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July 21, 2004
The US Sentencing Commission speaks (sort of)!
I was just forwarded an article to appear in the Chicago Daily Law Bulletin which sets forth some viewpoints of US Sentencing Commissioners on Blakely. Based on what I have heard from folks dealing with Blakely "in the trenches," there are aspects of the article that are absolutely astounding. Apparently in an interview US District Judge Ruben Castillo asserted:
that only about a fifth of the sentences in federal court involve upward departures made on the basis of factual determinations made by the sentencing judge. ''Eighty percent of the cases in the whole country are unaffected,'' Castillo said.... [And] ''All indications are there's going to be zero retroactive application of Blakely,'' Castillo said.... ''I think at the end of the day, we're going to be left with a very discrete number of cases that are going to be affected by Blakely,'' Castillo said.
Though the retroactivity point is complicated and contestable (some thoughts here), the claim that 80% of federal cases are "unaffected" almost took my breath away. I hope readers who might have view on this important point will use the comments to explain whether I should resist suggesting that USSC rhymes with ostrich.
July 21, 2004 at 12:23 PM | Permalink
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Comments
The Castillo article appeared in the 7/15 Law Bulletin.
Posted by: Chicagoan | Jul 21, 2004 12:44:26 PM
Defense Lawyer--Our members at NYCDL.org (most significantly reflected in the Members' section, not the public page, which has only a few items) are hugely indebted toyou for your Blakely coverage.!!! With respect to your question about the percentage of all federal sentences affected by departures, go to USS Commission-Publications-Reports to Congress-October (I think) 2003 report on downward departures, page 32, figure 1, which has the data re all departures. See also following pages. Note that 5K1 downward departures for substantial assistance re reported separately from all other downward departures--Cheers and thanks again--Mike Shawl
Posted by: Mike Shaw | Jul 21, 2004 12:46:56 PM
Defense Lawyer--Our members at NYCDL.org (most significantly reflected in the Members' section, not the public page, which has only a few items) are hugely indebted toyou for your Blakely coverage.!!! With respect to your question about the percentage of all federal sentences affected by departures, go to USS Commission-Publications-Reports to Congress-October (I think) 2003 report on downward departures, page 32, figure 1, which has the data re all departures. See also following pages. Note that 5K1 downward departures for substantial assistance re reported separately from all other downward departures--Cheers and thanks again--Mike Shawl
Posted by: Mike Shaw | Jul 21, 2004 12:46:59 PM
On July 14, 2004, after citing "[your] own two cents" comment regarding the hearings before the Senate Judicairy Committee, I posted in Macondo Law "USSC Statistics and Get Ready for 'Fix'" which states, in part as follows:
I would really like to see what the USSC is referring to when it states that the majority of federal sentences do not involve Blakely sentencing enhancements (assuming Blakely applies, which the USSC also states it does not). In my experience, I cannot make such an assertion. We should get these numbers from the USSC. Ever hear of relevant conduct, role in the offense, abuse of position of trust, weapons enhancements, enhancements based on amount of loss, etc.? Maybe the USSC is assuming that the stipulations in plea agreements -and now the Blakely waivers- place those cases outside Blakely. But even if only 20% involved Blakely factors, it would still be a big problem, I would think. I do agree 100% with Professor Berman as to his observation: "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.'"
Posted by: Tom Lincoln | Jul 21, 2004 12:56:02 PM
In the criminal cases I've seen post-Blakely, I have to admit that Judge Castillo is not totally off in his assertion. In _most_ of the pleas we've seen and sentences handed down since Blakely, the facts in the plea agreement form the basis for any enhancements that might apply. I don't know that I would say 4 out of 5 cases aren't affected, but certainly a majority of cases presented for sentencing have not had Blakely problems--either because there were no enhancers or because the facts admitted to in the plea agreement formed the basis for the enhancement.
With that said, there are categories of cases to which Blakely will always be a problem -- like drug distribution cases or some kinds of theft cases. But, in our district, prosecutors are beginning to employ Blakely waivers, so those cases may or may not be categorically troublesome.
Posted by: District Court Battling Blakely | Jul 21, 2004 1:44:17 PM
Law student. The disagreement on this point may reflect uncertainty over what a "fact" is for the purposes of applying the Blakely rule. Many Guidelines provisions call for "mixed" determinations (as the pre-Blakely case law on the standard of review that should apply to appication of the provisions suggests). I think one may argue persuasively that some enhancements call for the judge to make a determination of law rather than one of fact; hence, no Blakely violation.
Posted by: Phil Fortino | Jul 21, 2004 2:07:58 PM
Defense appellate attorney: Comm'r Castillo appears to be assuming that Blakely, if applied to federal sentencing, will only "affect" upward *departures*, and not upward adjustements, relevant conduct, cross-references, alternate base offense levels, and more. Very few judges and lawyers seem to agree with that. True, the invalidation of upward departures under Blakely is virtually a "no-brainer," given the language of sec 3553(b)(1). But the impact, if applied at all, is very to be far greater.
Posted by: Peter G | Jul 21, 2004 2:13:55 PM
I agree with Peter in that it seems the USSC is implying that Blakely is only going to affect Chapter 5 upward departures, I don't personally agree, but that seems to be what they are trying to limit it to. And am I not mistaken that the washington state Blakely ruling itself was only about upward departures, and not enhancements, adjustments, and/or relevant conduct?
I find the following statement in the ruling for the plurality of Blakely:
"Here, the judge could not have imposed the 90-month sentence based solely on the facts admitted in the guilty plea, because Washington law requires an exceptional sentence to be based on factors other than those used in computing the standard-range sentence"
I assume the USSC is arguing that for the purposes of computing a "standard range sentence" that it is including relevant conduct, chapter 2 enhancements, and also chapt 3 adjustments. But what blakely calls into doubt is simply only the chapter 5 upward adjustments, as they are not usually including in computing standard range sentences and don't have "set point" increases such as role adjustments, obstruction adjustments, etc......
I personally hope this view is wrong, because I think that ALL facts which increase a defendants sentence, if not admitted, should be submitted to a jury, but we will see.
Posted by: Nick Hanson | Jul 21, 2004 2:50:11 PM
First, Castillo's use of "departures" is odd. Can't tell if he's just being sloppy and the word includes every adjustment, enhancement, or the like or if he's deluded himself into thinking Blakely applies only to true "departures," not other upward adjustments.
Second, he may mean something that makes sense. If what he means is that only about a fifth of cases involve an upward adjustment that is actually contested as a factual matter, thus forcing a judicial fact-finding, he could well be right. He might even be over-estimating the impact. A vast segment of the criminal docket involves cases in which there are few enhancements, and those are seldom contested. I think of illegal reentry and simple drug cases, postal thefts, and the bulk of similar federal criminal work. Really, once the dust settles, and it's confirmed that Blakely applies to the Guidelines, there won't be that much to fight about.
There is a view, which I, as a long-time criminal appellate practicioner, share, that we can muddle along pretty well (once the government starts indicting for guidelines factors) until the best adjustment to accommodate Blakely and the guidelines is chosen.
Posted by: David in NY | Jul 21, 2004 3:01:05 PM
And I see on closer reading of the comments that the district court above shares my view about Blakely's impact, in part.
Posted by: David in NY | Jul 21, 2004 3:07:08 PM
The disagreement on this point may reflect uncertainty over what a "fact" is for the purposes of applying the Blakely rule. Many Guidelines provisions call for "mixed" determinations (as the pre-Blakely case law on the standard of review that should apply to appication of the provisions suggests).
Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:19:21 AM
