Thursday, December 30, 2004
A belated information present from the USSC
In my testimony last month to the US Sentencing Commission, I urged the USSC to examine post-Blakely developments, especially in the Seventh and Ninth Circuits where Blakely has been deemed applicable to the federal guidelines, to help assess whether a "quick legislative fix" would be truly essential after a possible ruling in Booker and Fanfan applying Blakely to the federal system. Thus, I am very pleased to see that the USSC now has posted on its Booker/Fanfan page a document entitled "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here).
Here is how the USSC describes this fascinating new document on its Booker/Fanfan page:
While awaiting the submission and analysis of empirical data on the effect of the Blakely decision, the Commission staff conducted a survey of 40 sample subjects (judges, defense counsel, and probation officers) in the Seventh and Ninth Circuits to attempt to determine, through anecdotal means, how those jurisdictions are handling their criminal caseloads.
Though this document is, as stressed by the USSC, "preliminary" and "anecdotal" and only includes cases through October, it is still an extremely important and interesting (partial) report on the post-Blakely state of federal sentencing. Along with this week's WSJ article on federal court doings, this document is a must read for everyone interested in assessing both the present and possible future of federal sentencing.
In subsequent posts over the next few days, I will highlight some of the most essential elements of this memo and also reflect on what it suggests for those planning for a post-Booker world. For now, let me just lavish the USSC with praise for making this document publically available. Perhaps this good deed will bring good karma for USSC Chair Judge Hinojosa's beloved Texas Longhorns (who will need to do a lot better against a Big Ten team in the Rose Bowl than another Big 12 team did against my Buckeyes in the Alamo Bowl last night).
December 30, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (1) | TrackBack
Thursday, October 07, 2004
The data plot thickens
As many readers know, I have long been obsessing over just how many federal cases have Blakely factors and how different rulings in Booker and Fanfan could impact the operation of the federal sentencing system. (See generally posts here and here and here and here.) And, as detailed here, I was fascinated by a representation in the Acting Solicitor General's reply brief concerning the number of cases that involve Blakely factors, which was apparently based upon a U.S. Sentencing Commission internal memo that I thought was not publically available.
This data story has taken an interesting turn based on a letter I received this morning (which can be downloaded below) that was apparently filed by the Acting SG with the Supreme Court yesterday. The letter "proposes to lodge material with the Clerk that is relevant to" Booker and Fanfan — namely "a copy of a three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath on the subject 'Estimate of Number of Cases Possibly Impacted by the Blakely Decision,' which the Commission’s General Counsel made available to the Office of the Solicitor General." As the Acting SG's letter explains:
The memorandum’s author, Dr. Lou Reedt, is Director (Acting), Office of Policy Analysis, United States Sentencing Commission. The memorandum's recipient, Tim McGrath, is Staff Director of the United States Sentencing Commission.
The Commission informs us that the memorandum is an internally generated staff document prepared in an effort to project what the impact of Blakely might be, and that it has been made available to anyone who has requested it.
Fascinatingly, this "lodging letter" to the Supreme Court then goes on to make substantive points — as if this letter was a supplemental brief — about the way the Supreme Court ought to interpret the data in the Sentencing Commission's memo:
The government does not agree with all of the assumptions and speculations made in the memorandum, particularly with respect to the extent to which plea agreements may reduce the impact of applying Blakely to the Guidelines through stipulations or waivers. The extent to which such plea agreements could or would reduce the impact of applying Blakely to the Guidelines is unknown. Even under the most conservative assumptions in the memorandum (i.e., that applying Blakely to the Guidelines does not increase the trial rate and that all guilty plea cases validly resolve Blakely issues), however, the data still suggest that 65% of the federal criminal cases that go to trial will pose Blakely issues. Despite the limitations of the document, the underlying data may prove helpful to the Court in assessing the impact of applying Blakely to the Guidelines.
I am very pleased to learn that the SG now wants the Supreme Court to see the US Sentencing Commission's memo, and I am also very pleased to learn that I can receive a copy of the memo upon request. And, if anyone official at the USSC is reading, please consider this post a formal request for the three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath (though I might have thought this prior post entitled "Please, please share your data USSC" should have reasonably been understood as a sufficient request).
Yet, as is always the case, questions abound:
Why didn't the US Sentencing Commission, supposedly an independent judicial branch agency, submit this memo directly to the Supreme Court with its own amicus brief (or, better still, a month earlier when the Supreme Court was considering a set of Blakely-related cert. petitions)?
Why won't the USSC, which is now representing that this memo is a public document, post this memo on its website?
Has the USSC made this information available to all — or any — lower federal court judges who have been considering Blakely cases?
Will the defense team in Booker and Fanfan have an opportunity to file a "reply letter" in order to provide its view of what should be drawn from the USSC's memo?
UPDATE: Right before I have to leave for the airport, I got a copy of the aforementioned USSC memo from a friend of the blog. Here it is:
October 7, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, Severability of FSG | Permalink | Comments (6) | TrackBack
Wednesday, October 06, 2004
More on having more in indictments
As noted before here, the legitimacy of Blakely-ized indictments depends in large part on whether (and how) Blakely impacts federal guideline sentencing. In a thorough recent decision covering these realities, Magistrate Judge Stephen L. Crocker in US v. Dennis, 2004 U.S. Dist. LEXIS 19919 (W.D. Wisc. Oct. 1, 2004), recommended denying a motion to strike sentencing allegations from a Blakely-ized indictment. Here is some of the key language from the Magistrate's report and recommendation:
The bottom line is that the current law of this circuit requires the government to include sentencing allegations in its indictments even though it doesn't want to, and none of the defendant's counter-arguments are sufficiently persuasive to justify striking the allegations....
Defendants argue that this court should strike the two sentencing allegations for three reasons: 1) The allegations are prejudicial surplusage; 2) The government does not have statutory authority to include sentencing allegations in an indictment; and 3) Presenting sentencing allegations to a jury for proof beyond a reasonable doubt to increase defendants' sentences violates the constitutional principles of separation of powers and the prohibition against the legislative branch delegating its powers to the executive branch. The government demurs, noting that it has no choice but to include sentencing allegations in the indictment under the current law of this circuit. The government is correct.
West coast offense
My Dad taught me the old saying that "the best defense is a good offense." Though many would debate whether this holds true in football for adherents of the West Coast Offense coaching philosophy, the very important (and very entertaining) decision by Oregon US District Judge Panner in US v. Detwiler (available here) suggests that at least one judge is ready to try out the philosophy in the arena of federal sentencing.
In Detwiler, Judge Panner provides a thorough and thoughtful account of how the Feeney Amendment has changed certain premises that were key for the Supreme Court in upholding the structure of the Sentencing Reform Act in Mistretta v. US, 488 U.S. 361 (1989). Following an introductory section with frequent quotes from Mistretta and the Federalist Papers, Judge Panner first documents the history and passage of the Feeney Amendment in stark and provocative terms:
Nominally sponsored by a freshman Congressman, the Feeney Amendment actually was authored by Attorney General Ashcroft's subordinates at the Department of Justice.... This legislation, of vital importance to the Judicial Branch, was "enacted without any consideration of the views of the Judiciary." Chief Justice William Rehnquist, 2003 Year-End Report on the Federal Judiciary. The public likewise had no opportunity to be heard.
This stealth route clearly was intended to prevent close scrutiny of the Feeney Amendment, or a fair opportunity to oppose the measure. No emergency mandated acting in such a precipitous manner, without consulting a coordinate Branch of government or allowing opportunity for public input or Congressional debate. The legislative record also is replete with remarks by some members of Congress, and the Attorney General's deputies, expressing hostility toward the Judicial Branch and toward judges who fail to decide cases in the manner favored by those individuals....
Judge Panner thereafter documents the impact and consequences of the Feeney Amendment's changes to the structure of the US Sentencing Commission and the operation of federal sentencing law:
The alterations to the Sentencing Commission effected by the Feeney Amendment require re-examination of a fundamental premise of Mistretta, namely, that the Sentencing Commission is part of the Judicial Branch.
I see no principled basis on which to distinguish the Sentencing Commission, post-Feeney, from the myriad of other administrative agencies that populate the Executive Branch.... For separation of powers purposes, if it walks like a duck, and quacks like a duck, then it's a duck, even if Congress chooses to label it a cow. The Plan of the Constitution cannot be circumvented through mere labels.
The practical consequence of the Feeney Amendment is that, regardless of what it may say on the office door, the Sentencing Commission is now a captive of the Executive Branch. Any involvement by the Judicial Branch in the Commission's work is solely by the grace of the Executive Branch.
Consequently, explains Judge Panner, because the "Executive Branch has usurped control over the tasks that Mistretta viewed as historically within the realm of the Judicial Branch," the "only appropriate remedy here is to declare the federal Sentencing Guidelines system, in its present form, unconstitutional."
Detwiler is a powerful and important ruling (not to mention a great read), and it opens up another critical front in the pitched battle between the US Congress and the Federal Judiciary over sentencing law and policy. Moreover, as Howard Bashman astutely notes here, because the Ninth Circuit will surely be called upon to review this decision, "this matter is likely to remain interesting for quite some time to come."
Tuesday, October 05, 2004
Big doings from the District of Oregon
I had been thinking that there had not been any big rulings from the federal district courts lately, and then today United States v. Detwiler, CR 03-372-PA (D. Or. Oct. 5, 2004), arrives in my in-box. In Detwiler, Senior US District Judge Owen M. Panner declares the federal sentencing guidelines unconstitutional.
Ho hum, you might say in our post-Blakely world. But Judge Panner's holding is based on Congress's passage of the Feeney Amendment; he concludes that the "practical consequences of the Feeney Amendment is that, regardless of what it may say on the office door, the Sentencing Commission is now a captive of the Executive Branch" and consequently the federal sentencing system is unconstitutional based upon separation of powers principles. Here's the opening of an opinion you can download below:
Pending before the court is Defendant's motion to declare the Feeney Amendment unconstitutional and to impose sentence under the pre-Feeney version of the federal Sentencing Guidelines. That motion is granted in part. I hold that:
1. The federal Sentencing Guidelines system, in its present form, is unconstitutional because it violates the separation of powers doctrine.
2. The defects are not severable.
3. The federal Sentencing Guidelines will be treated as true guidelines, and not mandates, when imposing sentence in this and all future cases, pending further directions from a higher court or the Congress.
More commentary later on what seems to be now another front in the on-going war between the US Congress and the Federal Judiciary over sentencing law and policy.
Justice Kennedy's interesting interest
In the course of my Legal Affairs debate last week (available here), I lamented that the Blakely line of cases has a troublesome "binary" quality because some matters of relevance at sentencing are getting labeled "elements" (or the functional equivalent), in which case the full panoply of constitutional procedural rights are deemed fully applicable. But other matters, so-called "sentencing factors," garner the application of very few procedural rights. As I explained in the Debate Club:
Instead of relying on the Sixth Amendment to regulate sentencing procedures in this binary way, I might have preferred the Supreme Court to have developed more nuanced sentencing regulations through the Due Process Clause in order to give legislatures (and sentencing commissions) more flexibility to develop other procedures that would protect defendants' rights at sentencing.
Because of this view, I was quite intrigued when at oral argument Justice Kennedy seemed interested in exploring with Acting Solicitor General Paul Clement whether different sorts of facts might justify different sorts of treatment under the Blakely rule. Though the oral argument transcript (whenever it is available here) will reveal that this line of questioning did not go anywhere, I am somewhat hopeful that Justice Kennedy may try to develop a more nuanced approach to the (still developing) Blakely doctrine as the Justices start writing all this up.
Specifically, I would think it could be very beneficial for the Supreme Court to start working through a distinction between "offense facts" and "offender facts." It make a lot of sense to me — and even loosely fits with the existing Apprendi/Blakely jurisprudence — to require the government to prove to a jury beyond a reasonable doubt any and every fact relating to the offense, but to allow facts relating to the offender to be treated "administratively" under more lax procedures (see generally my post here distinguishing adversarial and administrative justice).
Helpfully, some courts and commentators have already started working through distinctions of this sort. Most notably, as explained in State v. Kaua, 72 P.3d 473 (Hawai'i 2003), the courts of Hawai'i have developed a jurisprudence in which so-called "intrinsic factors" are "required to be pled in the indictment and found by the jury" because they "are contemporaneous with, and enmeshed in, the statutory elements of the proscribed offense." Whereas, in contrast, so-called "extrinsic factors," which are factors "separable from the offense itself in that they involve consideration of collateral events or information" can be "found by the sentencing court after the defendant's adjudication of guilt at trial by the trier of fact." Similarly, in articles such as Kyron Huigens, Solving the Apprendi Puzzle, 90 Geo. L.J. 387 (2002), and David Yellen, Illusion, Illogic, and Injustice: Real Offense Sentencing and the Federal Sentencing Guidelines, 78 Minn. L. Rev. 403 (1993), and others, commentators have done important work exploring the nature and consequences of different sorts of facts for proof and procedure purposes.
Of course, as Hawai'ian jurisprudence reveals, a distinction between intrinsic and extrinsic facts is not self-defining. Or, slightly recast, there can be reasonable disputes over what qualifies as an offense fact and as an offender fact (e.g., role-in-the-offense might be arguably in either or both categories). Nevertheless, redefining Blakely's rule in terms of requiring jury trial and proof beyond a reasonable doubt not of all sentence-enhancing facts, but just of all sentence-enhancing "offense facts" I think advances the ball usefully. At the very least, I think an offense/offender distinction could be a more fruitful jurisprudential foray than the tail-wagging-dog jurisprudence that Justice Scalia regrets having lost in footnote 13 of his Blakely decision.
October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Severability of FSG | Permalink | Comments (4) | TrackBack
Reflections on the arguments on severability
Ultimately, the real action in Monday's argument concerned severability because the five Justices in the Blakely majority essentially decided Blakely's applicability to the federal system when they decided Blakely. Everyone understood back in June the impact of the ruling in Blakely for the federal system, and Fanfan's lawyer Rosemary Scapicchio astutely started her argument by reminding the Court that the government argued back in Blakely that if the Washington guidelines fell then so would the federal guidelines. (Indeed, Scapicchio came very close to accusing the SG of flip-flopping.)
On the issue of severability, Tom Goldstein's post here and a report from Mark Stancil here provide some helpful (though distinctive) head-counting of the Justices' apparent views on severability. What fundamentally makes this issue so hard is that the two primary options facing the Court both seem problematic: the SG's argument for advisory guidelines, as Justice O'Connor observed, seems to fly directly in the face of Congress's obvious interest in creating binding sentencing guidelines; the defense bar's argument for jury fact-finding is a potential administrative nightmare because of how many complex factual issues the guidelines sometimes make relevant to sentencing.
However, as I have detailed in a number of posts (see here and here), I do not think the mess created by jury fact-finding would be so great, and I think the mess created by treating the guidelines as advisory in some cases would be considerable. Justices Stevens and Scalia both seemed to appreciate this first reality: at oral argument, Justice Stevens embraced the idea beautifully developed in the NAFD's amicus brief that plea deals will take care of most cases and trials can be adjusted in the remaining cases, and Justice Scalia suggested that the consequences of applying Blakely to the guidelines would have just a "one-shot impact" for on-going cases.
Moreover, because everyone seems to want the guidelines to apply in cases without Blakely factors, as Tom Goldstein explains here, I do not see how the Court could ultimately adopt the SG's "dual system" proposal. Two judges who have really grappled with the SG's dual system proposal (Judge Gertner in Meuffleman and Judge Presnell in King) have forcefully explained the illogic and inconsistency with congressional goals of uniformity which results from having the guidelines fully applicable in cases without Blakely factors, but wholly advisory in cases with Blakely factors.
Mreover, even putting aside concerns of logic and congressional intent, I just do not understand how the SG's proposed dual system goes about deciding which cases are in which system. Let's consider, as just one example, the Enron defendants. I believe these defendants had their indictments "Blakelyized;" because the government is alleging some Blakely factors, it would seem the Enron defendants if/when convicted would be subject to advisory guidelines sentencing. But what if the defendants contest the alleged Blakely factors? Does the judge have to make an initial determination of whether a Blakely factor exists to answer the threshold question of whether the guidelines will be binding or advisory? Critically, in order for plea negotiations to be able to develop effectively, the parties are going to want to know which sentencing system is going to apply as soon as possible. But it is hard to understand exactly when and how that determination is to be made; indeed, it seems possible that the "which system" determination could change at the last minute if/when a probation officer discovers some unrealized Blakely factor during a pre-sentence investigation.
The defense lawyers have complained the SG's proposed dual system permits prosecutorial manipulation because a prosecutor could allege or not allege a Blakely factor depending upon which system the prosecutor wants applicable. But, critically, the dual system would also be subject to defense manipulation. If a defendant thinks he might do better with advisory guidelines, he might try to concoct a minor Blakely factor — e.g., offer a $10 bribe to the probation office to implicate the obstruction of justice enhancement — with the goal of freeing the judge from the guidelines. And, in addition to the struggles the parties will have at the charging and plea stages if they cannot know what system of sentencing will apply, probation officers may be placed in a very difficult position if their pre-sentence reports are going to have a dispositive impact on whether the guidelines are fully applicable or wholly advisory.
In sum, though the idea of making the guidelines advisory on the surface appears more tenable than requiring jury fact-finding, the nuts-and-bolts challenges of administering a dual sentencing system seem enormous. Perhaps defense attorneys and line prosecutors will report in the comments that they can envision how such a dual system would work, but I suspect it is an idea that (like alternative sentencing) makes a lot more sense in theory than in practice.
October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Severability of FSG | Permalink | Comments (1) | TrackBack
Saturday, October 02, 2004
The SG's chaos strategy
I have suggested here and here that the government's proposed remedy, if Blakely applies to the federal guidelines, seems likely to cause far more chaos than a ruling that the federal guidelines are fully severable. A recent district court decision, US v. McBride, 2004 U.S. Dist. LEXIS 19558 (D. Kan. Sept. 28, 2004), confirms some of my views on this important issue.
In McBride, US District Judge Julie A. Robinson, in addition to writing a thoughtful opinion which details the state of Blakely in the federal courts, carefully and effectively explains how the defendant's sentence would be unchanged even if Blakely applies to the federal system.
First, Judge Robinson explains that the defendant's admissions and the prior conviction exception mean that "even if Blakely extends to the federal sentencing guidelines, this Court can apply the career offender guideline without violating the defendant's Sixth Amendment rights." Second, Judge Robinson explains that, though a Blakely-implicated and factually-disputed gun enhancement was arguably applicable, "whether or not the gun enhancement is applied, application of the career offender guideline results in an increase to Level 34" in the determination of the defendant's offense level.
In other words, if Blakely applies to the guidelines and the guidelines are fully severable, McBride gets no "sentencing windfall" and apparently would have no sentencing issues to appeal. But, the government's position is that the guidelines become completely inoperative and wholly advisory in cases with Blakely factors; that would entail in McBride an initial (appealable?) issue as to whether McBride is or is not a "Blakely case." And if qualifying as a "Blakely case," then the guidelines would be completely inoperative and wholly advisory, and defendant McBride could then argue for a sentence lower — perhaps much lower — than the nearly 22 years he received for his drug offense.
Notably, in an effort to cover all her bases, Judge Robinson did close her McBride opinion by stating: "And, if the federal sentencing guidelines were declared facially invalid, in imposing a sentence under the indeterminate regime predating the Sentence Reform Act, this Court would impose the very sentence it imposes now." This statement might readily lead one to conclude that McBride would get the exact same sentence under the government's theory of severability.
However, under the government's severability theory, I believe McBride would now have a lot of appealable issues: (1) McBride might be able to object (and appeal) that, as a matter of due process, he should have had an opportunity to present evidence on a variety of "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing; (2) McBride could object (and appeal) that Judge Robinson never explained why a 22-year sentence for a relatively minor drug offense constituted a "sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act (which, under the government 's theory, becomes the controlling legal standard for the imposition of sentences under 18 USC 3553(a)).
In the end, I believe the SG's lawyers are all much too smart not to see the many flaws and headaches in the government's own severability arguments. I am now of the belief that the government is simply trying to make the post-Blakely world of federal sentencing seem extremely chaotic in the hope that some member of the Blakely majority might become afraid to apply Blakely to the federal system.
Tuesday, September 28, 2004
Who will be getting "sentencing windfalls"?
In late July, I lamented here the failure of the US Sentencing Commission to take a leading role in the post-Blakely policy conversation about the future of federal sentencing. And, as detailed here, I was discouraged to see from the Acting Solicitor General's reply brief that the USSC is providing critical information about how many federal cases involve Blakely factors to DOJ and the SG without making that information publically available.
Rather than continue to bemoan these realities, I now want to focus my attention on the single data issue that seems most important to me on the issue of severability — namely, who would be getting "sentencing windfalls" if the guidelines are deemed severable? Of course, I have explained here and here that I am more concerned about lowered sentences if the guidelines are made wholly advisory than if they are severable. Part of what drives that instinct is my sense that the vast majority of federal offenses involve drug crimes or immigration offenses — offenses which (1) most federal judges believe are sentenced much too harshly under the existing guidelines and (2) involve offenders with many mitigating personal circumstances that the existing guidelines now declare irrelevant.
Let's look briefly at some of the numbers. According to publically available USSC data here, roughly 60% of the federal criminal case load involves drug offenses or immigration offenses. And this chart shows that, in roughly 70% of all drug cases and about half of all immigration cases, the defendant was sentenced at the absolute bottom of the applicable guideline range. Though this data could be interpreted in many ways, it does not seem unreasonable to speculate that in many of these cases sentencing judges freed from guideline constraints would be eager to go below (perhaps well below) the sentences now mandated by the guidelines. Indeed, the Ninth Circuit case discussed here provides a good example of how much more lenient a sentencing judge wanted to be in an immigration case if the guidelines had not served as a legal limit on leniency.
Of course, despite the fact that the federal criminal justice system is mostly about drug offenders and immigration offenses, my sense is that the SG and DOJ have their focus on a different (much smaller) class of federal offenders. Specifically, in comments to this post, "a government lawyer" says "there are defendants who swindled grandma & her friends out of $5 million who are looking at 6 month maximums." As this comment reveals, it seems that the government's true concern about "sentencing windfalls" comes in the context of fraud cases.
But, as Professor Frank Bowman highlighted here in USSC testimony last year, there is "a predominance of low-level, low-loss cases in the federal system." Most federal defendants are sentenced in fraud cases for losses caused of less than $40,000. I am sure there are a few cases of defendants "who swindled grandma & her friends out of $5 million," but is there really likely to be more than a handful of these cases in the pipeline? And is it worthwhile to jettison the entire guideline structure, and to allow thousands of drug and immigration offenders a chance at much lower sentences, simply to "save" that handful of cases (especially when, as I suggested here, upward departures might be available to avoid true sentencing windfalls in these cases)?
Of course, all my low-rent data analysis might be washed up here. But that is why I want to see, and have publically available, the more sophisticated work that the experts at the US Sentencing Commission must be doing.
Give the SG points for persistence
The Acting Solicitor General's reply brief (available here) makes a game effort to stick to its game plan, but both the reasoning and the strategy still leaves me puzzled. Let me detail some initial questions/concerns here:
On the applicability of Blakely to the federal sentencing guidelines: The logic of the SG's argument now seems to be that applying Blakely to the guidelines would essentially convert all guideline enhancement into elements, which is constitutionally problematic because only Congress can pass criminal statutes that create elements. It is a nice effort, aided clearly by the work of the Fourth Circuit in Hammoud, to try to make this case about the validity of Mistretta rather than about defendants' constitutional rights. But each step in this argument creates new puzzles.
First, it is long-established and essentially uncontested that Ex Post Facto doctrine limits the application of new guideline provisions; but that conclusion seems subject to the same concerns that the SG now raises about the application of Blakely. If treating the guidelines as the functional equivalent of statutes/elements for Ex Post Facto purposes has long been accepted and thought appropriate, I do not see why doing the same for the Sixth Amendment should be a real concern.
Second, though the line of cases culminating in Blakely have thrown around the term "element," the Court has also emphasized that effects and not form dictate the reach of the Sixth Amendment. Call it an element or a factor or Mary Jane, when the law makes a fact essential to the legal upper-limit of available punishments, five member of the Supreme Court have now said consistently for five years that such a fact must be proven to a jury beyond a reasonable doubt.
Third, as I suggested here in discussing Hammoud, there is a "through the looking glass" quality to the government's argument, especially given the Framers' apparent interests in democratic checks and balances and in safeguarding individual rights through the Bill of Rights. The consequence of the SG's argument, as I understand it, is that if and when Congress creates binding sentencing laws though traditional legislative means (securing approval by both houses and signature by the President), then defendants have the benefits of full constitutional procedural rights in the application of those laws. But if and when Congress finds a way to writing binding sentencing laws through non-legislative means (e.g., by creating an agency whose rules will be deemed legally binding despite never being traditionally enacted), then defendants have no procedural rights in the application of those laws.
On the severability of the federal sentencing guidelines if Blakely applies: The SG finally bites the bullet and explains with a bit more candor its complete views on severability. Parole is not back: footnote 3 of the SG's reply brief says the abolition of parole can be severed. Indeed, it seems all part of the SRA remain in place except the guidelines are no longer binding. But, clarifies the SG, the guidelines are completely jettisoned only in cases with Blakely factors, the guidelines should still apply with full binding force in cases without Blakely factors. The SG concedes that this suggested "use of two different sentencing schemes would no doubt lead to less proportionality and uniformity in sentencing," but that apparently is the price we must pay to avoid the prospect of "windfall sentences."
As I have explained here and here and here, the SG's proposed dual system with advisory guidelines in Blakely cases raises a host of critical administrative questions. But, most fundamentally, it makes it especially important, as I suggested here, to know exactly how many cases have Blakely factors. If only 20% of all federal cases have Blakely factors, the impact of the SG's proposed dual system with advisory guidelines used in 1 in 5 case is not all that dramatic. But the SG in its reply brief now represents that 65% of cases involve Blakely factors, which would mean that the SG is now urging the use of an advisory guideline system (a system which we know was expressly rejected by Congress when passing the SRA) in roughly two-thirds of all federal cases.
Beyond all these concerns, I wonder if DOJ and the SG fully appreciate the potential for bizarre and harmful gamesmanship which could (and likely would) result from its proposed dual sentencing system. Consider a defendant in a case without Blakely factors who might reasonably think she has a chance of a lower sentence without the guidelines' limits on the consideration of mitigating circumstances. (Martha Stewart or the defendant in this Ninth Circuit case come to mind.) That defendant would seem to have an incentive to obstruct justice, in order to create a Blakely factor, so that then a judge could be free to sentence lower than the guidelines.
Does DOJ really want a sentencing system in place which could create incentives for defendants to obstruct justice? Or, more importantly, do we really think this model of dual sentencing which could create these incentives better comports with Congress's goals when passing the SRA than simply requiring the government to actually prove all sentencing-enhancing guideline facts?
Sunday, September 26, 2004
Carefully thinking through "sentencing chaos"
There is no question that, as noted here and here, sentencing in the federal system has been chaotic in the wake of Blakely. However, the amicus brief filed by the NAFD makes (at p. 2) this provocative (and I think accurate) statement about the chaos:
For those who practice criminal law in the federal courts every day, the only chaos has been caused not by applying Blakely to federal criminal cases, but rather by those trying to avoid its application or to force its reconsideration.
The whole NAFD brief seeks to document how the "requirements of Blakely are assimilated readily into the federal sentencing scheme, with little or no change to current statutes or rules." Id. And district court decisions such as O'Daniel (discussed here and here) and Johns (discussed here), as well as the on-going cases detailed in the NAFD brief, certainly seem to back up the NAFD's assertions.
As a thought experiment, it is fascinating to imagine what the last three post-Blakely months might have looked like if DOJ and the US Sentencing Commission had tried to make lemonade from what they thought was a Blakely lemon. Surely the multi-directional circuit splits noted here and the wild variations in district court practices would not have been as diverse and dramatic if DOJ was not pressing arguments that seem to fly in the face of Blakely's holding and express language. (Of course, the decision by DOJ to "Blakely-ize" indictments highlights it did have the good sense to "preserve" on-going federal cases even while arguing Blakely's inapplicability.)
Though allocating blame for the last three months is certainly fun, I am more concerned now with the future than the past. And my review of the respondents' briefs in Booker and Fanfan have me convinced that chaos will continue to reign supreme if the SG prevails on its severability claims. I have highlighted before here and here and here various questions and concerns about the SG's severability claims, and the respondents' briefs only deepen these worries. I am hopeful, but not all that optimistic, that these questions and concerns will be addressed in the SG's reply brief.
Most pressing now, in my mind, is some account by the SG of how advisory guideline sentencing is supposed to work. The Fanfan brief astutely notes that the SG "devotes some 23 pages to attacking jury factfinding [but] begins and ends its discussion of advisory Guidelines in just over one page." Fanfan Brief at pp. 48-49. Even putting aside the initial critical questions of whether all or some cases get "advisory" treatment and what comes of all the Blakely-ized indictments, I am very curious as a matter of substance and procedure how advisory guideline sentencing is supposed to operate.
Here are just a few of the many questions I have about the operations of a guideline-advisory world:
1. What should a probation officer put in presentence report (PSR)? For the guidelines to truly be advisory, PSRs would still need to include guideline calculations (still based, I would assume, on both charged and uncharged facts that compell guideline enhancements). But, to aid a court exercising its (now unfettered) sentencing discretion, shouldn't a PSR also cover a broad range of "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing? Recall that the SG asserts that still operative is 18 USC 3553(a), which mandates that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act. It seems that a lot of mitigating "offender" facts — which have been deemed "not relevant" or "not ordinarily relevant" by the Commission in its binding guidelines — would become very relevant if the guidelines became merely advisory.
2. What should prosecutors and defense counsel put in sentencing memoranda to the court? Would prosecutors and defense attorneys be able to contest, either factually or legally, aspects of the PSR's advisory guideline determinations? Especially because these calculations might prove to be legally significant for Due Process/Ex Post Facto reasons, I would suspect that even advisory calculations might need to be heavily litigated (and perhaps subject to appeal, see point 4 below). And, in addition to raising issues about the shadow calculations, would prosecutors and defense attorneys then have separate sections in sentencing memoranda with arguments and recommendations concerning various "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent because binding guidelines declare them largely off limits?
3. What decision-making process must a sentencing court employ? Would a district judge have to resolve on the record factual disputes over advisory guideline calculation? Would departures still play a role at this stage — i.e., if a court would have departed (up or down) if the guidelines were binding, would that (possibly important but still hypothetical) decision need to be explained and justified on the record? When turning to the application of its discretion, would the court need to give a hearing to defendants interested in presenting evidence concerning various "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth? Again, recall that these offender issues arguably become legally significant to the extent a sentencing judge is required, pursuant to 18 USC 3553(a), to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act.
4. What happens to and during appellate review? The SRA's appellate review provision, 18 USC 3742, does provide for "plainly unreasonable" review when "there is no sentencing guideline." What will that mean in a world with advisory guidelines, and how might Due Process and Ex Post Facto claims fit into this strange new world of appeals from advisory guidelines? Would a defendant be able to raise claims about a PSR's or a district judge's "advisory" guideline calculations? Will a defendant be able to argue simply that an imposed sentence, no matter how low as compared to the advisory guidelines, was still "greater than necessary" to comply with the purposes specified in the Sentencing Reform Act?
Because I am in the ivory tower and not "on the ground" with the courts and lawyers handing out 65,000 federal sentences per year, perhaps I am mistaken that the SG's arguments raise all these challenging questions. (Indeed, I hope folks who are "on the ground" might use the comments to help me work through these issues.) But everything I have read is pointing me to the view that the SG's arguments on severability will actually create more, not less, sentencing chaos. Of course, there is that ever-present worry that some defendants might get a "sentencing windfall," SG brief at 68, but I will try to explain further tonight why even that concern may be something of a red herring.
September 26, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Severability of FSG | Permalink | Comments (3) | TrackBack
Tuesday, September 21, 2004
The Respondents' Briefs in Booker and Fanfan
I have now received the brief filed on behalf of Respondent Fanfan in the Supreme Court. It can be downloaded here:
I expect to have the Booker brief for posting soon, too.
UPDATE: And here it is:
Here come the amici for Respondents
In what I suspect is just the first two of a number of amicus filings, I have received the amicus briefs being filed by Families Against Mandatory Minimums and by the National Association of Criminal Defense Lawyers with the Supreme Court today in the Booker and Fanfan cases. The FAMM and NACDL efforts, both which address the applicability of Blakely to the federal guidelines and severability issues, can be downloaded here:
I hope to add any and all the other amicus filings I receive to this post and to use a separate post for the filings of the parties. Check back in later in the day, since I believe all the briefs must be filed this afternoon.
UPDATE: And now I have in copies of amicus briefs filed by the Washington Legal Foundation and by the National Association of Federal Defenders and by the New York Council of Defense Lawyers. The WLF and NAFD and NYCDL efforts can be downloaded below:
Monday, September 20, 2004
More insights on severability
In posts here and here last week, I raised various practical questions about the reach and consequences of the Solicitor General's arguments that, if Blakely applies to the federal system, then the federal guidelines are not severable. But, lest I be accused of placing pragmatism over principle, I should note here that I have thought from the outset that principled severability analysis also would support finding the guidelines severable because to do so seems to me to be more in keeping with the intent of Congress when it passed the Sentencing Reform Act.
Helpfully, late last week I received a copy of a district-court brief (with the client's name redacted) filed by Patrick O'Donnell of the firm of Harris, Wiltshire & Grannis, which does an extremely effective job of articulating why I have instinctually felt that finding the guidelines severable would better effectuate the intent of Congress when it passed the SRA. This brief can be downloaded below, and here are a few key passages:
The legislative history of the Sentencing Reform Act of 1984 (SRA) shows no particular intention by Congress that judges rather than juries find sentencing elements, and the determinative-sentencing Guidelines system can operate with either judge or jury finding such elements. Moreover, the legislative history does show a very deliberate effort to cabin judicial power, and Blakely’s holding that the Sixth Amendment requires juries rather than judges to find sentencing elements is entirely consistent with Congress's purposes in enacting the SRA....
Taking the Guidelines as "advisory" only while proceeding to sentence on Guidelines-driven judicial fact-finding, as the government suggests, is tantamount to simple defiance of not just Blakely's instruction but of Congress itself. That approach would defy Blakely by simply following the Guidelines approach and denying the defendant's Sixth Amendment right to a jury verdict on the decisive accusations, while giving lip service to Blakely itself. And it would defy Congress in at least three ways: 1) the frustration of Congress's decision to implement a determinative sentencing system, 2) the rejection of the value judgments made by the Sentencing Commission and approved by Congress regarding specific offense conduct, and 3) the judicial adoption of an alternative Congress expressly rejected: "[t]he Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory." Mistretta, 488 U.S. at 367.
Tuesday, September 14, 2004
Wouldn't most sentences be lower if the guidelines are non-severable?
As detailed in this recent post, I am worried about some potentially peculiar and problematic consequences of a ruling that the federal guidelines are (partially or totally) not severability. Moreover, though in this seemingly long-ago post I posited that the severability debate is a tussle between concerns about lawlessness and leniency, I am now thinking that, if the SG's non-severability argument prevails, we will have a federal sentencing world that is both lawless and lenient.
As noted before, the SG's advocacy of non-severability seems driven principally by a concern that some defendants "could receive a sentencing windfall," SG brief at 68, if the guidelines were deemed severable. But won't (many?) defendants be able to receive a bigger windfall if the guidelines are declared non-severable (especially if the guidelines become inapplicable in all cases)? I suspect that most federal judges agree with Justice Kennedy's assertion to the ABA last year that "[o]ur resources are misspent, our punishments too severe, our sentences too long ... [and thus the] Federal Sentencing Guidelines should be revised downward." If so, won't most federal judges go even lower without any guideline constraints than if constrained by the guidelines applied in a Blakely-compliant way?
Consider, for example, the Booker facts before the Supreme Court. With the guidelines severable and still partially binding, Booker must get at least 210 months. But with the guidelines non-severable and just advisory — though with the SRA's mandate in 18 USC 3553(a) that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment — Booker could receive a sentence as low as 120 months.
Alternatively, consider Martha Stewart's case. First, if the guidelines are completely non-severable in all cases (as two district judges have held), she has a right to resentencing; at resentencing she would have a reasonable argument that the SRA's requirement of "a sentence sufficient, but not greater than necessary," would call for a sentence with no jail time. Second, even if the guidelines are deemed non-severable only in cases with Blakely factors, Martha's lawyers might claim now that her case involves a Blakely factor so she can argue for a lower sentence under the government's non-severability theory.
Finally, consider the interesting and potent arguments made in a recent brief that I received (and provide for downloading below) that established due process and ex post facto doctrines preclude a judge from "retroactively increasing the potential penalty from the applicable Guidelines range to the statutorily prescribed maximum." In other words, constitutional doctrines may preclude judges from imposing harsher sentences if freed from guideline constraints — i.e., judges only discretion in a "non-severed guidelines world" may be to be more lenient (which, of course, may be what they really want to do anyway).
After I get through all this headache causing analysis, I come to wonder whether defense attorneys might in the end argue for non-severability, too, in Booker and Fanfan.
Sorting through non-severability concerns
The Solicitor General's brief in Booker and Fanfan does a fine job establishing that neither Congress nor the US Sentencing Commission expected or intended the federal guidelines to incorporate the sort of jury fact-finding that Blakely now suggests is constitutionally required. However, by ducking nearly all the tough severability issues (as explained here), the SG's brief fails to confront or even acknowledge the many potential problems that its non-severability argument presents.
Indeed, the more I think through the issue, the more I am concerned that adoption of the SG's non-severability claims will create far more chaos and uncertainty (and also perhaps more lenient sentences) than a severability ruling. Though I may need a series of posts to explain my concerns, let me try here to start spotlighting some of these issues:
1. What happens in cases without Blakely factors? As noted before, the SG brief ducks the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in federal sentencing cases that do not raise any "Blakely factors." If the Supreme Court does not speak to this issue, lower courts will be at sea — and likely will make contradictory rulings — about the applicability of the guidelines in "Blakely-free" cases. Moreover, if the guidelines are still to apply in cases without Blakely factors, might we start seeing defendants claiming that their cases involve Blakely factors in order to try to escape the guidelines' strictures (e.g., might Martha Stewart claim that her case really does involve a Blakely factor so she can argue now for a lower sentence under the government's non-severability theory)?
2. How can and should sentencing with advisory guidelines proceed? The SG says that, if and when the guidelines "fall as a whole," then the guidelines "would remain as advisory factors for the court to consider." SG Brief at 66-67. But, practically speaking, how would sentencing proceed in federal courts with the guidelines wholly and only advisory?
In such a guideline-advisory world, would probation officers still create presentence reports (PSR) with guideline calculations or should sentencing courts relieve probation officers of this responsibility? Or, perhaps more critically, could a court to aid its discretionary sentencing decision order a probation officer to investigate a broad range of issues — e.g., drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing?
And assuming PSRs still contained guideline calculations (which seems critical if the guidelines are to be advisory), would prosecutors and defense attorneys be able to contest, either factually or legally, aspects of the PSR's guideline determinations? Would and should a probation officer and a sentencing judge consider common downward departure arguments — e.g., extraordinary family circumstances, aberrant behavior — in the context of the established departure jurisprudence, or should judges just be completely free to consider these factors as they see fit?
3. What happens to appellate review? Even if the Supreme Court determines that appellate review continues despite the guidelines being non-severable, how will appellate review proceed in cases in which the guidelines are only advisory? The SRA's appellate review provision, 18 USC 3742, does provide for "plainly unreasonable" review when "there is no sentencing guideline." But what will that mean in a world with advisory guidelines? Would a defendant be able to raise claims about a PSR's guideline determinations if a non-guidelines sentence was based on "advisory" guideline calculations in the PSR? Can the defendant base appellate claims on the other provisions of the SRA that the government (at SG brief p. 67) claims are still operative —including the requirement of 18 USC 3553(a) that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the SRA (emphasis added)?
Because the SG's brief does not even begin to grapple with these questions, I wonder if the government has completely thought through all the consequences of a (partial or total) ruling on non-severability. I am quite worried that an excessive concern that a few defendants "could receive a sentencing windfall," SG brief at 68, has led the SG to advocate a position on non-severability that might actually create many, many more problems than it solves. In addition, as I will explain in a subsequent post, I actually think there is a much bigger risk that more defendants "could receive a sentencing windfall" if the guidelines are declared non-severable than if they are declared severable.
Sunday, September 12, 2004
The SG's artful dodging on severability
Though the Solicitor General's arguments about the federal guidelines' severability are much more in touch with reality than some of its arguments about Blakely's applicability to the federal guidelines, what stands out most in the SG's treatment of severability is the dodging of some of the toughest issues. I suppose I should be thankful that the SG did not avoid the severability question altogether, as has the US Sentencing Commission, but the Supreme Court surely would benefit from a fuller analysis of all of the tough and critical severability questions it faces in Booker and Fanfan.
First, as noted before here, the SG brief completely ducks the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in federal sentencing cases that do not raise any "Blakely factors." Recall that at least two federal judges have held that, if the guidelines are wholly inapplicable in some cases, then they are wholly inapplicable in all federal cases. Meanwhile, as detailed here, at least one Commissioner has opined that only one in five federal cases have Blakely issues. Whatever the true number, "lower courts will be in desparate need of guidance" (SG Brief at 43) about how to handle "Blakely-free" cases if SCOTUS applies Blakely to the federal guidelines.
Second, though the SG highlights that severability is an issue of statutory construction and legislative intent, the brief does not dig into all the challenging implications of these realities. For example, as I suggested here, perhaps the rule of lenity has some applicability in this setting, but the SG does not mention the doctrine at all.
In addition, the SG does not address which Congress's intent matters in assessing severability. (I previously noted here the intrigue of this question given that the 1984 Congress passed the Sentencing Reform Act (SRA), but the 1987 Congress approved the initial federal guidelines, while the 2003 Congress directly amended the guidelines in the PROTECT Act, and Congresses (Congri?) from 1988 through 2004 continued to approve/authorize the current guidelines and amendments thereto). The "which Congress" question seems consequential since, as noted here, the Congress that passed the SRA was primarily focused on remedying lawlessness, while more recent Congresses have shown a particular concern about perceived leniency.
Finally, since the SG contends that the SRA is severable by arguing that the provisions of 18 U.S.C. 3553(a) would still govern federal sentencing even if Blakely is applicable to the federal guidelines, see SG Brief at 67, I suppose it is understandable that the SG does not address the continued validity of sentencing appeals or supervised release or the abolition of parole or other fundamental features of the SRA. Nevertheless, as noted here, the broadest claim of non-severability raises a host of critical, practical issues not even acknowledged by the SG.
Head-counting in an alternative universe
Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here and commentary here) includes a brief explanation for the Circuit's recommendation that district judges "announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only." This explanation helps me understand a bit better why a majority of the Fourth Circuit believes that "announcing — not imposing — a non-guidelines sentence at the time of sentencing will serve judicial economy," even though the court recognizes that the "announcement of a non-guidelines sentence may require the district court to consider issues not generally pertinent in guidelines sentencing, thereby requiring the investment of additional time at the sentencing hearing."
But, like other aspects of the Hammoud decision, the alternative sentencing explanation leaves me with more questions than answers. First, in light of the Fourth Circuit's recommendation, shouldn't the disposition of the Hammoud case been a remand for the announcement of an alternative sentence? Wouldn't it be useful, to paraphrase the Fourth Circuit, for "the district court and the parties [to make] at least substantial progress toward the determination of a non-guidelines sentence [in Hammoud's case], at a time when the facts and circumstances [are still] clearly in mind"?
Second, Judge Widener's dissent to the "alternative sentence" portion of the Hammoud ruling asserts that "even if the recommended advisory sentencing is discretionary, about which I have some doubt, in my opinion, it is inadvisable." This statement and the majority's discussion raises, but does not answer, the question of whether district courts may lawfully refuse to follow the alternative sentencing recommendation. May Judge Goodwin continue to refuse to impose alternative sentences (as thoughtfully explained here), or must he now get in line? The Hammoud majority's oblique footnote addressing Judge Goodwin's serious concerns about alternative sentencing does not answer this question. And since Ron reported here that most district judges in the Fourth Circuit have not been announcing alternative sentences, this is a question that may be on the minds of many district judges in the Fourth Circuit.
Finally, I have a distinct empirical/practical question: Is anyone keeping track of how many and what sorts of alternative sentences have been announced in the Fourth Circuit and elsewhere after Blakely? I hope and expect the US Sentencing Commission is collecting this data, and the recent memo from the Judicial Conference Criminal Law Committee discussed here suggests that the federal Bureau of Prisons might also be tracking these issues. Recall also that DOJ through the Comey memo (available here) urged its prosecutors to seek alternative sentences and indicated it would be collecting lots of data during this chaotic period.
Whomever may be keeping track of alternative sentencing data, I sincerely hope that this data can be systematically tallied and made available to the public as soon as possible. I think I can fairly speak for the academic and research community when I say that many academics and researchers will have an interest in examining and analyzing alternative sentencing data.
Saturday, September 11, 2004
USSC's views about severability??
After many brief-related posts on the applicability of Blakely to the federal sentencing guidelines (see, e.g., posts here and here and here; see also Hammoud post here), this weekend I am starting to focus on the Booker and Fanfan briefs' approach to the even tougher issue of severability.
Though a lot more severability analysis will follow in this space (and follow-up my preliminary discussion here), my first observation here concerns the disconcerting absence of any severability analysis or discussion in the US Sentencing Commission's brief. The USSC's brief stresses it is an "independent" agency which spends all its time and energy analyzing sentencing decisions and data (cf. Jason Hernandez's effective post examining the USSC's brief). Given its own claims about its institutional role and work, the USSC should have the most informed and the most thoughtful perspective on the guidelines' ability to operate without judicial fact-finding of sentence enhancing facts. At the very least, one would hope and expect the USSC could figure out, and would make public, roughly how many federal sentences turn on judicial fact-finding of sentence enhancing facts. (Recall that, as detailed here, at least one Commissioner has publically opined that ''eighty percent of the cases in the whole country are unaffected" by Blakely.)
Moreover, the Solicitor General's brief asserts that "the severability analysis must take into account the intent of the Sentencing Commission." SG Brief at 45-46. If this is so, shouldn't we hear the intent of the USSC straight from the USSC? The SG's brief makes a number of representations about the Commission's intent, but remember that the SG is a party in Booker and Fanfan with a necessarily biased perspective on such issues.
My guess is, based in part on this report from Tony Mauro, that the USSC could not internally reach a consensus view on the tough issue of severability (or, dare I suggest the possibility, perhaps the USSC is working on a brief in support of the respondents on this issue). But, whatever the realities surrounding the USSC's legal (non)position on severability, I think the USSC undermines its own description of its institutional role and work if it does not soon disseminate at least some preliminary data about how many federal sentences in fact turn on judicial fact-finding of sentence enhancing facts.
Thursday, September 02, 2004
The SG and Severability
As with the arguments that Blakely does not apply to the Federal Sentencing Guidelines, there is so much to say (and likely to be so many coming posts) about the argument that the "Guidelines as a whole are inapplicable in cases in which the Constitution would override the Guidelines' requirement that the district court find a sentence-enhancing fact." I have not even had a chance to read closely the specifics of the SG's argument on this issue, but two quick observations already seem essential:
1. On page 67 of the SG's brief, the government seems not only to concede, but also to contend, that the Sentencing Reform Act of 1984 (SRA) is severable. Specifically, the government explains in detail that the provisions of 18 U.S.C. 3553(a) would still govern federal sentencing even if Blakely is held applicable to the federal guidelines. Thus, the real severability issue in Booker and Fanfan is apparently not whether some aspects of the federal sentencing system is severability, but rather only which aspects are severable. (Arguably, the emphasis in the Senators brief on the SRA as a "comprehensive plan" might be in tension with the SG's "pro-severability" claims, but I will leave it to others for now to debate this fine point.)
2. From a very quick read, it seems that the SG is completely ducking the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in cases that do not raise any "Blakely factors." As noted here and here, at least two federal judges are on record (Judge Gertner in Meuffleman and Judge Presnell in King) as saying that, if the guidelines are wholly inapplicable in some federal cases, then they are wholly inapplicable in all federal cases. I was hoping to see the SG's brief address this critically important issue head on.