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October 24, 2004

Living with Blakely and Ameline

Early last week I asked here about what the federal sentencing world was like in the Ninth Circuit, which as a result of the decision in Ameline is the one jurisdiction having to deal directly Blakely-ized guidelines. Interestingly, one district court clerk indicated in the comments that "we are not having much trouble adjusting to the post Ameline world.... Our court conducts 3 sentencing proceedings each week and I would estimate that a contested Blakely issue only arises once a month at the most."

But this article in the LA Times paints a much different picture of life "on the ground" in the Ninth Circuit. The article's headline asserts that Blakely and Ameline have caused "confusion for federal jurists and prosecutors," and it portrays the state of federal sentencing in Los Angeles as chaotic. One especially interest section of the article details a dispute over efforts to secure Blakely waivers in LA:

[Chief Assistant US Attorney George] Cardona said ... that more than 97% of all criminal cases brought by his office end in guilty pleas. Accordingly, the U.S. attorney's office has adopted a policy of including so-called Blakely waivers in proposed plea agreements. By signing such a waiver, a defendant agrees to be sentenced under the old guidelines that are now under a cloud.

Maria E. Stratton, chief federal public defender in Los Angeles, has raised legal and ethical objections to the waivers. "If the guidelines are unconstitutional, they are unconstitutional, and our clients cannot and should not be sentenced under them," she wrote to top brass at the U.S. attorney's office.

Stratton added that her office would refuse to enter into any Blakely waivers, except in cases where the maximum punishment would fall between zero to six months in custody. She said she would consider authorizing an exception only under extraordinary circumstances. "I believe this response to the waivers proposed by your office is the ethical way to represent our clients and constitutes effective assistance of counsel," she said.

October 24, 2004 at 04:10 PM | Permalink


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From the defense bar I would tend to agree more with the LA Times article. Here in the Northern District of California confusion runs rampant. Many if not most judges are dealying sentencing until after the new year, hoping for further guidance from SCOTUS. Meanwhile the defense bar and ASUAs are arguing over pre-Blakley indictments and whether Ameline actually dictates sentencing procedure in such situations. Moreover, subsequent cases such as US v. Patterson 2004 WL 1858114 preclude the government from proving specific offense characteristics not pled in the indictment.

As a consequence, and to the chagrin of some judges and AUSAs, defendants have been pleading to the sheet on pre-Blakely indictments and then arguing sentencing may only be based on the bare offenses that were admitted in the plea colloquy. The waters have indeed muddied.

Of course, careful post-Ameline indictments plead every enhancement in the book and in that sense, things have normalized somewhat. But anyone who was indicted or has been sentenced pre-Ameline, or who has pled post-Ameline remains down the rabbit hole of 6th (and 5th) amendment uncertainty, uncertainty that is likely to continue for some time.

Posted by: matthew siroka | Oct 25, 2004 12:48:34 PM

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