« Back to the capital news desk | Main | Proof that no Blakely news is news »

December 13, 2004

Advice from a former USSC Commissioner

At last month's hearing before the US Sentencing Commission (detailed here), Professor (and former Commissioner) Michael Goldsmith advocated that, if Blakely is applied to the federal system, the Commission ought to move toward the development of simplified, Blakely-ized guidelines.  (The battle over what might happen if/when Blakely is applied to the federal system is discussed a bit in this post and this post.)

Professor Goldsmith has now finished drafting, for publication in a coming issue of the Federal Sentencing Reporter, his "five step approach" to preserving the constitutionality of federal sentencing guidelines.   You can download Professor Goldsmith's thoughtful essay, in which he suggests his proposal "would both satisfy the demands of Blakely and best achieve the noble goals of the Sentencing Reform Act," here:

Download goldsmith_on_fsg.doc

December 13, 2004 at 05:42 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Advice from a former USSC Commissioner:


As I was watching CNN coverage of Scott Peterson this afternoon, they announced that the Chief Justice is not going to participate in any decisions from October unless there is a tie. They said he will participate in the upcoming session. If this is true, how does that affect Booker/Fanfan?

Posted by: Fred | Dec 13, 2004 11:26:33 PM

Once again, I feel the need to ask for clarification. Reading the essay by Professor Goldsmith, I find myself alarmed. What has happened to the presumption of innocence, once touted as a cornerstone of our justice system? It seems unconsionable that a defendent must be expected to prove his innocence! Why would we then ask him to argue mitigating factors during trial? Isn't that paramount to an admission of guilt? It's already horrendous that an innocent man who chooses to testify in his own defense may be sentenced to more time because the PSR (read prosecutor) claims the jury obviously doesn't believe him, therefore he must have lied and that's purjury and that's obstruction of justice. Unthinkable! As a lay person, I do NOT understand why our system would encourage yet more of this. The government already is not required to play by the same rules. We effectively treat anyone indicted as if they are already guilty. Our nation condemns other countries for this very type of behavior. Booker/Fanfan seems to me, to be a first step in reclaiming our constitutional rights as the framers intended ... as we teach our children in school. If this is not to be so, then we must change the way we teach our citizens about the constitution, so they have an accurate picture of the significant changes it has undergone, and how very little protection it affords us.

Posted by: Cathy | Dec 13, 2004 11:55:44 PM


We at Center for Equal Rights ("CFER") have our own view of what the Booker/Fanfan opinions will hold. For the reasons explained hereafter, we predict the opinions will provide the following:

1) Initially, it is our position that the decision in Blakely merely clarified that Apprendi was meant to apply to the United States Sentencing Guidelines and not exclusively to criminal statutes. (The term "statutory maximum" is also meant to apply to the guideline maximum" penalty).

2) The reasoning in paragraph 1 (above) will open a flood gate of relief for those people sentenced under an erroneous view of the Sentencing Guidelines after Apprendi issued, that being June 26, 2000.

3) The reasoning in paragraph 2 is supported by the sound maxim that “when th[e Supreme] Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 313, n. 12 (1994). We consider the Guidelines as having the force and effect of statutes.

4) Because Blakely merely clarifies that Apprendi applied to the Guidelines June 26, 2000, we believe that there is no Teague v. Lane, 489 U.S. 288 (1989) problem. Thus the decision in Blakely, did not change the law, it merely explained what Apprendi had meant since it was decided.

5) The Supreme Court will hold that the Guidelines are severable. Thus, the guidelines initial base offense level must be supported by a finding of fact "either admitted" or determined "by a jury beyond a reasonable doubt." This way the Court will save the Guidelines.

6) Other enhancements must be the product of the same burden of proof as in paragraph 5, but they must be "charged in the indictment" to be considered for submission in the sentencing process.

7) The "prior conviction exception" will remain undisturbed, not moved by the Apprendi/Blakely holding. Thus, 4B1.1-4 enhancements are not implicated.

In conclusion, the Guidelines will not be held wholly unconstitutional, but rather subject to greater standards of proof, and severable where appropriate as judged in each individual case. There will, of course, be reform and new commentary. All people sentenced after Apprendi issued will eventually be entitled to some relief (if a valid Apprendi-error even exists). To relieve the courts of thousands of 2255 motions and collateral challenges, the Commission will most likely announce many 1B1.10 Amendments permitting relief under 18 USC Sec. 3582(c).

We welcome your comments or suggestions at CFER:
[email protected].

Center for Equal Rights, Inc.
Ronald L. Humphreys, Director

Posted by: Center for Equal Rights | Dec 14, 2004 12:13:47 AM

From your mouth to God's ear.

Posted by: bob | Dec 14, 2004 12:41:24 AM

Fred asked how the news concerning the Chief Justice would affect Booker/Fanfan. My view is: not very much at all.

The Court announced that the Chief would not participate in decisions from the November session unless his vote were needed to resolve a 4-4 tie. Booker/Fanfan was argued in October, and the Chief was on the bench at that time.

Moreover, most Booker/Fanfan prognosticators do not expect a 4-4 split, in which case the Chief's vote would not be needed to break a tie.

Posted by: Marc Shepherd | Dec 14, 2004 8:11:42 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB