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October 12, 2004

The Minnesota courts officially address Blakely

It is a big Blakely day in the states. Following the important decisions out of New Jersey (noted here), we also today get noteworthy rulings from Minnesota.

For quite some time, the Minnesota Courts of Appeals have been just remanding cases raising Blakely issues, as noted here (and see also today's State v. Conley, 2004 WL 2283421, (Minn. App. Oct. 12, 2004). Of course, these decision have been against the backdrop of the reports by the Minnesota Sentencing Guidelines Commission (available here and here) which concede that there are Blakely-problematic elements of state law.

Today, officially, the Minnesota Court of Appeals holds, in two published decisions, that Blakely invalidates upward departures and sentences under Minnesota's "career offender" statute. The decisions in Minnesota v. Conger, A03-1771 (Minn. App. Oct. 12, 2004), and Minnesota v. Mitchell, A03-110 (Minn. App. Oct. 12, 2004), are both quite interesting reads, especially because the state apparently has been arguing that Blakely is inapplicable in Minnesota because the "Minnesota sentencing guidelines are not mandatory but merely 'advisory to the district court.'" In Conger, the court reject this claim in the following passage:

[E]ven though the sentencing guidelines are advisory to the district court, and a person convicted of a felony does not have a right to receive the presumptive, fixed sentence established by the Sentencing Guidelines Commission for that person's offense, a district court that does not impose the presumptive, fixed sentence is required to make findings of fact that support the court's reasons for departing from the presumptive sentence. This means that under the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.

October 12, 2004 at 05:35 PM | Permalink


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Am I mistaking or is the Eleventh Circuit still negating anything Blakely related?

Posted by: Kaley | Oct 13, 2004 9:40:51 AM

I am an attorney with the Federal Defenders of San Diego. I do not know if criminal history has been discussed on your cite, but the Mitchell case reinforces my belief that all criminal history points under the Federal Sentencing Guidelines violate Blakely. Here is the basic argument: Under the Guidelines points are given for "prior sentences." USSG 4A1.1(a)-(c). "The term ‘prior sentence’ means any sentence previously imposed upon adjudication of guilt, . . . for conduct not part of the instant offense." See USSG § 4A1.2(a)(1). “Conduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of § 1B1.3 (Relevant Conduct)” USSG § 4A1.2, comment. (n.1). The factual determination whether the instant offense is relevant conduct to the prior offense appears remarkably similar to the factual determination of whether the prior convictions form a pattern of criminal conduct. Significantly, each are based on facts other than the fact of the prior conviction.
This argument even fits with the offense/offender distinction. Based on the way prior sentence is defined -- conduct not part of the instant offense -- the Sentencing Commission has changed what would normally be offender conduct into offense conduct.
Has anyone been successful with this argument? The only counter argument I have incountered is that Almendarez-Torres creates a general recidivist exception to Apprendi/Blakely -- an argument Mitchell dismisses.

Posted by: Vince Brunkow | Oct 13, 2004 2:49:05 PM

I am a defense lawyer in Minnesota and I have a client who is on his 5th DWI in 10 years. His 4th one was a felony and he was given a stayed 42 month sentence... before he was convicted on this charge he got his 5th one. It is my understanding that they cannot use the 4th one against him in anyway since he had not even made a court appearance and had already got the 5th one. That makes this under the Minnesota Guidelines which they have verified a stayed sentence, however the PSI and prosecuting attorney are recommending an upward dispositional departure. I am fairly new with the DWI laws and was wondering if you could shed some light to what my clients rights are and please email me as I do not know how to get around your site that well. Thankyou very much for your time and if you need more info I would be glad to share what I can with you. Ms Spence

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