An amicus brief on waiver

Yesterday I received a final copy of an amicus brief filed in support of the respondents in Booker and Fanfan. (I suspect that this will be the first of many such amicus briefs; I speculated with my class yesterday that there might be as many as a dozen amicus filings in support of the respondents.)

This first amicus was filed by the Office of the Federal Public Defender in the Northern District of Texas, and interestingly it does not directly address a specific issue before the Supreme Court in Booker and Fanfan. Rather, as the brief explains, it is addressed to "the issue of whether a simple admission of facts, other than the fact of a prior conviction, can function as a waiver of constitutional rights." The brief was needed, explains the author, because it "appears from the caselaw, commentary, and the known positions of the parties that this important issue will not be addressed."

The brief, which can be downloaded below, is an interesting read. Here is the conclusion, which sums up the brief's main points well:

Blakely, citing Apprendi, discussing Almendarez-Torres does not support the proposition that a defendant can waive constitutional rights by simply admitting facts, which are not facts related to a prior conviction, that increase the relevant statutory maximum sentence. Any such statement is contrary to this Court’s precedent. The defendant, however, can admit facts in conjunction with a valid waiver of enumerated rights that will allow the judge to increase the relevant statutory maximum sentence. As part of this procedure, the sentencing court must fully inform the defendant of the rights being waived and the results of such a waiver. Only then will a defendant knowingly and voluntarily have waived constitutional and statutory rights....

The bottom line is that the application of Blakely to the Federal Sentencing Guidelines, when combined with admitted facts and valid waivers, will result in defendants actually receiving the guideline range that they bargained for: this would be real "truth in sentencing."

Download bookerblakely_waiver_amicus.pdf