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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.

July 31, 2004 at 11:00 PM | Permalink


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I think Judge Molloy's decision in U.S. v. Hankins is a lot more interesting than you have indicated, and not at all peculiar. It would be peculiar if Blakely meant that Sentencing Commissions could now declare certain facts elements of offenses, a situation Judge Molloy rightly points out Scalia seems unlikely to endorse. (Of course Scalia thinks there shouldn't be Sentencing Commissions at all, but what about Stevens, Souter, and Ginsburg?)
Why not read Blakely as applying the rule of Apprendi that LEGISLATURES create elements when they link a fact to an increase in a STATUTORY maximum. Once they have done this, neither judges nor Commissions can turn those facts back into mere sentencing factors; they must instead be admitted or proven to a jury.
This approach has the advantage of enhancing Sixth Amendment rights while preserving a role for judges and commissions to fine-tune sentences within the statutory ranges established by Congress for the offense(s) of conviction. It addresses what many, such as Justice Stevens in his dissent in Watts, have seen as a serious problem with the federal guidelines---sentencing offenders for acquitted and uncharged criminal conduct as if they had been convicted of the conduct. At the same time, it avoids gutting sentencing reform or burdening the courts by mandating jury factfinding for every fact that increases a sentence. Seems like an elegant solution to me.

Posted by: Paul | Aug 9, 2004 6:50:09 PM

This approach has the advantage of enhancing Sixth Amendment rights while preserving a role for judges and commissions to fine-tune sentences within the statutory ranges established by Congress for the offense(s) of conviction.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:01:19 AM

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