The SG's chaos strategy

I have suggested here and here that the government's proposed remedy, if Blakely applies to the federal guidelines, seems likely to cause far more chaos than a ruling that the federal guidelines are fully severable. A recent district court decision, US v. McBride, 2004 U.S. Dist. LEXIS 19558 (D. Kan. Sept. 28, 2004), confirms some of my views on this important issue.

In McBride, US District Judge Julie A. Robinson, in addition to writing a thoughtful opinion which details the state of Blakely in the federal courts, carefully and effectively explains how the defendant's sentence would be unchanged even if Blakely applies to the federal system.

First, Judge Robinson explains that the defendant's admissions and the prior conviction exception mean that "even if Blakely extends to the federal sentencing guidelines, this Court can apply the career offender guideline without violating the defendant's Sixth Amendment rights." Second, Judge Robinson explains that, though a Blakely-implicated and factually-disputed gun enhancement was arguably applicable, "whether or not the gun enhancement is applied, application of the career offender guideline results in an increase to Level 34" in the determination of the defendant's offense level.

In other words, if Blakely applies to the guidelines and the guidelines are fully severable, McBride gets no "sentencing windfall" and apparently would have no sentencing issues to appeal. But, the government's position is that the guidelines become completely inoperative and wholly advisory in cases with Blakely factors; that would entail in McBride an initial (appealable?) issue as to whether McBride is or is not a "Blakely case." And if qualifying as a "Blakely case," then the guidelines would be completely inoperative and wholly advisory, and defendant McBride could then argue for a sentence lower — perhaps much lower — than the nearly 22 years he received for his drug offense.

Notably, in an effort to cover all her bases, Judge Robinson did close her McBride opinion by stating: "And, if the federal sentencing guidelines were declared facially invalid, in imposing a sentence under the indeterminate regime predating the Sentence Reform Act, this Court would impose the very sentence it imposes now." This statement might readily lead one to conclude that McBride would get the exact same sentence under the government's theory of severability.

However, under the government's severability theory, I believe McBride would now have a lot of appealable issues: (1) McBride might be able to object (and appeal) that, as a matter of due process, he should have had an opportunity to present evidence on a variety of "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing; (2) McBride could object (and appeal) that Judge Robinson never explained why a 22-year sentence for a relatively minor drug offense constituted a "sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act (which, under the government 's theory, becomes the controlling legal standard for the imposition of sentences under 18 USC 3553(a)).

In the end, I believe the SG's lawyers are all much too smart not to see the many flaws and headaches in the government's own severability arguments. I am now of the belief that the government is simply trying to make the post-Blakely world of federal sentencing seem extremely chaotic in the hope that some member of the Blakely majority might become afraid to apply Blakely to the federal system.