First Circuit mutters!!

In this crazy post-Blakely world, one amazing discovery I have made — or perhaps I should say one supposition I have had confirmed — is that many important and consequential decisions are announced in unpublished opinions. Yet another example comes again from the First Circuit, which yesterday in US v. Morgan, No. 03-1768 (1st Cir. Sept. 2, 2004), addressed key issues of waiver and plain error review of Blakely claims.

First, in contrast to a recent California decision in People v. Ochoa (noted here), the First Circuit in Morgan first suggests (though does not quite hold) that the defendant waived his Blakely claims, even though Blakely was decided after his case was appealed and argued and even though he disputed at sentencing the amount of drugs involved in his offense. Then the court ducks deciding this issue by saying that even if the defendant merely "forfeited" and did not waive his Blakely claim by not raising it sooner (i.e., before Blakely was decided), the defendant still would not prevail in his appeal under plain error analysis:

Plain error review is extremely deferential.... Under existing (post-Apprendi, pre-Blakely) First Circuit precedent, the judge is empowered in a conspiracy case to determine the exact amount of drugs that a defendant reasonably foresaw, so long as his sentence is no greater than that which could be imposed based on the total quantity of drugs that the jury had found for the conspiracy as a whole. See Derman, 298 F.3d 34, 42-43. Because the trial judge acted in accordance with circuit precedent, we cannot say plain error occurred, and we need not proceed further.

As an unpublished decision, I do not think Morgan is binding precedent that Blakely does not apply in the First Circuit. But the decision certainly is in tension with all the First Circuit district court decisions (such as Fanfan and Meuffleman) finding that Blakely renders at least portions the federal guidelines unconstitutional.

In addition, the facts of the Morgan case provide a stunning example of the potential importance of Blakely and especially the requirement that sentence-enhancing facts are found beyond a reasonable doubt. The defendant in Morgan throughout the case contested the amount of drugs that the government was trying to attribute to him, and the First Circuit affirmed the sentence by relying heavily on the fact that, under pre-Blakely law, such drug amounts only have to be found by a preponderance. Here is the first paragraph for the Morgan court's substantive analysis:

As oft-written, "[w]e review the sentencing court's factual findings, which must be supported by a preponderance of the evidence, for clear error." United States v. Lopez, 299 F.3d 84, 87 (1st Cir. 2002), citing United States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997). That "preponderance," United States v. Marks, 365 F.3d 101, 105 (1st Cir. 2004), simply requires the government to present enough information, free from the strictures of the rules of evidence which do not apply to sentencing hearings, "provided that the information has sufficient indicia of reliability to support its probable accuracy," Lopez, 299 F.3d at 89; Fed. R. Evid. 1101(d)(3), to make it more likely than not that the fact to be proved is true.

Download us_v. Morgan.pdf