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July 18, 2004

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.

Download USvHarris.pdf

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.
Download USvLeach.pdf

July 18, 2004 at 01:55 PM | Permalink


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This blog provides a wonderful service, but let me take issue in two respects with the title of this post: "FSG found unconstitutional all across Pennsylvania."

First, it's not correct to state that the Federal Sentencing Guidelines have been found unconstitutional "all across Pennsylvania" (which I understand to mean "throughout Pennsylvania in its entirety") based on rulings from the U.S. District Courts for the Eastern and Western Districts of Pennsylvania. Why not? Because doing so overlooks the existence of the U.S. District Court for the Middle District of Pennsylvania, which may be the U.S. District Court that covers the largest geographical expanse of the Commonwealth of Pennsylvania.

Second, and at least equally important, is the point that a single U.S. District Judge's ruling does not bind the other U.S. District Judges who serve on the same court. Other judges serving on the U.S. District Courts for the Eastern and Western District of Pennsylvania remain free to reach their own conclusions as to the constitutionality of the U.S. Sentencing Guidelines. Indeed, as you know, in the U.S. District Court for the District of Utah, different federal district judges have issued conflicting decisions on the constitutionality of the federal Sentencing Guidelines in Blakely's aftermath.

But enough with the marginalia. Here's the question I bet is on everyone's mind -- What would the blog "Sentencing Law and Policy" have been writing about had the Blakely case been resolved 5-4 in favor of Washington State instead of 5-4 in favor of Blakely?

Posted by: Howard Bashman | Jul 18, 2004 8:16:28 PM

Fine points of marginalia, Howard, with an appropriate correction made. You are right, of course, that Blakely has created amazing copy for this blog. But you can and should check the pre-Blakely archives to notice how much else of importance was and is going on in the sentencing arena before Blakely rocked this world. Indeed, I wish I had time and energy to keep noting all the other non-Blakely sentencing stories of still great importance -- e.g., felon disenfranchisement, death penalty developments, other collateral consequences, etc. But, unlike you Howard, I'm not able to keep up with everything. ;-) Thanks for reading and also for keeping me accurate.

Posted by: Doug B. | Jul 19, 2004 3:00:25 AM

Thanks for the excellent blog, Doug. I'm concerned with Judge Dalzell announcing an "alternative" sentence. Unless I'm missing something, isn't such a pronouncement counter to the entire doctrine against federal courts issuing advisory opinions? Just curious...

Ryan Struve
3L - University of Iowa College of Law
Summer Intern - Department of Justice, Antitrust Division, Cleveland Field Office (Yes, I realize I'm in Montgomery-ville)

Posted by: Ryan S. | Jul 19, 2004 3:15:50 PM




Posted by: GAY TRAUTMAN | Jul 20, 2004 8:44:05 AM


As far as I know, the 3rd Circuit Court of Appeals has not spoken on the issue. The Harris and Leach district court opinions, linked above, are the only opinions from the Third Circuit. Good luck with your pro se defense.

Posted by: Ryan S. | Jul 20, 2004 2:09:13 PM

Unless I'm missing something, isn't such a pronouncement counter to the entire doctrine against federal courts issuing advisory opinions?

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:32:53 AM

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