state of federal sentencing).

Whatever the exact number, it seems clear that, after Booker and Fanfan are decided, the lower federal courts will have a huge backlog of postponed cases to process.  It will be interesting to watch if the Blakely backup has broad ripple effects next year on the administration of justice in the federal courts.

November 23, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack