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October 7, 2004

The data plot thickens

As many readers know, I have long been obsessing over just how many federal cases have Blakely factors and how different rulings in Booker and Fanfan could impact the operation of the federal sentencing system. (See generally posts here and here and here and here.) And, as detailed here, I was fascinated by a representation in the Acting Solicitor General's reply brief concerning the number of cases that involve Blakely factors, which was apparently based upon a U.S. Sentencing Commission internal memo that I thought was not publically available.

This data story has taken an interesting turn based on a letter I received this morning (which can be downloaded below) that was apparently filed by the Acting SG with the Supreme Court yesterday. The letter "proposes to lodge material with the Clerk that is relevant to" Booker and Fanfan — namely "a copy of a three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath on the subject 'Estimate of Number of Cases Possibly Impacted by the Blakely Decision,' which the Commission’s General Counsel made available to the Office of the Solicitor General." As the Acting SG's letter explains:

The memorandum’s author, Dr. Lou Reedt, is Director (Acting), Office of Policy Analysis, United States Sentencing Commission. The memorandum's recipient, Tim McGrath, is Staff Director of the United States Sentencing Commission.

The Commission informs us that the memorandum is an internally generated staff document prepared in an effort to project what the impact of Blakely might be, and that it has been made available to anyone who has requested it.

Fascinatingly, this "lodging letter" to the Supreme Court then goes on to make substantive points — as if this letter was a supplemental brief — about the way the Supreme Court ought to interpret the data in the Sentencing Commission's memo:
The government does not agree with all of the assumptions and speculations made in the memorandum, particularly with respect to the extent to which plea agreements may reduce the impact of applying Blakely to the Guidelines through stipulations or waivers. The extent to which such plea agreements could or would reduce the impact of applying Blakely to the Guidelines is unknown. Even under the most conservative assumptions in the memorandum (i.e., that applying Blakely to the Guidelines does not increase the trial rate and that all guilty plea cases validly resolve Blakely issues), however, the data still suggest that 65% of the federal criminal cases that go to trial will pose Blakely issues. Despite the limitations of the document, the underlying data may prove helpful to the Court in assessing the impact of applying Blakely to the Guidelines.

I am very pleased to learn that the SG now wants the Supreme Court to see the US Sentencing Commission's memo, and I am also very pleased to learn that I can receive a copy of the memo upon request. And, if anyone official at the USSC is reading, please consider this post a formal request for the three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath (though I might have thought this prior post entitled "Please, please share your data USSC" should have reasonably been understood as a sufficient request).

Yet, as is always the case, questions abound:

Why didn't the US Sentencing Commission, supposedly an independent judicial branch agency, submit this memo directly to the Supreme Court with its own amicus brief (or, better still, a month earlier when the Supreme Court was considering a set of Blakely-related cert. petitions)?

Why won't the USSC, which is now representing that this memo is a public document, post this memo on its website?

Has the USSC made this information available to all — or any — lower federal court judges who have been considering Blakely cases?

Will the defense team in Booker and Fanfan have an opportunity to file a "reply letter" in order to provide its view of what should be drawn from the USSC's memo?
Download sg_booker_lodging_letter.pdf

UPDATE: Right before I have to leave for the airport, I got a copy of the aforementioned USSC memo from a friend of the blog. Here it is:
Download ussc_estimate_of_impact1_memo_form.doc

October 7, 2004 at 10:30 AM | Permalink


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So... we are talking about possibly impacting 65% of the 3% of cases that are tried based on pre-Feeney amendment data?? It sure doesn't sound to me like the sky is falling.

Posted by: Non-Lawyer | Oct 7, 2004 11:00:31 AM

I am a wife of an innocent man who is a victim of this sentencing catastrophe. My husband was brought into a conspiracy of about 30 people both domestic and international. He and only two other men went to court to prove their innocence. They prosecutors told him that if he went to court they where going to ask for an enhancement in his sentencing. During the trial the judge would not let the defense hardly defend their case but allowed the prosecutors all privileges. My husband was not tried separately. He was tried with the two other defendants and all but maybe one short day of a week trial was he even included in this presentation before a jury. The hear say witnesses told two different stories and that really didn't make since. I spoke with one attorney afterwards that had set in on the case the first few days and told me that he didn't see how they even where able to have a case to present in court in the first place. We had every bit of proof on paper and witnesses to show that my husband did not have a part of this conspiracy. During the trial my husbands sixth amendment was violated and our attorney Mr. John Freisell repeatedly asked for a mistrial and The Honorable Judge Harmon denied it several times and told him she was not going to grant it to him and he will have to take it up with the fifth circuit. The jury was not correctly instructed before they went to decide their verdict. The leader of this conspiracy pleaded guilty and got a maximum of 8 years and a $250,000.00 fine. Most of the rest of the defendants on this case pleaded out and are walking the streets. Please look into this case my husband is looking at life in prison. And he is the only one that has no part of this conspiracy. Please we need your help I have been sending out for help and no one will respond. After the trial another attorney looked and my husband and said with tears in his eyes and with shock in his voice and said "Mr. Ginns I just want to shake your hand because I have just watched you get ripped apart by this court and it is obvious that you did not have any reason to be apart of this trial or conspiracy. Also after the trial was over ABC labeled my husband along with two other men as running the largest ecstasy ring in Houston. Please don't turn me away I am begging for your help. We have 3 young beautiful kids who are ages know 5, 8, 8. They including myself miss him very much and he deserves to be home with his family. But these children may never see their father again. I have had to put one of our sons in therapy because of all of this. Please I beg of you help us. It is in Houston, Texas; Case #02577, Defendant 18, Ronnie Lee Ginns; inmate #14312179; Federal Court House (Southern District of Texas) He is in the Federal Detention Center on Texas Avenue. Please help us. I am desperate. Thank you for taking time out of your busy schedules to read this; please don't ignore this cry for help. There are multiple lives at stake. Sincerely, Shalee Ginns, P.S. I apologize for the miss spells I wrote this in a hurry and did not have time to go back over it. I am at work and try to fit this in between working and taking care of the house and our kids.

Posted by: Leigh | Oct 8, 2004 2:00:50 PM

My name is Alwin L. Farr. I've been a legal investigator for the past 38 years; and BLAKELY vs. WASHINGTON certainly caught my eye. Six years ago I took up a 1986 "cold" case known as U.S.A. v. STELLA M. NICKELL. She was (I believe wrongfully) convicted of indoctrinating Excedrin capsules with cyanide. She was the first person to be convicted in federal court of product tampering. After many hundreds of hours of investigation I am convinced of her innocence. Kindly take a peek at my website, where you will find her last 2245/55 motion/s and a host of evidentiary exhibits. Website: http://www.find-em.com

BLAKELY vs. WASHINGTON is at the forefront of my mind right now, in that I believe the possibility of how Ms. Nickell's was sentenced (a total of 90 years) might well fall squarely into the middle of the Blakely argument.

All of my time and expenses have been provided on a pro bono basis. Ms. Nickell has given me power of attorney to hire and/or enlist the aid of anyone able to assist with any portion of her case.

Please feel free to contact me at your convenience. All my contact data is incorporated in the web site.

Thank you.

Alwin L. Farr

Posted by: Alwin L. Farr | Nov 8, 2004 11:41:19 PM

I too am a wife with a husband who is facing twenty five years of his life in prison simply because he trusted the justice system to believe if he took a plea it would give him only ten years. My husband was convinced to opp trail in trusting if he accepted a plea with the government it would be easy on his family. Not true they went over the plea and enhanced my husband case and the judge gave him twenty-five years with fees attached. I am seeking advice of how to presue the aid of my family. Thanking you in advance.

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