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July 29, 2004

Thesaurus of rhetoric

One reason the Acting Solicitor General's latest filings are so great to read is because of all the different ways the post-Blakely world is discussed. Here's a taste:

Booker/Fanfan Reply Brief
at p.2: "The fragmentation of the law on the most basic questions in federal sentencing presents a compelling case for guidance from this Court, in order to stem a flood tide of contradictory approaches applied in thousands of sentencings — many of which may have to be redone once this Court settles the applicable law."

at p.10: "[A]waiting further percolation in the lower courts is not a luxury that the federal criminal justice system can afford. There is a pressing need for this Court immediately to step in and restore uniformity to federal sentencing — and that need mandates that review be undertaken now, not in the fullness of time."

at p. 14: "The disarray among the lower courts here is also comparable to that in Mistretta, and the disarray is increasing daily."

at p. 15: "[There is a] glaring need for expedited consideration of the issues now. Awaiting the filing of petitions in other cases ... would be to ignore the urgent need for guidance that the lower federal courts have justifiably requested."

at pp. 20-21: "[T]he federal judicial system is in dire need of this Court’s prompt resolution of the issues presented. The defense bar’s caution aside — a caution that coincides with the reduced sentences that many defendants are receiving in the current reign of confusion over Blakely — there is widespread sentiment in the lower federal judiciary that, absent this Court’s expedited intervention, federal sentencing threatens to descend even further into a balkanized set of regimes in which each circuit, if not each individual district court judge, literally makes up the rules as he or she goes along. This chaotic state of affairs cannot stand. It can only be rectified by expeditious action by this Court."

Bijou Opp. Cert. at pp. 5-6: "Blakely has profoundly unsettled the federal criminal justice system and ... there is an urgent need for this Court’s resolution of questions about whether and how Blakely applies to the Guidelines."

Reply on Expedite Motion
at p. 6: "The division of the courts on the question whether Blakely applies to the Guidelines (the first question presented by the petitions) pales in comparison to the profound confusion in the lower courts over the implications for sentencing if it does."

at p. 7: "[D]istrict courts have continued to apply a variety of mutually inconsistent approaches to implementing Blakely"

at p. 8: "In light of the profoundly fractured nature of the lower courts’ holdings, it cannot seriously be maintained that the federal courts have adapted well to Blakely’s teachings."

and here's a fitting finale on p. 10: "If respondents and their amici are correct in their assertion that Blakely will result in the invalidation of the Guidelines irrespective of whether a case involved enhancements based on judicially found facts, every single Guidelines sentence is potentially invalid." (emphasis in original; citation omitted)

July 29, 2004 at 05:09 PM | Permalink


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i need some information for my son who is in a Federal Prison awaiting sentencing....My son took a plea in 2001 which he has not been stenteced for yet. He pleaded guilty to conspiracy to distrubute crack cocaine and heroine(21usc846) and (use and carrying a firearm in relation to to a drug trafficing crime(18usc924(c)(1)(b)(i). but when his p.s.i. came back they applied to count (1) the drugs 2dl.l pursuant to 2d1kd)if a victim of a drug offense was killed under circumstances that constitute murder under 18 usc 1111...apply 2a1.1) which put him at level 43 then they added 3 more level increases pursuant to 3B1.1(b) which brings him to level 46. can they legally do this now? According to (Blakely V Washington)?

Is an overt act a charge? As an overtact he pleaded guilty to conspiracy to murder. but he was never offically charged with that. I await your response as soon as possible. Thank you Maria

Posted by: maria pepin | Jul 29, 2004 8:28:00 PM


Here's my quick response to your question but I'm constrained to note that you shouldn't take it as a legal opinion because I'm not fully familiar with the facts, only the ones you've tried to provide in your e-mail. I also encourage you to discuss this with your son's lawyer, since he or she will be much more familiar with the circumstances of his case and would be better equipped to provide a more thorough analysis.

That being said, if he had not admitted his involvement in the murder conspiracy, the issue would be a little more clear under Blakely (assuming you are in a jurisdiction in which courts have held it applies to the federal guidelines). Having made some type of admission about the murder conspiracy, he still might be able to be sentenced on it under Blakely, although there might be a number of arguments that might be be raised against that--what burden of proof (preponderance, beyond a reasonable doubt) should be used to determine whether the sentence should be enhanced for it, whether he admitted enough facts to justify the enhancement, among others. All of this might also depend on the terms of the plea agreement, assuming there was one.

So, there are certainly reasons to explore whether Blakely provides any benefit and to think about getting your son sentenced quickly before the pendulum swings back in the government's favor (which it may do in the near future through congressional or judicial action).

With respect to overt acts, they're not independent crimes but under the sentencing guidelines, they may be considered "relevant conduct" that could be considered in determining the sentence (assuming they were admitted or proven). How your son's admission was going to used was likely covered by the plea agreement but if there was no plea agreement (there sometimes isn't), can you tell me how it came about that he admitted to the murder conspiracy when he pleaded guilty. I'm sorry but I'm not sure exactly what happened in the PSI with respect to the other enhancements, so I can't give you any advice about that at this point.

The answers to some of these questions may not be ones you'd want to discuss in this public forum, in which case you may e-mail me directly. If that's not the case, however, I'd prefer the dialogue to play out here so others can review and comment upon it.

By the way, I'm a federal criminal defense lawyer in New York City.

Alex Eisemann

Posted by: Alex E. | Jul 30, 2004 1:39:14 PM

Is there any difference in the treatment of non-violent gun crimes as far as violent gun crimes in the minimum sentencing guidelines? I have a friend who altered a firearm, but did not use it on anyone. That was his only charge! Just altering it, to see if he could do it. He is now in prison for 2 years. This hardly seems fair. What are your thoughts? I am a student reading your blog. I thought that because of my personal connection to this friend that I ought to explore the issue a bit more from a knowledgeable person such as yourself. I will probably report my findings in a paper of some sort. Thanks for the help.

Posted by: anonymous | Sep 7, 2004 2:00:45 PM

My husband has been found guilty on several robbery charges can u tell me what is 9/24c in the sentencing guide. He is in the couny jail awaiting sentencing

Posted by: Jacqueline Robinson | Aug 7, 2006 12:54:34 PM

I am just a woman with common sense. What can be done after a subject has served his sentence and you know that the subject was set up by two other people who were not even brought into court for the same thing. We ask our attorney to send in an addendum to the Appellate Court reference Blakely, he stated that the courts frowned upon extra paperwork being filed. Did not file paperwork to extend the Appeal. Can he sue the subjects involved after release.

Posted by: Brenda | Jul 2, 2007 8:21:59 AM

I'm sorry but I'm not sure exactly what happened in the PSI with respect to the other enhancements, so I can't give you any advice about that at this point.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:12:09 AM

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