Friday, August 27, 2004
Fascinating Ohio case (with lots of Blakely talk)
Ohio has been identified as a bellweather state in the upcoming national election (and my law school has created this cool Election Law site partially as a reflection of this reality). But now it appears that Ohio may become a Blakely bellweather: in addition to the thoughful work of OSU alum Judge Sutton in Koch (basics here), yesterday an Ohio intermediate court in State v. Taylor, 2004 WL 1900333 (Ohio App. Aug 26, 2004) issued an opinion which includes the most extended and thoughtful state court discussion of the impact of Blakely on a state sentencing system.
Because State v. Taylor, 2004 WL 1900333 (Ohio App. Aug 26, 2004), is both factually and legally rich, it merits two posts. In a post later today I will focus on the extensive Blakely analysis in the separate opinions of Judge James Sweeney and Judge Michael Corrigan. But first the opinion for the court, authored by Judge Anne Kilbane, deserves independent attention.
In Taylor, a jury found the defendant guilty of possession of drugs, and the sentencing judge imposed the maximum prison term available for a fourth degree felony. On appeal, Taylor claimed the judge's findings and reasons to support the maximum sentence, as required by Ohio law, were inadequate or improper. As Judge Kilbane explained, the court concluded that it "need not address whether the judge's determination was adequate, because we agree that it was improper."
The judge's determination was deemed improper as a result of a colloquy with defendant Taylor during which Taylor's lawyer instructed him not to answer a question seemingly related to charges on which he had been acquitted. At the end of the colloquy, the sentencing court asserted: "I find for the record he's not showing any remorse, he's served a prior prison term, and this is his fourth adult case. Mr. Taylor, I guarantee that you will offend again and therefore I feel that a maximum prison term in this case is necessary to protect the public from future crimes."
On appeal, the State of Ohio asserted that "the judge took into account Taylor's prior convictions to support the required finding that he posed the greatest likelihood of committing future crimes and, therefore, merited the maximum sentence." But the Ohio appeals court was not convinced:
[T]his colloquy also shows that the judge's sentencing decision was influenced by Taylor's refusal to respond to questioning about the money found in the car and on his person after the accident. The judge rejected Taylor's assertion of his constitutional right against self-incrimination on the grounds that the verdict had already been reached, and he found, without explanation, that Taylor's refusal to answer showed a lack of "remorse."
Regardless of whether the willingness or refusal to answer questions is evidence of a defendant's state of remorse, he retains the right against self-incrimination through sentencing, [Footnote 14: Mitchell v. United States 526 U.S. 314, 321 (1999)] and it is improper for a judge to punish a defendant for exercising a constitutional right. Moreover, judges must avoid even the appearance that sentencing decisions are tied to a defendant's exercise of constitutional rights, because such an appearance deters defendants from asserting those rights. Because the issue involves a constitutional right, we can uphold the finding only if we find, beyond a reasonable doubt, that the judge would have imposed the same sentence absent the error.
The colloquy shows an unavoidable juxtaposition between Taylor's refusal to answer and the judge's imposition of sentence. At the very least, a reasonable person could draw an inference ... that the sentencing decision was related, at least in part, to Taylor's refusal to answer the question. One cannot say, beyond a reasonable doubt, that the sentencing decision was not affected by his exercise of a constitutional right. One might even say that the colloquy shows that the judge imposed a more severe sentence on Taylor because he refused to admit he committed offenses of which he had been acquitted, and that the judge intended to sentence him for the acquitted offenses.
In either case, the imposition of sentence is tainted by the judge's apparent belief that Taylor had no constitutional right to assert, and his apparent umbrage at Taylor's assertion of that right. The judge erred when he determined that Taylor did not have a constitutional right to avoid self-incrimination at sentencing, and in determining that the exercise of that constitutional right was an aggravating factor in sentencing.
Because of this conclusion, the court was officially able to duck directly confronting Blakely issues, even though the "jury did not make a finding that Taylor posed the greatest likelihood of recidivism, nor did he admit such a thing." The court said "such [Blakely] issues can be raised on remand." However, as will be discussed in a subsequent post, Judges Sweeney and Corrigan wrote separately in Taylor because they apparently had a lot to say about Blakely.
Tuesday, August 24, 2004
Interesting sentencing case, though Blakely shaky
As briefly mentioned before, US v. Paulus, 2004 U.S. Dist. LEXIS 16427 (E.D. Wis., Aug. 6, 2004), merits its own post in part because it is the first decision I have seen in which a court confronts Blakely in the context of deciding to depart upward from the guidelines. The opinion is also worthy of a read simply because of its compelling facts (the defendant was a county district attorney who accepted 22 bribes over a two-year period), and because of the thoughtful and at times dramatic account by US District Judge William Griesbach of his reasons for departing upward. (A brief quote: "This offense and the conduct relating to it strike at the heart of the system of justice we having in this country and of which we are rightly proud.")
In Paulus, Judge Griesbach skates around apparent Blakely problems by first asserting that the defendant, though his plea agreement, "has admitted the essential facts upon which the court suggested that a departure may be warranted." This is accurate to a degree since the upward departure here is based in part on the number of bribes and amount of money received by the defendant. And these facts appear in Paulus' plea agreement.
However, the Paulus decision is quirky and perhaps Blakely shaky because the departure also seems to depend on a finding that the defendant's crime may have caused "a loss of public confidence in government." While conceding that Paulus did not admit to "the impact his offense may have had on the public," Judge Griesbach then asserts that "this is not the kind of sentencing factor to which Blakely is addressed." Unfortunately, Judge Griesbach gives no further explanation of this cryptic and important conclusion.
In addition, apparently to provide a back-up rationale for his decision, Judge Griesbach then asserts that if there was a Blakely problem, he would follow Judge Cassell's opinion in Croxford and just treat the guidelines "as guidance" (which, the judge indicates, he has already done "in other cases where the [Blakely] issue has been raised"). But then, after suggesting he might just treat the guidelines as advisory, Judge Griesbach works through a traditional guideline departure analysis with great analytic rigor and operates as if he believes he is legally bound by the guidelines in this case.
Saturday, August 21, 2004
Good timing (and good analysis) in Wisconsin
Just appearing on-line this morning is an interesting opinion in US v. Hamilton, 2004 U.S. Dist. LEXIS 16432 (W.D. Wisc. Aug. 17, 2004), in which District Judge Barbara Crabb thoughtfully explores whether a defendant's motion to reduce his sentence pursuant to 28 U.S.C. § 2255 based on Blakely is timely. The case is factually interesting because Hamilton seeks relief now though he was convicted over a decade ago and through his sentence became technically "final" in July 1994. The case is legally interesting because Judge Crabb astutely recognizes that Hamilton's Blakely claim, though now raised a decade after his conviction and sentence became final, might still be viable.
Judge Crabb first notes that defendant's "motion is not timely unless he can bring it under one of the exceptions to the usual one-year statute of limitations contained in § 2255." Working through the language of § 2255 and noting that to date "no court has held that ... the [Blakely] right applies retroactively to cases on collateral review," Judge Crabb ultimately concludes that Hamilton's "motion is premature." She then explains that "in these circumstances, the issue is whether [the 2255 motion] should be denied without prejudice, permitted but stayed or denied outright."
On the question of what now to do with the Hamilton's 2255 motion, Judge Crabb runs through the following thoughtful analysis:
On first consideration, it appears that defendant would not lose any rights if his motion were denied without prejudice. However, two matters give me pause.... As unlikely as it is, it is not beyond the realm of possibility that the Supreme Court would rule that Blakely applies to the sentencing guidelines, that this holding was obvious in the Blakely decision and that P 6 of § 2255 should be read as holding that the filing time begins to run on the day that the Supreme Court recognizes a new right, not on the day that the right is made retroactively applicable to cases on collateral review. If that were to happen, any defendant who had not filed within one year of the Blakely decision would be barred from obtaining the benefit of the decision.
The other factor is more likely and also more problematic. Now that defendant has filed his § 2255 motion with the court, I do not think I am free to ignore it or to treat it as anything other than the § 2255 motion it is intended to be. Thus, it becomes defendant's first filed § 2255 motion. If I deny it outright as premature, it is possible that the next motion that defendant files will have to be considered a second petition, subject to more onerous requirements under § 2255. To avoid this obvious prejudice to defendant, I will hold his present motion in abeyance, pending a decision on Booker. If in that case, the Supreme Court holds that Blakely does not apply to the sentencing guidelines, I will deny defendant's motion. If the Supreme Court reaches the opposite conclusion, I will allow the parties to brief the question of retroactivity at that time, together with any other issues that might bear on defendant's motion.
Friday, August 20, 2004
Federal and state news in Indiana
Marcia Oddi over at the Indiana Law Blog has this interesting post about Blakely rulings and Blakely influenced outcomes in the Indiana federal courts.
And some of my other Hoosier friends have sent me today an interesting decision from a state court of appeals, Carson v. State, No. 49A04-0310-CR-494 (Ind. Ct. App. June 11, 2004), coming from a petition for rehearing. Here are the highlights from a short opinion which can be downloaded below:
Now Carson asks this Court to find—pursuant to the recently-decided Blakely v. Washington, 124 S. Ct. 2531 (2004)—that his sentence violates his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury. Given that Carson did not challenge his sentence on direct appeal, he has technically waived review of this issue, and the appropriate procedure would have been to challenge his sentence through post-conviction relief. Waiver notwithstanding, after considering the merits of Carson’s challenge, we find that Blakely has no effect on his enhanced sentence....
Indiana courts have not yet considered what effect, if any, the Blakely opinion may have on Indiana’s sentencing scheme. Carson urges us to find that his enhanced sentence is improper because the trial court "made factual findings and entered an enhanced sentence upon those findings" without requiring that a jury make those findings beyond a reasonable doubt. Those factual findings—or aggravating circumstances—consisted of the following: a history of criminal and delinquent activity, which includes multiple convictions; a need for corrective or rehabilitative treatment that can best be provided by incarceration in a penal institution or in a work release facility; and the strong likelihood that, based upon his criminal history, he will commit battery again. As to the first aggravator, the multiple convictions that the extensive criminal history comprises have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely. The other two aggravating circumstances are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis. In any event, a single aggravating circumstance is adequate to justify a sentence enhancement. Therefore, even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, this finding would have no effect on Carson’s sentence.
Download carson_v. State.doc
The future of federal sentencing?
In a decision that is fascinating and breaks important new ground, US District Judge Jerome Simandle in US v. Harris, 2004 U.S. Dist. LEXIS 16239 (D.N.J. Aug. 18, 2004), explains the whys and hows of his use of a jury trial to establish sentencing factors in a complicated fraud case in which the government completed presenting at trial its case-in-chief on the very day Blakley was decided. The long opinion, which can be accessed here, is best summarized using the introductory paragraph of Judge Simandle:
On June 24, 2004, after twelve months of pretrial proceedings, ten days of trial, and the testimony of twenty-seven witnesses, the government completed its case-in-chief in this complex criminal case involving a conspiracy to produce and pass over ten million dollars in fraudulent money orders, and rested. On the same day, the United States Supreme Court issued its decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), a decision which called into serious doubt the constitutionality of the United States Sentencing Guidelines which permit a district judge to take into consideration, when sentencing a defendant, certain aggravating sentencing factors which he finds have been established by a preponderance of the evidence. The Blakely Court, considering a similar sentencing scheme in the State of Washington, held that a criminal defendant's Sixth Amendment right to trial by jury applies to aggravating sentencing factors, such that any fact, other than a prior conviction, that increases a sentence beyond the base offense range authorized by statute, unless stipulated by the defendant, must be proved to a jury beyond a reasonable doubt. This Opinion details the steps that this Court took to manage the continuing trial before it and to protect the rights of the five defendants involved, in light of the new legal landscape (and indeed the uncertainties) created by the Blakely decision. The defendants have asserted that no sentencing factors trial should be convened because these factors were not squarely presented to a grand jury and contained in the Indictment. The Court rejected that argument and conducted the sentencing phase trial to the jury after due notice to defendants, for reasons stated herein.
The story (or should I say saga) of this Harris case is factually and legally quite interesting, and Judge Simandle is to be complimented for his thoughtful work both on the fly during trial and in this written opinion. Has he given us a glimpse into the future of federal sentencing?
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
A jury trial on criminal history?
Yet again, fewer Blakely media stories (background here), but great intrigue therein. Specifically, this article from The Wichita Eagle suggests that US District Judge Monti Belot has concluded, after a prosecutor moved to depart upward from the federal guidelines on the basis of a defendant's criminal history involving many previous DUI convictions, that "the Blakely ruling won't allow him to depart from the guidelines without first holding a jury trial."
August 18, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack
Tuesday, August 17, 2004
More interesting (if dated) news from Florida
Perhaps we should blame Hurricane Charley for keeping this decision from getting on-line sooner, but I just found the very interesting ruling in US v. Grant, 2004 WL 1803196 (M.D. Fla. Aug. 12, 2004), issued by US District Judge Timothy J. Corrigan last week. Here's how Judge Corrigan made sense of how Blakely impacts federal guidelines sentencing in Grant:
Although guidance from the Eleventh Circuit and the Supreme Court on Blakely's effect on the United States Sentencing Guidelines is forthcoming, the undersigned cannot further postpone sentencing hearings until my superiors decide this issue. Any court is loath to rule that an enactment of Congress is unconstitutional. This is especially true when the entire congressionally mandated federal sentencing scheme is at risk. Thus, I have searched diligently for a way to uphold the Guidelines in their entirety post-Blakely. However, I have come to a conclusion which I think is inescapable: The rule of constitutional law announced in Blakely does apply to the federal Sentencing Guidelines. I so hold.
There have been a slew of Blakely opinions from other courts, district and appellate, which I have read and carefully considered. There is no need to replicate those scholarly efforts here. Instead, what follows is a summary of my holdings and how I intend to proceed until I receive appellate guidance:
1. The Supreme Court's decision in Blakely applies to the United States Sentencing Guidelines.
2. If the Guidelines would require a judge to enhance a sentence by finding facts beyond those "reflected in the jury verdict," the Guidelines are unconstitutional as applied.
3. In a case involving a plea agreement that does not waive Blakely rights or contain sufficient factual admissions to support applicable Guidelines enhancement provisions, the Guidelines are unconstitutional as applied.
4. The Guidelines can be constitutionally applied when there is no judicial factfinding that increases the defendant's sentence beyond the range dictated by the facts found by the jury. Thus, if the judge does not enhance a sentence based on additional factual findings not made by the jury, either because the judge determines that no enhancements are applicable or a sought after enhancement is not proven, the Guidelines may be constitutionally applied.
5. The Guidelines can be constitutionally applied when a plea agreement waives Blakely rights and allows the judge to determine enhancements under the Guidelines, or a plea agreement contains factual admissions which allow the judge to enhance under the Guidelines.
6. In a case where the Guidelines are inapplicable because they are unconstitutional as applied under Blakely, the Court, pursuant to 18 U.S.C. § 3553(b)(1), will sentence the defendant pursuant to 18 U.S.C. § 3553(a). Under 18 U.S.C. § 3553(a), the Court's sentence is informed by the factors contained therein and by the Sentencing Guidelines, but is indeterminate so long as it does not exceed the statutory maximum or fall below the statutory minimum.
7. Including sentencing enhancements under the Sentencing Guidelines in the indictment and attempting to prove them to the jury at trial is unauthorized and therefore unavailable.
8. Empaneling a sentencing jury is not authorized by law and is therefore unavailable.
9. The Court will conduct all sentencings under the Guidelines as before Blakely so that all Guidelines issues are addressed. The Court will also consider all issues relevant under 18 U.S.C. § 3553(a). If the Court can constitutionally apply the Guidelines, it will. If the Court determines at the sentencing hearing that the Guidelines cannot constitutionally be applied (because the Court is required to apply an enhancement prohibited by Blakely), the Court will impose an indeterminate sentence pursuant to 18 U.S.C. § 3553(a), and will also impose an alternative Guidelines sentence in the event the Guidelines are found to be constitutional after appellate review.
10. The undersigned will apply these principles on a case-by-case basis until I either achieve greater wisdom which causes me to reconsider or my superiors on the Eleventh Circuit or Supreme Court give me guidance.
Monday, August 16, 2004
District judges keep up the good work
Perhaps if your surname is Holmes and you are a judge you have no choice but to perform at a high level. Whatever the explanation, Chief Judge Sven Erik Holmes of the Northern District of Oklahoma continues his impressive Blakely work through a recently entered order in US v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004), which can be downloaded here:
Download us_v. Leach.pdf
The order in Leach contains all of the impressive and thoughtful reasoning set forth in Judge Holmes' decision last week in US v. O'Daniel (details here and commentary here). But Leach is a distinct and important read in part because the case involves an embezzlement offense with interesting sentencing issues relating to the scope of the crime and amount of loss. In Leach, Judge Holmes reiterates his view, based on his reading of Blakely and waiver analysis, that he can constitutionally still serve as a sentencing factfinder, but must do so using a higher evidentiary standard and with the rules of evidence in force. In other words, Judge Holmes has devised an interesting (and I think jurisprudentially sound) way to "split the Blakely baby."
As indicated at the end of the opinion, the defendant in Leach was ultimately unhappy with the outcome of Judge Holmes' Blakely baby splitting; the defendant has already announced her intention to appeal to the Tenth Circuit.
Saturday, August 14, 2004
The Empire Strikes Back
After another week of quirky work by the federal circuit courts, as of this writing there are now more circuits which are requiring its district courts to apply the federal guidelines as written (the Second, Fourth and Fifth), than circuits which are requiring modifications in light of Blakely's constitutional requirements for sentencing enhancement (the Seventh and Ninth). Of course, there were periods of time in which the federal guidelines were unconstitutional in the Sixth and Eighth Circuits, but en banc efforts of these courts have clouded the applicable rules in these jurisdictions.
This new circuit reality is stunning, in part because the vast majority of district court judges to issue written sentencing opinions since Blakely have concluded that they can no longer constitutionally apply the federal guidelines as written. It also is disconcerting because, as Ron noted in his discussion of the Second Circuit's Mincey ruling (details here), it would be very valuable for the Supreme Court and Congress and the Sentencing Commission to be able to draw on the insights and experiences that emerge when lower court judges seriously struggle with developing a constitutionally viable and sound sentencing system in the wake of Blakely.
I know my own understanding of both Blakely and post-Blakely sentencing realities has been critically informed and enhanced by district court rulings like Judge Goodwin's work in Johnson and Shamblin, and Judge Enslen's work in Hakley, and Judge Holmes' work in O'Daniel, and Judge Lynch's work in Emmenegger, and Judge Battaillon's work in Swan and Terrell, and Judge Singal's work in Zompa, and Judge Gertner's work in Meuffleman, and Judge Presnell's work in King, and Judge Rakoff's work in Marrero, and Judge McMahon's work in Einstman, and Judge Kaplan's work in Roberts, and Judge Weinstein's work in Khan, and Judge Stewart's work in Montgomery, and of course Judge Cassell's work in Croxford. And this long list of insightful and informative district court decisions necessarily leaves out all the other important and thoughtful work done by federal district judges (more details here and here and complete reports at this link).
Sadly, the list of thoughtful, insightful and informative post-Blakely circuit court rulings is much, much shorter.
August 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Blakely in the States, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack
Friday, August 13, 2004
Judge Goodwin speaks about alternative sentencing
Though I am still in transit home from a week away, I have the benefits of a fast internet connection tonight and not a moment too soon. There is a lot of end of the week news to report (in posts to follow), but at the top of the list is (another) fantastic opinion from Judge Joseph Goodwin of the Southern District of West Virginia in US v. Johnson, No 6:04-00042 (S.D. W. Va. Aug. 13, 2004). In Johnson, Judge Goodwin explains why he declines to follow the Fourth Circuit's recommendation in Hammoud (background here) to impose an alternative sentence treating the guidelines as advisory after imposing a first sentence under the guidelines. The full opinion, which can be downloaded below, is a wonderful read. Here's a taste:
To deal with uncertainty wrought by Blakely, a few courts have suggested that imposing alternative sentences may prevent further disarray once Blakely's effect on the Guidelines is more clearly established. These courts cite no authority for the proposition that a court may impose an alternative sentence. Presumably, the validity of these alternative sentences depends upon some inherent power of the sentencing court to act in the interests of judicial economy.
Although preserving judicial resources is a worthy goal, it is not equal to the goal of maintaining confidence in our justice system. People must believe — and courts must assure — that judgments depriving citizens of their liberty are required by law and lack neither finality nor certainty. Confidence in the system is undermined when a judge treats a defendant like an unruly child ordered to go to his room and stay there until the courts determine a just punishment. I respectfully decline, without binding direction, to play the role of wavering disciplinarian.
Hypothetical sentencing is an abdication of my duty to decide legal issues. It is surely unprincipled, if not unlawful, for lower courts to describe alternatives and present those alternatives to a higher court for a final, binding decision. Summarizing the relevant legal arguments and offering possible conclusions is not judging. Judicial decision-making, like the adversarial process upon which it stands, thrives on the pressure of reaching — and explaining — a single result. Formulating multiple-choice questions to be answered by a higher court is an inappropriate and injudicious substitute for deciding a case.
Here, of course, the Fourth Circuit has made a decision that Blakely does not apply to the Guidelines. It has also recommended, however, that this court give an alternative sentence that would presumably take effect if the Supreme Court disagrees. My concern is that district courts and appellate courts must routinely make decisions that may be affected by cases pending on appeal before higher courts. If the function of lower courts is reduced to offering up a this-or-that option for later judgment, then the intellectual rigor promoted by the pressure to decide the issue is eliminated. Put simply, judicial decision-making is an act best performed without a net.
Great stuff (and there is more in the full opinion) which merits lots of attention:
Download us_v. Johnson (Goodwin opinion re no alternative sentence).wpd
UPDATE: Here's a link to a pdf version of Johnson if the WordPerfect version is giving you fits.
Interesting insights from Michigan
Only late Thursday night did I have the chance to read a thoughtful opinion sent my way from the chambers of Judge Richard Alan Enslen of the US District Court for the Western District of Michigan. In US v. Hakley, No. 1:02-CR-159 (W.D. Mich. Aug. 12, 2004), Judge Enslen adds himself to the list of jurists finding the federal sentencing guidelines unconstitutional after Blakely, though he does so in the course of a re-sentencing in which this finding allows him to re-impose a sentence that the Sixth Circuit had previously reversed.
In Hakley, Judge Enslen first notes that "some courts have decided to delay sentencings until the status of the Guidelines is determined by the Supreme Court," but then explains that he "finds the need to sentence defendants expeditiously outweighs the benefits of waiting for the Supreme Court to act." He goes on to conclude "that Blakely does apply to the United States Sentencing Guidelines because of the similarities between the federal and Washington state’s sentencing systems, and because of the wording of Blakely itself." In a telling turn of phrase (which the Second Circuit should read closely), Judge Enslen says he "believes Blakely's redefinition of the term 'statutory maximum' has changed the judicial landscape too much for the guidelines to be propped up by mere implication."
Judge Enslen thereafter concludes that "the Guidelines are not severable and that Blakely therefore renders them wholly unconstitutional in all cases." He explains that he "finds that the Guidelines must be struck down in their entirety because severance would frustrate at least two of the three objectives of the Guidelines.... A sentencing system that applies only in certain cases or that allows for decreases but not increases in a defendant’s sentence is neither uniform nor proportional."
Finishing his general analysis with a flourish, Judge Enslen says "the Guidelines should be returned to their originally intended state, a system designed to structure rather than dictate judicial discretion." This can be achieved by regarding the guidelines as non-binding but advisory: "By treating the Guidelines as advisory rather than mandatory, judges will gain the benefits of having a comprehensive set of recommendations available to them while avoiding the drawbacks of being forced to follow those recommendations even when they are clearly inapplicable."
Then, turning to the specific of the case before him, Judge Enslen uses his new sentencing freedom to re-impose a sentence that the Sixth Circuit had reversed (and instructed to be lower) in application of the guidelines. In so doing, Judge Ensler had a few choice words about the "alternative sentencing" approach:
The Court will not issue an alternate sentence at this time. Any pronouncement of an alternate sentence would be mere dicta and of little use to the court. Furthermore, in many cases, courts would have to impose at least three alternative sentences for defendants: one applying the Guidelines in their entirety, one applying all Guidelines except those that enhance a defendant’s sentence, and one non-Guidelines sentence. Finally, the benefits of alternative sentences are unclear given the fact that the alternative sentence could not be imposed without further hearing.
You can download the whole opinion, which is worth a full read, here:
Thursday, August 12, 2004
The Myth of Economical Parallel Sentences
Post from Ron:
As part of my "Ron Meets the Real World Tour," I have been chatting lately with prosecutors and defense attorneys in federal court, especially in the Fourth Circuit. You may recall that the Fourth Circuit, in Hammoud (background here), held that the guidelines were still constitutional but also "recommended" that district judges impose an "alternative" sentence treating the guidelines as advisory.
Based on my conversations so far, it appears that few district judges are accepting the invitation from the Fourth Circuit. They are imposing sentences under the guidelines without adjusting local practice to allow for a parallel "advisory guideline" process. The reason the judges often give is that the alternative sentence, meant to conserve judicial resources, will not accomplish this goal. Doug saw this one coming, although the details about why alternative sentences are not economical remind us how much we miss when viewing the world from the vantage of an appellate judge.
The district court judges point out that if the Supreme Court does rule that the guidelines are unconstitutional, the sentences imposed in the meantime will all be remanded for sentencing anyway. Assuming that an "alternative" sentence exists somewhere in the record, it will not be formally recorded in the judgment but will be buried in the transcript somewhere, and the proceedings may not even be transcribed at that point. The defendant will also have the right to be present during the resentencing on remand, if only to hear the judge repeat the earlier "alternative" conclusion. Finally, a decision to impose an alternative sentence at this point requires all the parties to anticipate the facts that might be relevant under new law, and the procedures best suited to uncover the relevant facts. The attorneys will probably not be satisfied at some later date with the preliminary judgments they made on these questions the first time around, and will be asking to re-open some questions.
In short, given the paperwork involved in preparing for a resentencing, the necessity to schedule a hearing anyway, and the likely pressure from attorneys to reopen the merits, the judges believe that the alternative hearing will not truly save them much effort. Thus, for at least some districts in the Fourth Circuit, life goes on as if Blakely never happened ... for now.
UPDATE: This story from the Charleston Courier and Post describes the decision by Judge Duffy in the District of South Carolina to impose three separate sentences: a guideline sentence, a guidelines-as-advisory sentence, and a sentence ignoring only the sentence-enhancing components of the guidelines. The story notes that this is the first case to be sentenced in the district since Blakely. So it looks like the Fourth Circuit's advice is being heeded in some districts. What remains to be seen is which is truly the most efficient response to the current uncertainty.
Wednesday, August 11, 2004
DWI, Word on the Street in NC, part II
Post from Ron:
I posted some observations earlier about the reaction of some state prosecutors in North Carolina to Blakely. I have continued to visit with prosecutors and defense attorneys around the state (part of my annual "Ron Meets Real World Tour") and the story gets more varied and interesting by the day.
While the prosecutors in some jurisdictions in North Carolina have taken no steps yet to restore the use of aggravated range sentences, attorneys in one urban jurisdiction tell me that the District Attorney moved right away to seek aggravated range sentences in some cases. Three aspects of the new practice are worth noting here.
First, the procedure is fulsome, but not without precedent. The prosecutors allege sentencing enhancement factors in the indictment and stand ready to prove those facts to the trial jury in bifurcated proceedings (not yet explicitly authorized by statute) beyond a reasonable doubt. The details for this procedure are drawn from existing practices to prove a defendant's status as a "habitual felon" or to prove a firearms enhancement.
Second, the practice is selective. Prosecutors are picking out higher priority cases, where the aggravated range can add some pretty substantial amount to the sentence duration (a finding of aggravated circumstances in North Carolina does not affect the available dispositions). As one might expect, more serious crimes of violence are the main targets of this effort.
Third (and for me most interesting), much of the action right now takes place in DWI cases. These crimes are sentenced outside the normal "structured sentencing" framework in North Carolina, and they depend fairly routinely on the finding of various aggravating factors after the basic conviction for driving while impaired. For instance, driving with a person under 16 years of age in the car is an aggravating factor that can increase the authorized sentence range. In this more routine reliance on enhancements, the North Carolina DWI law resembles the federal "relevant conduct" structure. It makes sense, now that I think about it, to find that most of the Blakely action in North Carolina is happening where the state system most closely resembles the federal.
Blakely's impact on restitution and habeas
With so many possible Blakely cases and dockets already overburdened, it is perhaps not surprising to see courts giving a judicial stiff arm to many Blakely claims. (The Eleventh Circuit's recent work in Curtis and Levy denying defendants even the opportunity to raise Blakely in pending cases is an obvious example.) But the sloppy jurisprudence we are seeing as courts sack defendants' Blakely arguments is both discouraging and disconcerting.
For example, the Tenth Circuit yesterday seemed to fumble a Blakely issue concerning a restitution order in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004). In Wooten, the court rejected the defendant's claim that a restitution order based on judicial factfinding violated Apprendi, and in a footnote stated that "Mr. Wooten's Blakely argument fails for the same reason as his Apprendi argument, which is that the amount of the restitution award does not exceed any prescribed statutory maximum." But because Blakely changed our understanding of what Apprendi means by "prescribed statutory maximum," I am pretty certain that the analysis is not so easy. More generally, the playbook on exactly what Blakely means for restitution orders is going to take a lot of judicial time and energy to work out.
Similarly, US District Judge Philip G. Reinhard in US v. Lowe, 2004 U.S. Dist. LEXIS 15455 (N.D. Ill. Aug. 9, 2004), also dropped the ball concerning the possible application of Blakely in a habeas case. In Lowe, the court relies on the Supreme Court's decision in Shriro to find "that Blakely does not apply retroactively to motions under § 2255." But, as previously stressed here and here, it is improper for a court to rely on Shriro alone to find Blakely not retroactive (in part because Shriro did not have to consider the critical issue of a change in the applicable burden of proof).
August 11, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Tuesday, August 10, 2004
Last One Standing
Post from Ron:
As Doug noted in an earlier post, Judge Cassell is hearing arguments in United States v. Weldon Angelos about the interaction between mandatory minimum sentences and the Blakely decision. Given that federal sentencing law comes from many sources -- not just the Sentencing Reform Act of 1984 -- it is worth asking exactly what laws we mean when we discuss "severability."
To add to the amicus brief in the Angelos case posted earlier, I've now received the brief filed by defense attorney Jerome Mooney. A link for downloading appears below. The brief frames the issue this way:
The single question then presented by the Court’s resent request is whether in the 20 years of legislative action following the implementation of the guideline system and its integrated sentencing system, minimum mandatory sentencing provisions, and particularly those encompassed in 18 U.S.C. 924( c) have become an integrated and dependant part of that system such that they rise or fall with the constitutionality of the system as a whole.
The traditional argument at the heart of the brief is that the Congress in 1984 intended to create an integrated system for sentencing. The brief also breaks some new ground in pointing out that some mandatory minimum statutes (especially 924(c)) have been amended often over the years in ways that suggest Congress thought of the laws as part of an integrated sentencing system, rather than crime-specific "overrides" of the guidelines system.
Setting aside the constitutional and statutory interpretation questions, it would be truly abhorrent as a policy matter if the only component of federal sentencing left standing were the mandatory minimum penalties.
Sunday, August 08, 2004
Word on the Street in NC
Post from Ron:
I spoke earlier this week with the prosecutors in an urban office in North Carolina about Blakely, and their comments fit in fascinating ways with the observations of the Minnesota Sentencing Commission (background here). As in Minnesota, the basic structure seems to be holding water, and the number of affected cases is pretty small. Basically, these prosecutors were not terribly worried about Blakely in the short run. Although the case will almost surely prevent all "aggravated range" sentences (the North Carolina equivalent of upward departures), those were only 7% of the sentences imposed last year. For high-volume crimes like drugs or property offenses, it is simply not worth the effort right now to move from the presumptive range (say, 16 to 20 months) up to the aggravated range (say, 20 to 24 months). Volume, combined with the limited benefits of upward adjustments, convince most prosecutors not to bother with new techniques to obtain jury findings.
That being said, there are two settings that might prove more worrisome for these prosecutors in the future. First, they anticipate filing superseding indictments and perhaps asking for bifurcated jury proceedings in homicides and serious violents crimes, because the potential upward adjustments to sentences are much larger here. And second (consistent with comments from Minnesota), they believe that the "custody status" point (see background memo by Robert Farb linked here) will be important to them in a fairly large number of cases, where the extra point can bump a defendant into the next highest criminal history category.
Saturday, August 07, 2004
O' Daniel is a dandy
I have now had a chance to read closely Chief Judge Sven Erik Holmes' opinion in US v. O'Daniel, and I want to encourage folks to put the opinion on the top of their Blakely reading list. Though Ron provides some important highlights here (and Jason Hernandez does the same at the Blakely Blog here), the O'Daniel opinion makes too many important holdings and insightful observations to be fully captured through a brief summary. In addition, two critically important realities leap from the page in O'Daniel:
1. Judge Holmes emphasizes the distinction between Blakely's recognition of the jury right and of the right to a beyond a reasonable doubt standard of proof, and he concludes that a defendant could (and in this case did) make a valid waiver of the right to jury factfinding, but could not "waive down" the standard of proof. This distinction is very important in a lot of settings besides waiver (e.g., considerations of retroactivity and plain error), and it also is a reminder that the burden of proof issues may, over time, be much more important in the post-Blakely world than the jury versus judge as factfinder debate.
2. The sentencing world in Judge Holmes' courtroom seems so much more orderly and predictable than in those courtrooms in which judges have declared the entire guidelines system unconstitutional. No alternative sentencing, no questions about which parts of the Sentencing Reform Act are still in force, no question about whether parole is back or supervised release is gone, no question about the continued applicability of appellate review. In other words, Judge Holmes has presented a sound and sensible way to maintain our old guidelines world while still making it compliant with the Sixth Amendment and the dictates of Blakely.
Friday, August 06, 2004
Waiver and the Fine Print
Post from Ron:
Chief Judge Sven Erik Holmes of the Northern District of Oklahoma filed an order today (download available below) in United States v. O'Daniel, holding that Blakely applies to the federal guidelines and sentencing the defendant under modified procedures.
The distinctive feature of this case deals with waiver: the defendant waived a jury trial before Blakely in a plea agreement rich in factual detail. When the judge proposed vacating the guilty plea in light of Blakely, the defendant refused to return to status quo ante and renegotiate. Instead, he insisted on sentencing under the plea agreement, but with the upward adjustments to the offense level no longer available.
The judge went forward with sentencing, taking at face value the defendant's plea agreement statement (remember, this was drafted pre-Blakely) that allowed the judge to enhance the sentence based on judicial factfinding. By the same token, the judge refused to accept the Government's contention that the standard of proof should remain preponderance of the evidence, and instead found the relevant facts beyond a reasonable doubt.
It's a tricky question, and likely to occur. Which provisions of existing plea agreements will be enforced (especially when defendants refuse to start over) and which will the judge ignore?
The opinion also addresses the details of waiver in future cases, and notes that the court will insist that any waiver of trial must also include a waiver of jury factfinding for sentence enhancements -- no partial waivers allowed. And finally, the opinion notes that in some cases, judges may need to order bifurcated federal trials, where the sentence enhancements would prove too prejudicial in the guilt-innocence trial.
Another fascinating read from a District Court
The Vera Institute's report, "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems," provides a stunning view of the post-Blakely world from a system-wide perspective. In contrast, US District Judge Gerald Lynch's recent opinion in US v. Emmenegger (details here) provides a stunning view of the post-Blakely world from a case-specific perspective.
Among other virtues, Emmenegger provides the most thorough and thoughtful iteration of the impact of alternative sentencing schemes in the wake of Blakely, while also providing a mini-primer on relevant sentencing considerations along the way. Interestingly, Judge Lynch's opinion exhibits a hint of grumpiness about the Second Circuit's failure to provide guidance to its district courts and also takes a swipe a Blakely's formalism. And this is all in service to reaching the (interesting but contestable) conclusion that "sentencing guideline systems seem more analogous to the kinds of fact-finding that judges historically performed under discretionary sentencing regimes, and less comparable to the creation of innumerable degrees of separate crimes."
Though Emmenegger is full of interesting facets — including Judge Lynch's conclusion that he would impose a sentence of 33 months under the guidelines, but a sentence of only 24 months if the guideline were not legally binding — I am always drawn to court's severability analysis. And, once again, I feel like we are left with more questions than answers (compare here).
Judge Lynch states clearly his view that if upward enhancements based on judicial fact-finding are unconstitutional, then "the entire structure of the Guidelines must fall." Slip op. at 39. And yet, because Judge Lynch treats 18 USC 3553(a) as if it were still legally binding even if the guidelines were wholly unconstitutional, see slip op. at 21, it seems as though he believes the SRA (or at least a key portion thereof) would remain in force even as the Guidelines fall. But Judge Lynch never explains why part of a statute designed to create binding Guidelines is severable from the constitutionally infirm "entire structure" that this statute authorized. He also never indicates whether other parts of the statute — e.g., the elimination of parole, the creation of suprevised release, the authorization of appellate review — stand or fall in light of his severability analysis. In addition, Judge Lynch speaks of the intention of the Sentencing Commission in his severability anlysis, see Slip op. at 39, though I am left to wonder why a judicial branch agency's intent is directly relevant to a severability question considered a matter of "legislative intent." (Perhaps we could claim that Congress adopts the Commission's intent (or vice versa), but the disgreements between Congress and the USSC over the PROTECT Act highlight that these bodies might often have quite distinct intentions.)
Of course, since the severability analysis is all dicta, perhaps I cannot rightly fault Judge Lynch for not providing a fuller analysis. And yet, this is important dicta since Judge Lynch concludes that "the Court will in all future cases announce its alternative view of an appropriate sentence if the Court has discretion to impose sentence within the statutory range." And this decision to announce alternative sentences is itself intriguing in that Judge Lynch assails the idea of employing "sentencing-jury trials" because they are "completely unauthorized by any constitutional provision, statute, judicial precedent or tradition." Slip op. at 40. And yet, I think the exact same charge could be leveled against the announcement of alternative sentences, since such a practice is at least arguably "completely unauthorized by any constitutional provision, statute, judicial precedent or tradition."
Thursday, August 05, 2004
Just when you thought it was safe to go into the blog...
On a day I was hoping would be quiet so I could wrap up critical pre-vacation tasks, we get yet one more major event: another thoughtful and insightful (and long) Blakely opinion from district judge who is rightly regarded as an intellectual leader in the field of sentencing. Available for download below is US District Judge Gerald Lynch's opinion in US v. Emmenegger. As an esteemed sentencing scholar noted when sending me this opinion:
Like Judge Nancy Gertner, Judge Lynch is one of the most sophisticated judges on the federal bench in sentencing issues. And yet we see Judges Gertner and Lynch at odds on the main issue: Judge Lynch "remains convinced" of the constitutionality of the federal guidelines (Emmenegger at 38) while Judge Gertner sees "no question that [Blakely's] test applies to the federal guidelines. " (Mueffleman at 22). Further proof was not needed that the Supreme Court has rendered the current law in this field unintelligible, but here it is.
Paging habeas experts...
Though a number of courts have already spoken to Blakely retroactivity issues in various ways, I believe the new decision by Senior US District Judge Thomas J. McAvoy (NDNY) in Garcia v. US, 2004 U.S. Dist. LEXIS 14984 (NDNY Aug. 4, 2004), is the first to do a complete Teague retroactivity analysis in order to deny a federal petitioner relief on a Blakely habeas claim.
Because I am not an expert on habeas law, I am hesitant to say Garcia got the law all wrong. But, I think I see at least two major flaws in Garcia's analysis of Blakely's retroactivity:
First, Judge McAvoy starts his analysis by asserting "Blakely did not announce a new rule of law, but extended the rule in Apprendi holding." Id. at *14. I believe, if this is the case, then the Teague doctrine limiting retroactivity does not even apply. I am pretty sure Teague is a doctrine which applies only to "new" rules, not to the application of old rules. I believe this is why Justice O'Connor in her Blakely dissent said that, despite the High Court's holding in Schriro that Ring was not retroactive, "criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack."
Second, when Judge McAvoy launches into his Teague analysis, he relies very heavily on the Supreme Court's decision in Schriro to conclude "Blakely cannot be said to establish a watershed rule of criminal procedure," id. at *16-*18, and thus does not fit into Teague's second exception to its doctrine limiting retroactivity of new rules. However, as I previously highlighted here, in Schriro there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion in Schriro); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely.
Because habeas law is so complicated doctrinally, both as a consequence of Teague and its progeny and also because of Congress' restrictions on habeas in AEDPA, my analysis here of Judge McAvoy's ruling in Garcia may be all washed up. But because this issue is so important, I hope readers more knowledgeable about habeas law might use the comments for any important corrections or clarifications.
Wednesday, August 04, 2004
Confusion? Chaos? Anarchy? We need a new noun!
We have already seen Blakely turned into an adjective in talk of "Blakely-izing" indictments or trials, but it may be time for Blakely to enter the lexicon as a noun to describe mass confusion and uncertainty in the law — perhaps in the way Fred Merkle's boner added to our vocabulary nearly a century ago. (Fans and non-fans can read all about Merkle and his place in baseball history here and here and here).
The latest evidence of the chaos arising in the wake of Blakely come from two sources: (1) an amazing decision by Judge Joseph Bataillon from the District Court of Nebraska in US v. Swan, 2004 U.S. Dist. LEXIS 14883 (D. Neb. Aug. 2, 2004), and (2) a peculiar paragraph from the Fourth Circuit in US v. Smith, 2004 WL 1729821 (4th Cir. Aug. 3, 2004).
1. Judge Bataillon's opinion in Swan could launch a thousand law review articles, so for now I can only give the highlights. Let me just quote (with citations omitted) from the decision itself:
[I]n reliance on Blakely, the Eighth Circuit Court of Appeals has now found the sentencing guidelines wholly unconstitutional. United States v. Mooney.... Under principles of stare decisis, decisions of the Eighth Circuit Court of Appeals have precedential value and must be followed by the district courts within the Eighth Circuit. Nevertheless, the court finds it is not bound to follow Mooney at this time, since the appeals court decision is not yet final.
Stare decisis is similar to the doctrines of res judicata and collateral estoppel, which require a final judgment, although stare decisis does not draw its force from the policy that protects final judgments. Instead, stare decisis stems from the principles of stability and equal treatment underlying the orderly development of legal doctrine. In circumstances such as these, the court finds that principles of stare decisis require restraint in the use, as precedent, of a decision that is not yet final.
[U]ntil the mandate in Mooney issues, this court is not obliged to follow the dictates of the Mooney decision. Until such time as the Mooney decision becomes a final judgment accorded precedential effect, this court is compelled to apply its own understanding of the Supreme Court’s holding in Blakely. This court remains convinced that the proper reading of Blakely would allow a court to follow the guidelines as long as factors increasing the "maximum," as defined in Blakely, are charged in the indictment and either admitted or submitted to a jury (or the court if a jury is waived) under the standard of proof beyond a reasonable doubt. See United States v. Terrell, No. 2004 WL 1661018 (D. Neb. July 22, 2004).
The court believes the Eighth Circuit’s adoption of U.S. District Judge Cassell’s rationale as set forth in Croxford, 2004 WL 1521560 at *12-13, is untenable and may not withstand scrutiny on review.
There is a lot more important reasoning in the Swan opinion, but this discussion of stare decisis and the statement that "this court is compelled to apply its own understanding" of Blakely leaves me (pleasantly) gobsmacked.
2. Though less startling and clearly less thoughtful, perhaps no less important is this footnote from a per curiam Fourth Circuit decision in Smith. Issued the day after the Fourth Circuit's en banc order in Hammoud telling its district courts to follow the federal guidelines (while also recommending the imposition of backup sentences (background here)), here's what the Fourth Circuit's Smith decision says in a concluding footnote:
In a motion to remand filed July 16, 2004, Smith, through counsel, requests that her case be remanded so that the district court can have the opportunity to rehear the sentencing issue in her case in light of Blakely. Because we vacate Smith's sentence here and remand for resentencing, we leave to the district court in the first instance the application of Blakely, if any, in the determination of Smith's sentence. Accordingly, the motion to remand, opposed by the government in its response filed July 23, 2004, is denied as moot.Smith, 2004 WL 1729821 at n.3 (emphasis added). Huh??
August 4, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack
Tuesday, August 03, 2004
Ladies and Gentleman, stop your engines...
I find it a bit humorous that the same state that brings us the Indy 500, called "the greatest spectacle in racing," now has a US Attorney urging the federal sentencing system to shift into neutral until the Supreme Court rules on Blakely's applicability in the federal system.
Marcia Oddi over at the Indiana Law Blog effectively provides the basic details here of the "Motion by the United States for en banc Determination by the District Court to Stay All Scheduled Sentencing Hearings Pending Resolution By the United States Supreme Court on the Application of Blakely to the Sentencing Guidelines." And here is the link to the motion itself and its supporting memorandum.
Here are a few highlights from US Attorney Joseph Van Bokkelen's fascinating stay motion:
Federal sentencing has reached a crisis. To borrow Judge Easterbrook’s word from his Booker dissent, the entire federal criminal process is "discombobulated.”... There are any number of sentencings currently pending in the Northern District of Indiana. The government respectfully requests that all such sentencings be stayed pending the apparent expedited resolution by the Court.
The government notes that in the Motion to Expedite before the Supreme Court, reference is made to the fact that the District Court for the Southern District of Ohio has apparently entered a 30 day stay on all sentencings in cases that could be affected by Blakely. A similar order could be fashioned in this district, i.e. an initial 30 day stay to be then reviewed to assess developments in the Supreme Court. The government acknowledges that a request for an en banc order is rare and may indeed be the first such request in this district. Other districts have employed an en banc procedure to address issues of fundamental importance and commonality in cases pending before its district judges....
The government respectfully suggests that all participants in the criminal justice process and the important interests of the public in some finality to that process will be well served by staying all sentencings until this issue is resolved. [FOOTNOTE 6: The government recognizes that if the Supreme Court does not act reasonably soon, cases will have to proceed. It appears however that the Court may act very soon and that possibly by this fall there will be clear guidance. This court could fashion an order, for example, staying sentencings for a fixed period to be re-evaluated at the end of that period for any developments.] There is just too much uncertainty to proceed at this time. Proceeding to sentencing may result in different judges reaching different decisions, thereby treating defendants differently. The Supreme Court’s decision might require any number of sentencings to be redone, thereby straining judicial, governmental and defense resources. Everyone will be well served by waiting until we have clear guidance from the Supreme Court. At that time sentencings can proceed with certainty and finality.
Commentary: Like everything else in this crazy Blakely world, this motion is very sensible and very questionable. The government makes a sound case for putting everything on hold, but can all sentencings wait months for a Supreme Court decision? The motion suggests "an initial 30 day stay," but we now already know that it will be more than 60 days before the Supreme Court even hears Fanfan and Blakely. And an actual ruling by the Court likely will take another month or more. (Recall that the Supreme Court just last term returned early to hear argument in early September concerning challenges to new campaign finance laws, but the Court was not able to hand down an opinion until more than three months later in mid December.)
For defendants indisputably facing a prison sentence of many years, a sentencing delay of several months may not be a big deal. But, according to these USSC data, dozens of defendants in the Northern District of Indiana in a typical year receive only probation or a sentence of less than a year. Placing these folks in sentencing limbo for many months seems potentially problematic (although I suppose every sentence is in some form of limbo no matter how courts proceed these days).
Further, the Blakely decision has not only raised questions about sentencing procedures, but also questions about indictment and trial practices. It is unclear from the motion whether the US Attorney also contemplates putting all criminal cases on hold. The arguments for staying sentences also would support staying all trials, too. Is this what the US Attorney really wants? Has this plan been blessed by Main Justice? Might it be blessed by defendants and defense counsel? So many questions, so few answers in this post-Blakely world.
Saturday, July 31, 2004
District Court round-up
With all the appellate court fireworks recently (and more to come next week with an expected Supreme Court cert. grant and an en banc hearing in the Fourth Circuit), it is now easy for district court decisions to get lost amidst all the activities. But there is still a steady stream of important district court rulings which are helping to define the look of, and frame debates in, the post-Blakely world. Though this quick summary only gives some highlights, it is a reminder of the rich and interesting work being done by district courts during this post-Blakely period of uncertainty.
US v. Hankins, 2004 WL 1690128 (D. Mont. July 29, 2004), is a strange decision because Montana Chief US District Judge Donald Molloy comprehensively discusses pre- and (some) post-Blakely caselaw, but he does not mention the Ninth Circuit's decision in Ameline (which I believe is controlling precedent he must follow). I am inclined to speculate that Judge Molloy completed this opinion as early as July 10, though it carries a date of July 29; perhaps decisions from Big Sky country get filed very slowly. The Hankins decision is also noteworthy, and a bit peculiar, because of how Judge Molloy splits the Blakely baby. He concludes:
If the facts that adjust a base offense level upward are admitted to by the defendant, the Sixth Amendment is not offended. If the facts that adjust a base offense level upward are not elements of a separate crime, can be fairly inferred from the facts admitted to by the defendant, and do not raise the upper guideline range above the maximum sentence allowed by the statute establishing the offense, in my view a judge may find the facts by a preponderance of the evidence without running afoul of the Sixth Amendment. On the other hand, if the facts adjusting a base offense level upward are traditionally elements of a separate crime, and are not admitted to by the defendant, nor stated by the government in its offer of proof and undisputed by the defendant, nor fairly inferred from those admitted-to facts, I understand Blakely to hold that the Sixth Amendment requires those facts to be found by a jury.
US v. Lauersen, 2004 U.S. Dist. LEXIS 14491 (SDNY July 29, 2004), is interesting because District Judge William Pauley confronts Blakely in the context of a bail motion. Here are the highlights:
Lauersen's contention that he is not a flight risk rests on the assumption that Blakely invalidates judicial factfinding for sentencing enhancements under the Guidelines. From that platform, Lauersen contends he has completed any term of imprisonment that can be imposed on him at resentencing because Blakely caps his Guidelines sentence at 21 months. Thus, he asserts that the risk of flight has dissolved. ...
If Blakely applies to the federal Guidelines, then it represents a tectonic shift in sentencing. However, the Supreme Court noted that "the Federal Guidelines are not before us, and we express no opinion on them" [and] the Second Circuit sitting en banc certified questions to the Supreme Court concerning the same issues implicated by Lauersen's application....
This Court declines to add to the cacophony given the Second Circuit's recognition that the law is uncertain. If Lauersen's prognostication about the reach of Blakely is correct, it does not ineluctably follow that his term of imprisonment will be shorter than the prison time he has already served or will have served by the time of resentencing. If his prediction about Blakely's reach is mistaken, then Lauersen faces the prospect of a prison term greater than the 87 month term he received in October 2001....
The Guidelines are constitutional until the Supreme Court says they are not. If the Supreme Court or the Second Circuit address the issue, Lauersen may petition this Court immediately for bail.
US v. Gibson, No, 1:04-cr-12 (D. Vt. July 30, 2004), is a decision relayed by a researcher who reports that District Judge J. Garvan Murtha issued the following ruling:
After careful consideration, the Court concludes that the constitutional precepts outlined in Blakely are equally applicable to the U.S.S.G. and joins the legion of courts that have concluded Blakely renders certain applications of the Guidelines unconstitutional.... In doing so, however, the Court rejects the notion that if Blakely is applicable to the Guidelines the entire system of the Guidelines must fall.... Instead, the Court finds the best approach is to continue to apply the Guidelines to the extent they can be applied in a manner consistent with the Sixth Amendment. Accordingly, absent a defendant's consent to sentencing under the Guidelines, the Court will not consider any enhancement based on facts not admitted by the defendant or found by a jury.
US v. Carter, 2004 U.S.Dist. LEXIS 14433 (C.D. Ill. July 23, 2004), has apparently been "in the books" for a week, but just recently appeared on-line. In Carter, District Judge Michael McCuskey concludes that the federal guidelines are unconstitutional in their entirety:
After reviewing the recent flurry of caselaw on the issues raised by Blakely, this court finds that the US Sentencing Guidelines are not severable. In reaching this conclusion, this court is persuaded by the reasoning of the court in United States v. Croxford, 2004 WL 1521560 (D. Utah July 7, 2004). This court believes that severing the Guidelines and applying only portions of the sentencing scheme would contravene the goals of Congress and would distort the intended effect of the Guidelines.
Tuesday, July 27, 2004
Now, officially, news from New Mexico
Below is a repost of a post from last week that was removed because a final order was not entered immediately after the decision in US v. Pedro Quijada was handed down. But now I have a copy of the government's "Motion to Correct Sentence," which in my mind makes this matter "official" to report. See paragraphs 9 and 10 for the key Blakely prompting the government's motion:
FROM JULY 19:
Steve McCue, Federal Public Defender in New Mexico provided the following interesting and important report abut a ruling US v. Pedro Quijada, NM 04cr0516. Here's the text:
US District Judge James O. Browning, District of New Mexico, today declined to apply the sixteen-level enhancement for an aggravated felony/crime of violence in the Reentry after Deportation guideline, USSG § 2L1.2(b)(1)(A)(ii). As I understand, it the court found that the enhancement required it to make a finding regarding the nature of the prior conviction (i.e. that it was a "crime of violence") in derogation of Blakely. The court semed to think that the required characterization of the prior was more than the "fact of the prior conviction" [which seems to be an exception to the Blakely rule due to the holding in Almendarez-Torres]. Of course this has major implications not only for southwest border courts but also for other USSG enhancements like Career Offender....
Several judges here have declined to apply USSG enhancements under Blakely. So far courts here in the USDC NM have avoided ruling the guidelines unconstitutional. Courts are however imposing alternative sentences.
IMPORTANT UPDATE JUST IN:
Judge Browning has granted the government's motion to correct sentence in Floyd Lopez' Pedro Quijada case. This was the reentry after deportation case in which Judge Browning had refused to apply the sixteen level enhancement of §2L1.2 USSG to a prior "crime of violence" because he had to make a finding that the prior was indeed a crime of violence. Judge Browning found today that, in light of the intervening Tenth Circuit opinion in US v. Cooper, ___ F.3d ___ at fn.3, 2004 WL 1598798 (10th Cir. 2004), the fact of prior conviction is one found by the court by a preponderance of the evidence and Blakely does not apply to this determination. The court went on to find that Quijada's prior was a crime of violence and awarded the sixteen level enhancement. Mr. Quijada got 46 months - the low end of the guideline range. Cooper is a three strikes case. Judge Browning equated the finding of "serious violent felony" under 18 USC §3559(c) with the finding of "crime of violence" under 2L1.2.
Monday, July 26, 2004
More news from the districts
I received a report today of a district judge in the same circuit as Judge Gertner who did not take her approach to severability (background here). According to the report I received, US District Judge George Z. Singal of the District of Maine (where our old friend Fanfan is from) decided in US v. Zompa, 04-46 that Blakely applies to the federal guidelines, but the federal guidelines are severable and thus the defendant is to be sentenced only based on facts admitted by the defendant. Apparently, the standard guideline calculations for the defendant in this drug case would have produced a sentencing range of 37-46 months, but that was reduced to a range of 0-6 months, and Judge Singal imposed a final sentence of 5 months. Judge Singal also declined the Government's request to give "hypothetical" or alternative sentences. A written opinion is expected.
UPDATE: Here is a copy of the opinion Judge Singal filed in Zompa:
Meanwhile, at the other end of the east coast, Judge Gregory Presnell of the Middle District of Florida continues to adhere to his view that Blakely renders the guidelines wholly inapplicable in all cases (background here). Below are two more short opinions from him:
Download us_v. Parson (03-cr-204).pdf
Download us_v. Khoury (04-cr-24).pdf
Notably, Judge Presnell asserts that US v. Parson "presents a prime example of why the U.S. Sentencing Guidelines cannot be applied in a piecemeal fashion when enhancements are present, as has been suggested by numerous courts across the country in light of Blakely." However, in a post later tonight, I hope to set out an argument which questions this assertion.
Read all about it... (especially severability)
I have just finished Judge Nancy Gertner's opinion in Meuffleman, and it is by far the most comprehensive judicial treatment of federal sentencing issues in the wake of Blakely that I have seen. (Indeed, one very knowledgeable observer has already called it in an e-mail to me "the best of the batch so far.") The decision is so very rich factually — e.g., consider Judge Gertner's report that she alone has 30(!) "in the pipeline" cases now on her docket (n.2) and her recounting of the factual dispute in the sentencing of defendant Michael Notkin (pp. 12-13). But the legal analysis take this opinion to another level, with even many footnotes doing important and groundbreaking work (see especially notes 1, 9, 20 and all of 35-38).
Though there are many points Judge Gertner makes that are worthy of discussion, I want here to highlight her severability analysis (pp. 25-38), and particularly her conclusion that "the Government advances a selective severability argument ... [that] makes no sense." Slip op. at p. 35. Agreeing with the position of Judge Presnell in US v. King (background here), Judge Gertner suggests (though does not quite expressly hold) that her non-severability conclusion means the guidelines must be inapplicable in all cases:
If all of the Guidelines — not just those about enhancements, but even those setting base offense levels — were drafted with judges in mind and further, if the system were intended to cohere as a single regime, how can there be a two-tiered system — one Guideline-based, one indeterminate?
There is big news out of Boston, even before the Democratic Convention officially gets started (and I am not talking about the BoSox taking 2 of 3 from the Yanks). Today, US District Judge Nancy Gertner of the District of Massachusetts — who rivals Judge Weinstein in her penchant for scholarly (and copious) sentencing opinions — has weighed in on what Blakely means for federal sentencing. In the attached opinion in US v. Mueffleman, she states:
I conclude (1) that it is entirely appropriate for a lower trial court to consider Blakely issues and add her voice to the dialogue about the decision’s implications; (2) that Blakely unquestionably applies to the Federal Sentencing Guidelines; and (3) that the Guidelines are rendered unconstitutional in their entirety by that application.
While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act or of the Guidelines. To literally engraft a system of jury trials involving fact-finding enhancements onto the Sentencing Guideline is to create a completely different regime than that comprehensive sentencing system envisioned by the legislation’s drafters or the drafters of the Guidelines. If such a system is required to give full effect to the Constitution’s jury trial guarantee then the entire sentencing system has to be recast. The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis.
More commentary on this case (available below) and other developments soon. In the meantime, I and other Shrek fans should try to avoid humming this variation of the children's ditty: "Do you know the Mueffleman, the Mueffleman, the Mueffleman....?"
Saturday, July 24, 2004
Sense and Severability
As I have spotlighted before (e.g., here and here and here), the so-called severability question is extremely important and extremely challenging after one draws the (simple?) conclusion that Blakely renders portions of the federal guidelines unconstitutional. With the exception of the Fifth Circuit and a few district courts, there is a near consensus that parts of the federal guidelines are unconstitutional. However, there is a multi-directional split on the tough severability questions which follow that conclusion.
Recall that the Seventh Circuit in Booker punted the severability question back to the district court, although essentially ruled that the guidelines were still operative and binding in cases without "Blakely" factors (background here). The Ninth Circuit in Ameline held that the guidelines were severable (background here), while the Eighth Circuit said in Mooney that they were not (background here). The Sixth Circuit's now-vacated opinion in Montgomery seemed to sever severability in its own distinctive way (background here), and the district courts have been both figuratively and literally all over the map.
Though not producing one answer, all these decisions in my view do share one attribute: the severability analysis in all these cases seems hurried and not sufficiently attentive to all the nuances in play. The Ameline court presented the most thorough severability discussion, but it still did not cover all the issues important in this analysis. Coincidentally, landing in my e-mail in-box today was a fantastic brief addressing severability issues submitted in court yesterday by the Federal Defender Services of Wisconsin. In a cover note, the brief is described as addressing "an interesting aspect of the severability question: where do we focus the severability analysis -- on the guidelines or on the SRA? And if the focus should properly be on the SRA, what happens next? Is supervised release gone? Does parole come back into play?"
The cover note alone piqued my interest, and reading the brief was a true eye-opener. Nearly every section raises an important and nuanced point about how complicated severability is in this setting, and the brief closes with this blockbuster paragraph:
If the SRA itself is non-severable, then sentencing really does change dramatically. Determinate sentences are gone; parole is back. Supervised release is no more. A variety of other innovations under the SRA disappear. Sentencing appeals nearly disappear after two decades, with the usual appellate jurisdiction rolled back. The government once more shares Rule 35(b) with the defense. It is 1983 again.
I think this brief is an absolute must-read for everyone thinking about these severability questions:
No waivering on waiver
With all the big news coming from federal circuit courts and even some state courts this week, it has been challenging to keep up with the still steady flow of federal district court decisions on Blakely. Throughout the weekend, I hope to spotlight some issues gurgling through important district court opinions (and I may also try to do a rough head count of district court rulings concerning constitutionality and severability).
For example, the decision of US District Judge Joseph Bataillon in US v. Terrell, 2004 US Dist. LEXIS 13781 (D. Neb. July 22, 2004), merits mention in part because of its thoughtful discussion of certain important waiver issues. In footnote 3, Judge Bataillon asserts that:
a defendant [may] waive the right to a jury trial and to consent to factfinding by the court, [but such] judicial factfinding must still satisfy the standard of "proof beyond a reasonable doubt." Simply put, the standard of proof is not the defendant's to waive; it is a burden placed on the government, without which a conviction cannot be obtained.
In addition, Judge Bataillon in the same opinion rejects the claim that a pre-Blakely plea agreement waives of the right now to raise Blakely issues:
the court rejects the government's contention that the plea agreement precludes the defendant from making [Blakely] objections. At a minimum, the defendant must understand the "critical" or "essential" elements of the offense to which he or she pleads guilty. The defendant could not have knowingly waived rights that neither he nor this court knew he had before the Blakely decision.
Though the fate of Terrell might be in question following the Eighth Circuit's ruling in Mooney, the Terrell decision merits praise for spotlighting and resolving some of the on-going waiver concerns.
Wednesday, July 21, 2004
I previous suggested that the decision by MD Fla. District Judge Gregory Presnell in US v. King (background here) -- which concludes in a bold, provocative and well-reasoned opinion that after Blakely "the determinate scheme set up by the Guidelines violates the Constitution and can no longer be used in any case" -- was the first major Blakely ruling from Florida. However, this article reports that a lot of Blakely activity has been transpiring in the Southern District of Florida.
The article first reports that on Monday US District Judge Donald L. Graham in Miami, ruling from the bench, "declared that part of the guidelines to be unconstitutional, meaning the ability to enhance a defendant's sentence for certain unproven conduct." The article thereafter sets forth this "partial scorecard of federal judicial actions in South Florida" (based in part on information from criminal defense attorneys):
US District Judges James Lawrence King in Miami, Jose A. Gonzalez Jr. in Fort Lauderdale and K. Michael Moore in Miami have stated that they will not enhance sentences absent a jury finding about any aggravating facts or proof beyond a reasonable doubt. In contrast, U.S. District Judges James I. Cohn and William P. Dimitrouleas, both in Fort Lauderdale, have held that Blakely does not apply to federal sentencing under the guidelines.... Meanwhile, Southern District Chief Judge Zloch and US District Judges Kenneth L. Ryskamp and Donald M. Middlebrooks in West Palm Beach have taken the creative approach of handing down alternative sentences -- depending on whether the guidelines survive or not.
Tuesday, July 20, 2004
Huge news from the Sunshine State
In what I believe is the first on-the-record Blakely ruling of note from Florida, we get a whopper in US v. King, No. 6:04-cr-35 from United States District Judge Gregory A. Presnell of the Middle District of Florida (Orlando division). In what, from a quick read, looks to be a very thorough and thoughtful opinion, Judge Presnell concludes:
Taking Blakely to its logical conclusion, the determinate scheme set up by the Guidelines violates the Constitution and can no longer be used in any case. The Court notes, however, that despite a return to an indeterminate sentencing scheme, it will continue to rely on the Guidelines as recommendations worthy of serious consideration. Slip op. at p. 12 (emphasis added).
In a breath-taking passage that seems to agree with a point I made here (and that Martha Stewart might have hoped would have been rendered a few days earlier), Judge Presnell explains:
The suggestion that courts use the Guidelines in some cases but not others is at best schizophrenic and at worst contrary to basic principles of justice, practicality, fairness, due process, and equal protection. Courts simply cannot apply a determinate sentencing code to one defendant whose sentence raises no judicial fact-finding enhancement issues and a separate discretionary scheme to another defendant whose sentence does raise enhancement issues. Such a structure not only seems to violate equal protection principles but would lead to the perverse result that both Government and criminal defense attorneys would plot to finagle their way into the determinate system or indeterminate system depending on the judge and the various factors relevant to the particular defendant’s sentence.
Wowsa!! Lots more commentary about this decision and other recent developments later tonight. In the meantime, here is the full opinion for everyone's reading pleasure:
Download us_v. King.pdf
Unconfirmed rumor: When an Orlando lawyer involved in the King case was asked, "The Guidelines have just been declared unconstitutional in all cases, now what are you going to do?", he said, "I'm going to Disneyworld!!"
More reports from NY front lines
Lot's of news to report in rapid fire posts. Federal public defender Jennifer Brown writes in to report about a ruling Southern Distict of NY Judge Shira A. Scheindlin handed down in a case she had before Judge Scheindlin on July 9, 2004. Here's the report:
In the case of US v. Krystine Burton, 04 CR 266, Judge Scheindlin ruled (without argument from the parties) "This is in fact my first post-Blakely sentence, and I have been givinga lot of thought as to how I wish to proceed in the post Blakely era. Until anappellate court speaks, each judge will be deciding for him or herself how she wishes to proceed, and I think I am going to fall in that group of judges who agrees with what Judge Cassel wrote in the Croxford case, namely, as far as I am concerned, the federal sentencing guidelines are unconstitutional in full. We can't have part of it unconstitutional and part of it constitutional. It is a single integrated scheme. If the enhancements are unconstitutional, so are the departures. The whole scheme falls apart and I have no intention of applying it." She then imposed a non-guideline sentence of time served and 3 years of supervised release which was the same sentence she said she would have imposed under the guidelines. She said she planned to issue alternative guideline sentences in all her cases.
Monday, July 19, 2004
Another SDNY finding of unconstitutionality
I just received a report from Sean Hecker, Staff Attorney of Legal Aid Society's Federal Defender Division concerning another Blakely ruling from the Southern District of New York. Here's the full text of the report:
Today, Judge Rakoff, a federal district judge in the Southern District of New York held that Blakely applied to the USSG and that the guidelines were not severable. Accordingly, he sentenced the defendant without being bound by the guidelines. In the felon-in-possession case before him, he ultimately settled upon a sentence that equated to the low-end of the range that would have applied if the base offense level had applied, without a two-point enhancement for possessing a gun with an obliterated serial number.
Shrewd readers will know that this is not Judge Rakoff's first noteworthy ruling that a federal sentencing statute was unconstitutional. Specifically, in US v. Quinones, Judge Rakoff concluded that the Federal Death Penalty Act violates the Due Process Clause of the Fifth Amendment because DNA testing has demonstrated that "innocent people are convicted of capital crimes with some frequency." See 196 F. Supp. 2d 416, 420 (S.D.N.Y. 2002); see also US v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y. 2002) (reaffirming ruling). The Second Circuit ultimately reversed that ruling in US v. Quinones, 313 F.3d 49 (2d Cir. 2002), affirmed, 317 F.3d 86 (2d Cir. 2003).
News from Indiana
Marcia J. Oddi over at the The Indiana Law Blog reports that there are two significant recent Blakely rulings coming from the Southern District of Indiana. Marcia explains here that news of these rulings comes from a local newspaper story which reported:
Twice in the last two weeks, US District Judge Sarah Evans Barker of Indianapolis has ruled the federal sentencing guidelines are unconstitutional and cited the Blakely ruling in her decisions.
Neither Marcia nor I can find any more information on these rulings, but we both hope to be able to provide updates soon.
Anyone doing Blakely "head counts"?
A number of folks have reasonably asked — and I am always wondering — about the total number of courts that have declared the federal sentencing guidelines unconstitutional in part or in whole. In addition to not having had the time to "do the math," one challenge in such a "head count" is to decide how to define and categorize different Blakely-related rulings. Some on-the-record statements of unconstitutionality might be deemed dicta, and I can tell from some newspaper reports that some rulings may not (yet?) be reflected in a written opinion. In addition, we have seen some judges making "tentative" rulings in response to the submission of special verdict forms or in a discussion of plea agreements.
The folks at UUSGuide are, to my knowledge, doing the most systematic job of organizing rulings of unconstitutionality by circuit on its Blakely page here. But I am not sure if anyone has — or is trying to systematically organize — all the information about what is going on out there. Needless to say, I would be grateful to anyone working on such a head count for sharing any cumulative data.
Sunday, July 18, 2004
Jury Sentencing: a range of possibilities
I finally had a chance to read closely EDNY District Judge Weinstein's two jury sentencing opinions (background and downloads here). Both are must reads for those who want to think deeply about what Blakely might represent and about how we might construct a new sentencing world with significant jury participation. Here I want briefly to note various ways juries might be seriously involved in sentencing decision-making:
Juries as comprehensive fact-finders: We might require juries to be the finders of all (or at least all significant) sentencing facts. Notably, Blakely only requires juries to be finders of aggravating facts, allowing judges still to find mitigating facts. But though the Constitution apparently permits this distinction, we might still think a sounder system would have juries decide all these facts.
Juries as fact-finders and sentence advisors: We might want juries not only to find facts, but also to advise judges about appropriate punishments. Notably, Justice Scalia's concurring opinion in Ring suggests that the Apprendi/Ring/Blakely line only requires jury fact finding and that judges can still be given authority to make ultimate sentencing decisions. But though the Constitution may not require juries to do anything more than find (aggravating) sentencing facts, we might still think a sounder system would have juries also recommend sentences based on these facts.
Juries as fact-finders and sentencers: We might want juries not only to find facts, but also to impose specific punishments. Again, though the Constitution may not require juries to do anything more than find (aggravating) sentencing facts, we might still think a sounder system would have juries impose specific sentences based on these facts.
Judge Weinstein's opinion in US v. Khan considers these issues through the lens of the interests of the Founders, and he asserts that the "authors known to the founders had a high respect for the wide powers of the jury over law, fact and punishment." However, Judge Weinstein also adroitly notes that consideration of these issues "must begin with the humble acknowledgment that the founders, if they could at all understand our current bloated federal criminal law and the labyrinthian structure of the Guidelines, would be appalled or bemused."
Finally, Judge Weinstein astutely notes that jury participation in sentencing "is the mode in capital cases" and that "six states ... currently allow jury sentencing in noncapital cases." He also cites the robust and growing academic literature exploring jury sentencing (to which should be added this terrific forthcoming article by Professors Nancy King and Rosevelt Noble examining how felony jury sentencing actually operates in Kentucky, Virginia, and Arkansas).
In short, Judge Weinstein, as always, gives us lots to think about.
Taking Blakely to the (en) banc
Yet another reason for the Supreme Court to move fast on a Blakely case is to try to reduce the stunning amount of lower court judicial time and energy being occupied with efforts to figure out what Blakely means for the federal system. As detailed in this article, renown sentencing lawyer Benson Weintraub is seeking to have the Southern District of Florida district judges (all 24 of them) rule en banc on the constitutionality of the federal sentencing guidelines in the wake of Blakely. Though en banc rulings by district courts are rare, in this setting Weintraub's motion, which seeks a uniform standard for post-Blakely sentencing in the district, seems to make a lot of sense. Otherwise, there is a reasonable risk that, as in Utah, different courts in the same district will apply considerably different sentencing standards.
Similarly, I have be speculating lately about whether the Sixth Circuit will or should seek to consider en banc the case of US v. Montgomery. As detailed here and here, the Montgomery ruling is bold, opaque and likely does not represent the views of a majority of active judges on the Sixth Circuit. But prudential considerations might suggest that active judges in the Sixth Circuit leave this decision alone. First, it is all but inevitable that the Supreme Court will speak to these issues (and soon, I hope); diverting the time and energy of all the active Sixth Circuit judges to consider and rule on this issue may not be wise given that any en banc ruling would be controlling law only until the Supreme Court speaks. Second, because just the order granting en banc review serves to vacate the original panel decision, sentencing rules within the circuit would be again uncertain in the period between the granting of en banc review and the rendering of a decision by the en banc court. Even if active Sixth Circuit judges do not think Montgomery is a sound decision, they might reasonably conclude that a consistent (unsound) ruling is better for the time being than circuit uncertainty and possible intra-circuit district court variation in sentencing approaches. However, this article from the Toledo Blade unsuprisingly notes that district judges in the Sixth Circuit are still uncertain about how best to proceed with sentencings.
FSG found unconstitutional on both coasts of Pennsylvania
I have now in hand copies of two interesting Blakely cases from two different district courts on opposite sides of Pennsylvania. In US v. Harris, US District Judge Arthur J. Schwab of the Western District of PA explains that federal sentencing guidelines "might not be a pure 'statute,' but they surely are statutory and legislative, and the Blakely decision renders them unconstitutional." He goes on to explain:
And because the relevant conduct and enhancement provisions of the federal guidelines are an integral part of a multi-faceted, interrelated mechanism, it is not possible to declare some parts unconstitutional but spare the remainder of the guidelines, leaving intact an incomplete and unintended skeleton. Thus this Court finds that the federal sentencing guidelines are an unseverable and unconstitutional whole. Essentially, then, we are left with the pre-guidelines sentencing scheme, pursuant to which defendants will be sentenced in this Court unless and until Congress, the United States Supreme Court or the United States Court of Appeals for the Third Circuit informs us otherwise.
And yet, as Judge Schwab further explains:
The Court intended to have the parties brief [whether a prior] plea agreement could be enforced or implemented in whole or in part, and what to do if it could not. However, following the announcement of this Blakely ruling in open court, the government and defense counsel, and more importantly, defendant, chose to waive any Blakely rights and proceed to sentencing under the plea agreement and the sentencing guidelines.... Thus, although this Court has declared the United States Sentencing Guidelines unconstitutional under Blakely, the sentence in this case ultimately was crafted under the guidelines, by agreement of the parties.
Meanwhile, in US v. Leach, US District Judge Stewart Dalzell of the Eastern District of PA explains that his conclusion (previous noted here) that
Under the teaching of Blakely and Booker, we therefore will make no enhancement to Leach's sentence that he has not, by his admission, already agreed to. Because there is, as the United States Department of Justice and Judge Posner recognize, the possibility that the Guidelines do not admit to an easy severability under Blakely, we shall also announce a nonguidelines alternative sentence.
After some interesting permitted and disallowed guideline calculations, Judge Dalzell arrives at sentencing range of 188-235 months and imposes the same 188 month term both as a guidelines and nonguidelines sentence.
Saturday, July 17, 2004
Blakely developments in Arizona
A few recent news articles suggest that Arizona will be an interesting state to watch for Blakely developments. First, this article highlights that in Arizona, defense attorneys "find themselves in rare agreement with prosecutors on one issue: there's no need for the Legislature to rush to change state law in response to a U.S. Supreme Court ruling that may affect the way Arizona sentences criminals." I highly recommend reading this entire article, which is rich with information about coping efforts and plans for Arizona state sentencing. Among the interesting tidbits:
Maricopa County Public Defender James Haas said the criminal justice system's response to the ruling so far varies, with some counties using plea agreements that have defendants waive the need for jury findings, some reluctance by judges to impose sentences beyond the presumptive terms and one judge reportedly declaring that the ruling doesn't apply to Arizona.
Also, there is apparently a healthy collaborative spirit as the system is thinking about long-term fixes:
[D]efense attorneys are reaching out to prosecutors, scheduling informal meetings in coming weeks. "We may not agree on what we're going to do but at least we ought to talk together."... However, it's likely that numerous sentencing issues stemming from the ruling will still have to be fought out in court - no matter what the Legislature does in response, Haas said. "Every time you talk to people you come up with new issues."
And to provide a ground level view of post-Blakely life in Arizona, here is an article describing Blakely's impact on a manslaughter prosecution of Lee Parulski. Here's an interesting snipit:
During Thursday's hearing, Jim Coil, the prosecutor, said that he offered three options to Mike Rollins, Parulski's attorney, after the Blakely ruling. Coil said Parulski could waive his Blakely rights; a new plea agreement in which Parulski would plead guilty to second-degree murder could be signed; or a jury could be called. Rollins said he rejected the waiver or a new plea agreement. He said calling a jury would be acceptable. However, there is no procedural mechanism under Arizona law to call a jury in a case involving a plea agrement.
July 17, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
The week that was
Though I have an affinity for hypebole, I do not think it is an overstatement to call the work week just ended the wildest and wackiest week ever in the federal criminal justice system. We had at least a dozen major court rulings, not to mention a Senate hearing and then Martha. Whew. Though later I may have some posts with deeper reflections, for now I want to just recommend weekend reading:
First, I highly recommend Judge Colleen McMahon's thoughtful decision in US v. Einstman, No. 04 Cr. 97 (SDNY July 14, 2004). Judge McMahon, expressly "adopting the reasoning" set forth by Judge Paul Cassell in US v. Croxford, does not break any radical new ground in her decision to find the guidelines unconstitutional and also not severable. But she beautifully enhances the discussion of the major issues, while also becoming yet another judge to state on the record that she wishes "that the Supreme Court will address this issue immediately ... and in an expedited manner."
Second, as the comments here highlight, Judge Weinstein's decision in US v. Khan, No. 02-CR-1242 (EDNY July 12, 2004) sets forth the "history of juries and judges cooperating in sentencing in the United States," and does so in a way that might stimulate rethinking of the very rights that have engendered this Blakely revolution.
Finally, providing perhaps the tightest review of the week that was, in US. v. Thomson, 2:03-00187-02 (SDWV July 15, 2004), the esteemed Judge Joe Goodwin (of Shamblin fame) ultimately concluded that he had to stop the madness, at least in his courtroom. Reviewing all the major and divergent rulings of the past two weeks, Judge Joe Goodwin concludes as follows:
The court FINDS that consistent application of the law is of paramount importance in sentencing matters. Therefore, in the interests of justice, the court will move all sentencing hearings to a date after October 15, 2004.
Friday, July 16, 2004
Martha is getting Blakelyized, while Olis isn't
Interestingly, Martha Stewart, according to this story, is going to be free pending appeal because of Blakely. Judge Cedarbaum apparently told Stewart:
In view of the turmoil resulting from the Supreme Court's decision in Blakely v. Washington, I grant your application for a stay of sentence pending appeal.
Meanwhile, according to this story, US District Judge Sim Lake denied a request by former Dynegy Inc. finance executive Jamie Olis -- who I believe has just recently started serving his severe 24-year term for a fraud calculated to have resulted in a huge financial loss -- to be freed from prison pending an appeal of his November conviction.
Though I am not intimately familiar with either case, my first reaction is that Olis generally has a much, much stronger Blakely claim on the facts. But, of course, as of this writing the guidelines are still in force in the Fifth Circuit while everything is still up from grabs in the Second Circuit while we wait for the Justice to speak about the certified questions. Plus, though I am really not an expert on these issues, I think different considerations come into play when the question is freeing someone already incarcerated, as opposed to allowing someone to remain free. Thoughts?
July 16, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack
Judge Weinstein Speaks!!
I'm back at it even faster that expected because I just received two opinions authored by EDNY Senior US District Judge Jack Weinstein. I have not had a chance to even glance at these opinions, but because of the source I am sure they are fantastic and fantastically interesting, worthy of posting sight-unseen. More commentary on this front, too, before long.
UPDATE: Even if you are not a fan of Star Trek, you cannot help but love the Wrath of US v. Khan. Though I've only now had a chance for a very quick read, the decision is classic Weinstein, ingeniously wacky and wonderful, and it also honors this blog with a cite. (Of course, Weinstein has long been the hero of writers interested in cite counts, and he does not disappoint here.) More substantive commentary later.
Thursday, July 15, 2004
Martha, my dear...
According to this CNN report, it only took the obviously efficient US District Judge Miriam Cedarbaum a one-sentence, handwritten note to reject attempts by Martha Stewart's legal team to declare the federal sentencing guidelines unconstitutional. Here's the note, as reported by CNN:
The sentencing guidelines applicable to this case do not require any enhancement by the judge, accordingly, Blakely is not in point.
I am not sufficiently familiar with the details of Martha's prosecution to know if this is a sound legal ruling. But, as suggested here, were Martha being sentenced in the Sixth Circuit, the fact that her case apparently involves no "Blakely factors" might not matter. In any event, I would especially encourage any white-collar practioners to use the comments to discuss whether this is really as simple as Judge Cedarbaum makes it sound.
Spanning the globe, Blakely style
From coast to coast, local newspapers are discovering that the Blakely decision may impact local cases. Here's just a sample of the coverage: this Cincinnati Inquirer story covers the impact of Blakely in Ohio in the wake of the Sixth Circuit's recent Montgomery decision, while this story in The Flint Journal discusses a motion made in one local case to declare the federal guidelines unconstitutional -- a motion which should be eaiser(?) for Senior US District Judge Paul V. Gadola to resolve after the Montgomery ruling (background here).
Moving south, here's a story from the Eastern Arizona Courier in which state Superior Court Judge Douglas Holt thoughtfully discusses the possible impact of Blakely and reactions thereto in Arizona. Finally, this interesting article from Myrtle Beach Online discusses Blakely's potential impact on three doctors sentenced to long federal prison terms for overprescribing narcotics. And since Myrtle Beach is the self-proclaimed "Golf Capital of the World" -- not to mention where I will be taking a family vacation in August -- I can't resist using this forum to predict that Ernie Els is the player to beat in The British Open Championship, which started today.
District Court dynamics
I have heard from many about interesting efforts by prosecutors to deal with Blakely, and about interesting responses from defense attorneys and district courts to these efforts. Though Judge Cassell's written testimony to the Senate Judiciary Committee (available here) provides the most extended account of different Blakely coping efforts, I will try to provide examples of interesting rulings that come my way. So, here I provide a copy of a recent ruling in US v. Roberts by SDNY US District Judge Lewis Kaplan --- who, by the way, I was lucky enough to have in his pre-judge days as my "partner buddy" while a summer associate at Paul, Weiss in NYC. In the attached ruling, Judge Kaplan denies the government's application to submit special interrogatories or special verdict to the jury, and here's a flavor of his reasoning:
I do assume I have discretion to bifurcate and take a second and special verdict with respect to sentencing. The question is whether I ought to do it in the exercise of discretion. The argument for doing it, it seems to me, is essentially that it is like chicken soup. It may not cure the cold but it isn't going to make it any worse [especially in a case where such an approach might be easily employed].... But at the end of the day, it seems to me that to have a system in which special verdicts would be taken on sentencing factors in simple cases but not in complicated cases is just exceptionally unfair, exceptionally undesirable and certainly not something that any policymaker to date has indicated a willingness to adopt.
In consequence, I just feel that it would not be an appropriate exercise of my discretion to start down that road by taking a special verdict in this case simply because it is a simple one and it isn't hard to do, and thus, in some way lend some credence to the notion.
The whole transcript is a valuable read, and can be downloaded here:
Wednesday, July 14, 2004
Thoughts and holdings on Blakely retroactivity
Figuring out what Blakely means for on-going cases is, of course, critically important for courts and practitioners right now. But also extremely consequential is whether Blakely might have retroactive application. Though the Supreme Court limited the retroactive application of its Ring holding in Schriro on the same day it decided Blakely (background here), in that case there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely. Also recall that Justice O'Connor stated in her Blakely dissent that "all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack." Blakely, slip. op. at 11 (O'Connor, J., dissenting).
Despite viable arguments about Blakely's retroactivity, most commentators take the (slightly cynical) view that courts will seek to limit retroactivity simply because the consequences of giving Blakely retroactive effect could be so extreme. (Recall Justice O'Connor's footnote suggesting that well over 200,000 cases in the federal system alone could be impacted if Blakely was just made retroactive back to when Apprendi was decided in 2000.) I generally agree with this legal realist perspective that courts, worried about a flood of habeas petitions, will try to limit the reach of Blakely (although, of course, the same logic also supported the widely held belief that the Supreme Court would never extended Apprendi to guideline enhancements in the Blakely decision itself).
Of course, last week we already had evidence of court efforts to limit the retroactive reach of Blakely when the Eleventh Circuit, In re Dean, held that Blakely cannot form the basis for authorizing a second or successive habeas filing (background here). And I have now come across another example of a court speaking to Blakely's possible retoractivity. In State v. Burch, 2004 WL 1557822 (Minn. App. July 13, 2004), an unpublished intermediate appellate court state case, we get this noteworthy discussion of the retoractivity issue:
Although Blakely, which is based on Apprendi v. New Jersey, 530 U.S. 466 (2000), may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision, appellant has failed to make a showing that Blakely will affect sentences, such as his sentence, that were final before Apprendi was decided. This court has held that Apprendi does not apply retroactively on collateral review, including postconviction. State v. Meemken, 662 N.W.2d 146, 150 (Minn.App.2003). See Schriro v. Summerlin, 72 U.S.L.W. 4561, 4563 (U.S. June 24, 2004) (stating that the holding of Ring v. Arizona, 536 U.S. 584 (2000), a case which reinforces the Apprendi requirement that a jury find any aggravating facts that lead to a greater sentence, is properly classified as procedural, and therefore does not apply retroactively to cases already final on direct review). Therefore, absent any authority that Blakely applies to appellant's sentence, we decline to address this issue.
Importantly, though this decision refuses to consider the applicability of Blakely to pre-Apprendi cases, it also states that Blakely "may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision."
July 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (20) | TrackBack
End of day news and commentary
The Blakely news and corresponding media coverage is growing as everyone figures out how big this story is. The Wall Street Journal (which unfortunately does not provide content on-line without a subscription) may have on Wednesday another in its series of thoughtful articles about the Blakely fall out. In addition, here's a brief (and surely incomplete) run-down of other noteworthy Blakely news.
Federal Developments: this AP story reports that U.S. District Judge Stewart Dalzell (ED Pa.) sentenced Frederick Leach to a 15-year term in a drug case instead of the guideline recommended 30-year term citing Blakely; Martha Stewart's sentencing is scheduled for Friday though U.S. District Judge Miriam Goldman Cedarbaum has not yet ruled on Stewart's lawyers' request to declare the federal sentencing guidelines unconstitutional -- this thoughtful article details the strategic challenges Stewart faces in deciding whether to speak at the sentencing.
MORE: This article dicusses Blakely issues in a Virginia District Court; this article reports that U.S. District Judge Michael J. Reagan of SD Ill. has continued all his sentencings to September or October; this article reports that U.S. District Judge John Manos has concluded that "the Blakely case does not affect federal law"; and this article quotes Deb Phillips of the U.S. attorney's office in Nashville saying, ''Right now, [Blakely will] just be a blip.''
State Developments: according to this article, Tennessee Criminal Court Judge Rebecca Stern sentenced a man convicted of raping an 82-year-old woman to a minimum 25-year sentence on Monday and said her sentence was limited by the Blakely ruling; and according to this article, Washington State Superior Court Judge Richard Strophy reduced by 19 months the sentence of a convicted murderer Monday relying on Blakely.
Other Commentary: Jason Hernandez over at the Blakely Blog provides this thoughtful run-down of issues raised during today's Senate hearing; Professor Kyron Huigens over at Punishment Theory continues his analysis of the problems he has with Justice Breyer's metaethics.
My own two cents: I found the Senate hearing very heartening with its consistently thoughtful and balanced discussion of many tough issues and its hints that at least a few Senators might want to re-think some major elements of the existing federal sentencing scheme. In the debate over the current "chaos" and the need for a quick fix, I continue to think it is very signficant that the USSC asserts "that a majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely." USSC Written Testimony at p.2 (emphasis added). Finally, since DOJ representative Willaim Mercer's suggested that the time for legislative action might be in August, I am fearful that DOJ, if it feels that judges are low-balling sentences post-Blakely, will return to the Hill later this summer to seek a pro-prosecution "fix."
July 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Legislatures, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (71) | TrackBack
Tuesday, July 13, 2004
Now on deck...
Today's the day for the Senate Committee on the Judiciary's hearing on “Blakely v. Washington and the Future of the Federal Sentencing Guidelines.” Lots of background details about the 10am hearing (and how to hear it live) are here and here and here and here. The Committee's offical site does not yet have links to testimony, though you can access written testimony I submitted with my co-authors here and I will post other testimony I have received later today.
And while we're talking baseball, here's an article noting Utah's Chief District Judge Dee Benson's view that unless the federal guidelines are overturned by the high court, he will consider them valid. As the article details, apparently Judge Benson has cast the guidelines in the role of the Florida Marlins, with Judges Cassell and Posner and others finding the guidelines unconstitutional becoming the Chicago Cubs. The sure thing, according to Judge Benson, sometimes disappears:
Just last October, thousands of Chicago Cubs fans were certain of their team's first World Series appearance in  years, with a mere five outs to make against the Florida Marlins. ... Then one of the Cubs' own fans interfered with the catch of a foul ball, and the unraveling began. As Mark Twain observed in 1897 that 'the reports of my death are greatly exaggerated,' the sentencing guidelines may similarly defy present expectations of their impending demise.