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November 30, 2004

Gauging the impact of delay and uncertainty

I am trying not to be grumpy about having to continue to wait for a ruling in Booker and Fanfan.  After all, the Supreme Court is obviously hard at work, as evidenced by the big arguments yesterday in Ashcroft v. Raich, the medical marijuana/federalism case (lots of details here and here), and also by the (civil law) opinion issued today with five Justices writing.

Nevertheless, I might have a hard time avoiding grumpiness if I was a judge, lawyer or defendant trying to move forward with my docket or my life at this time of great sentencing uncertainty.  The issues in Booker and Fanfan have been in stark relief for nearly five months since Judge Cassell in Croxford and Judge Goodwin in Shambin set out the Blakely basics for federal sentencing.  And many federal circuits weighed in with major opinions within weeks of Blakely (e.g., the 7th Circuit heard argument and ruled in Booker only two weeks after Blakely, the 2d Circuit issued its in banc certification ruling only a few days later, and four other circuits had at least partially weighed on Blakely before the end of July).

Of course, getting Booker/Fanfan and federal sentencing done right is much more important than getting it done fast (which is a useful lesson for Congress when it considers responses to Booker and Fanfan).  Thus, the Court should take whatever time it needs to issue a great opinion.  But, with so many federal cases likely on hold and now backed up awaiting Booker and Fanfan (as noted here and here), not to mention all the states also looking for more Blakely guidance ASAP, I suspect that the continued delay is having a profound impact on the administration of criminal justice throughout the country. 

I am hopeful that the US Sentencing Commission might soon release the data it has about post-Blakely case processing, which could provide a clearer picture of where matters stand while we all wait.  But in the meantime, perhaps readers might use the comments to report on the impact of the continued delay and uncertainty.

November 30, 2004 at 11:49 AM | Permalink


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I am trying to ascertain whether or not the eagerly anticipated Blakely ruling will have an impact on federal sentences that have already been handed down. I.E. someone who is currently serving a sentence for a nonviolent offense in a federal prison whose sentence included enhancements. Any information would be greatly appreciated. Thank you, Jessica

Posted by: Jessica | Nov 30, 2004 12:10:30 PM

Jessica, it sounds like you have a personal stake in the outcome (e.g., a friend or relative serving a sentence that included enhancements). Whether that person would get any relief from a favorable Booker/Fanfan decision depends on a lot of factors you haven't supplied, such as whether his conviction is final (i.e., all opportunities for appeal are exhausted), whether he had a plea agreement, whether he filed timely objections to the enhancements, and so forth.

Posted by: Marc Shepherd | Nov 30, 2004 2:40:21 PM

Here's an impact I haven't heard discussed yet.

A client had been awaiting sentencing that was originally scheduled for the Monday after Blakely was issued. He showed up for two subsequent adjourned sentencing dates, ready to do his time. As of last week, it appears he's finally given up waiting -- a warrant has been issued.

Another client died of a massive coronary some two months after sentencing was adjourned post-Blakely. I know he wasn't healthy, but I can't help but think that the long, uncertain wait for sentencing added to the stress.

Posted by: Brian Kinstler | Nov 30, 2004 4:59:52 PM

But, just to amplify on what Marc said, if the conviction is "final" I think most people would say the person you know will have a pretty tough time taking advantage of a favorable Supreme Court ruling on this issue, especially if the conviction became final before the Court decided a case called "Apprendi" in 2000. This isn't meant to be a conclusive opinion, but one to help you determine whether to get your hopes up or not. Despite all this, if and when a good decision comes down, you should definitely speak to competent criminal counsel or post another note here and let people like us give you some basic guidance.

Posted by: Alex E. | Nov 30, 2004 5:01:04 PM

I conferred with a friend of mine who is an attorney, practicing primarily in federal work. He is a former prosecutor.

If I understood him correctly, an appeal can be done as follows:

1 year from latest of:

a. date judgment becomes final (date you lose appeal)
b. date impediment created by USA is removed
c. date USSC recognizes a new right and makes it retroactive
d. date from which facts or claims that could have been discovered through exercise of due diligence.

Basically it is one year from date of sentence if not appealed or one year from date appeal is turned down.

If anyone has a correction to the above, let me know and I'll share it.

If timing is right, many inmates are doing 2255s. (Although I was advised by someone in probation that there are relatively few sentences with relevant conduct enhancements.) And this blog gave a relatively low number also. Not sure if that is accurate. I have been hearing many horror stories since visiting at one of the federal facilities.

I hope the ruling is favorable and allows those currently under appeal some relief. Our appeal was timed perfectly, being filed right after Blakely came down, so it was included.

Our enhancements totaled over half the sentence (46 out of 87 months).

Of course, who knows how quickly Congress will jump in to block the major changes needed in the SGs.

Good luck, Jessica.

Posted by: Shelly | Nov 30, 2004 5:34:40 PM

Alex, yes you're correct. We're actually in the middle of planning a "2255" at the eleventh circuit.Unlike many incarcerated filers, we have the privilege of working with a law professor. The 2255 is actually a habeas relief or post-conviction. It's a motion under 28 USC, Section 2255.It must be filed at the district court that sentenced you and has to be filed within one year of the final decision on direct appeal (the 'first' appeal, filed by lawyer or convicted person). Why some of us are a bit excited, I think, is because the rules specifically say that the new petition has to raise newly discovered evidence or a retroactive change in the law /or a new legal principle (that meets the test of Teague V Lane).So these new cases are good stuff to people like us! IF your petition is denied, then you cannot appeal unless you get a certificate of appealability from the court. We're trying to be clever, and patient - since the 11th circuit doesn't seem to be very sympathetic .
A little background about "us"...
Our son was arrested at 22, charged with drug conspiracy (3 counts). An older (51yrs old)co- defendant in the alleged conspiracy offered testimony & our son's (expensive-so of course we sold the house and cars to pay his fee) defense attorney listened to the USA telling him that our son would be "buried" under sentencing guidelines and a prior marijuana conviction as a juvenile with a violation of juvenile probation (it turned into the violation being the impetus for the court to refile charges and our son advised by the lawyer to accept a plea of guilty as an adult to avoid lengthy jail time). So, to make a long story short, in the new federal case our attorney again "plea bargained" ...and saved the taxpayers x amount of dollars. The judge was bound and gave our son 188 months (USA pushed for and got the PSI struck down, and our son listed as a "career offender" with his levels doubled...108 months under the guidelines now went to 188-244 months). The lawyer was ordered by the magistrate to represent him free of charge on appeal, so the lawyer filed an Ander's brief (no more money! of course he filed an Ander's brief). Our son, with the help of a jailhouse lawyer filed a motion to strike the Ander's brief, and 11th circuit denied it. We expected that. So, now, one more chance.(post Blakely,Fanfan,Booker) That's why I read the blogs ( i really love this one, Professor is so fair in his presentations - no slants or spins). So, wish us luck!
Mary, a mom

Posted by: Mary | Nov 30, 2004 7:15:41 PM


A few thoughts on your post. First, there's usually an extra three months added to the date a Court of Appeals denies an appeal (to account for the time one could have applied for certiorari to the Supreme Court). So, there is usually one year and three months to file a 2255.

Second, even if one is within that time period, it doesn't necessarily mean one can take advantage of cases like Booker and Fanfan (assuming they're favorable). Filing a timely 2255 after an appeal has been denied isn't the same as having a case still on direct appeal when a good Supreme Court case comes out. It's certainly better than trying to file after the one-year deadline has elapsed, but maybe not much. Also, there are tough restrictions on filing a second 2255 petition if one's already been decided.

All this means that people really need skilled advice before getting their hopes up or dashed. Except for those who objected at the trial level and whose appeals are still pending, all of this can be very technical and daunting with many traps for the unwary. So, everyone should certainly try for relief no matter what the odds but some may not prevail no matter how unjust the current sentence.

Posted by: Alex E. | Nov 30, 2004 7:24:14 PM


The best news is that you're working with a law professor. I hope you have a great one like Doug Berman (yes, I know he reads these comments . . . .). Good luck and keep your fingers crossed that the decisions, if they're good ones, are well reasoned to help keep Congress from undoing whatever good may come of all this.


Posted by: Alex E. | Nov 30, 2004 7:33:32 PM

What if you waived your right to a 2255 in the plea agreement? I'm asking because my husband is in a federal prison. He's heard he can file a 2241 or something like that. Can someone tell me what that is & is there any other motions you can file? Retroactivity seems to be out of the question and I'm looking for any hope possible. He's just completed his 1 yr on a 16 yr nonviolent drug offense. Thank you.

Posted by: Kim | Nov 30, 2004 9:33:12 PM

Thank you to those who replied to my question. I see that I should have supplied more information though in retrospect. He was sentenced in August of this year to 41 months. The base score for the offense was 17 according to the PSI. Three additional points were added but what exactly they were for is not clear. I believe for the amount of the money that is in question. The DA in the case recommended that he be sentenced at the low end of the guidelines, but the judge gave him the maximum sentence possible within the guidlines. He is also eligible for a rule 35 in association with another case, but his lawyer has not requestd that yet because he feels that it is better to wait a little while. I don't know if Blakely will do anything to help us or not, any feedback is greatly appreciated. Jessica

Posted by: Jessica | Dec 2, 2004 4:00:42 PM

I'm a concerned relative. I would like to know how I would get some help for a person who was handed down a "harsh/unjust sentence". Thank you.

Posted by: Joan | Sep 24, 2005 10:22:22 AM

I am engaged to someone that was recently convicted on drug charges. During his sentencing the Federal prosecutor said that he was eliglible for a rule 35 reduction. My question is how long does he have to wait to be brought back to court for this reduction. He was setenced Sept 16. 2004

Posted by: Tara | Oct 25, 2006 9:33:08 PM

I am a defendant that has been waiting to be sentenced for three years. I pleaded guilty to one count and received a downward departure in my plea. The pleas was agreed to prior to the supreme court ruling about the sentencing guidelines.

The US Attorney's office (Norther District of IL) filed a motion asking the judge to withhold sentencing until I testified for the government.

I testified, the government was happy; but the trial ended in a mistrial. Ultimately the judge convinced the government to drop the charges against the person I testified against (this happened almost 10 months ago).

As soon as the government dropped the case against the person I testified against, my attorney -- at my request -- request that sentencing proceed as soon as possible. I met with the probation department and started the process. The probation office became frustrated that the US Attorney hadn't filed for a sentencing data so that's all been put on hold.

This is a white-collar crime.

My question, is simple how long can this go on? My attorney thinks the more time the better.

Looking for a second opinion.


Posted by: John | Oct 27, 2006 10:26:55 PM

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