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July 31, 2004

District Court round-up

With all the appellate court fireworks recently (and more to come next week with an expected Supreme Court cert. grant and an en banc hearing in the Fourth Circuit), it is now easy for district court decisions to get lost amidst all the activities. But there is still a steady stream of important district court rulings which are helping to define the look of, and frame debates in, the post-Blakely world. Though this quick summary only gives some highlights, it is a reminder of the rich and interesting work being done by district courts during this post-Blakely period of uncertainty.

US v. Hankins, 2004 WL 1690128 (D. Mont. July 29, 2004), is a strange decision because Montana Chief US District Judge Donald Molloy comprehensively discusses pre- and (some) post-Blakely caselaw, but he does not mention the Ninth Circuit's decision in Ameline (which I believe is controlling precedent he must follow). I am inclined to speculate that Judge Molloy completed this opinion as early as July 10, though it carries a date of July 29; perhaps decisions from Big Sky country get filed very slowly. The Hankins decision is also noteworthy, and a bit peculiar, because of how Judge Molloy splits the Blakely baby. He concludes:

If the facts that adjust a base offense level upward are admitted to by the defendant, the Sixth Amendment is not offended. If the facts that adjust a base offense level upward are not elements of a separate crime, can be fairly inferred from the facts admitted to by the defendant, and do not raise the upper guideline range above the maximum sentence allowed by the statute establishing the offense, in my view a judge may find the facts by a preponderance of the evidence without running afoul of the Sixth Amendment. On the other hand, if the facts adjusting a base offense level upward are traditionally elements of a separate crime, and are not admitted to by the defendant, nor stated by the government in its offer of proof and undisputed by the defendant, nor fairly inferred from those admitted-to facts, I understand Blakely to hold that the Sixth Amendment requires those facts to be found by a jury.

US v. Lauersen, 2004 U.S. Dist. LEXIS 14491 (SDNY July 29, 2004), is interesting because District Judge William Pauley confronts Blakely in the context of a bail motion. Here are the highlights:

Lauersen's contention that he is not a flight risk rests on the assumption that Blakely invalidates judicial factfinding for sentencing enhancements under the Guidelines. From that platform, Lauersen contends he has completed any term of imprisonment that can be imposed on him at resentencing because Blakely caps his Guidelines sentence at 21 months. Thus, he asserts that the risk of flight has dissolved. ...
If Blakely applies to the federal Guidelines, then it represents a tectonic shift in sentencing. However, the Supreme Court noted that "the Federal Guidelines are not before us, and we express no opinion on them" [and] the Second Circuit sitting en banc certified questions to the Supreme Court concerning the same issues implicated by Lauersen's application....
This Court declines to add to the cacophony given the Second Circuit's recognition that the law is uncertain. If Lauersen's prognostication about the reach of Blakely is correct, it does not ineluctably follow that his term of imprisonment will be shorter than the prison time he has already served or will have served by the time of resentencing. If his prediction about Blakely's reach is mistaken, then Lauersen faces the prospect of a prison term greater than the 87 month term he received in October 2001....
The Guidelines are constitutional until the Supreme Court says they are not. If the Supreme Court or the Second Circuit address the issue, Lauersen may petition this Court immediately for bail.

US v. Gibson, No, 1:04-cr-12 (D. Vt. July 30, 2004), is a decision relayed by a researcher who reports that District Judge J. Garvan Murtha issued the following ruling:

After careful consideration, the Court concludes that the constitutional precepts outlined in Blakely are equally applicable to the U.S.S.G. and joins the legion of courts that have concluded Blakely renders certain applications of the Guidelines unconstitutional.... In doing so, however, the Court rejects the notion that if Blakely is applicable to the Guidelines the entire system of the Guidelines must fall.... Instead, the Court finds the best approach is to continue to apply the Guidelines to the extent they can be applied in a manner consistent with the Sixth Amendment. Accordingly, absent a defendant's consent to sentencing under the Guidelines, the Court will not consider any enhancement based on facts not admitted by the defendant or found by a jury.

US v. Carter, 2004 U.S.Dist. LEXIS 14433 (C.D. Ill. July 23, 2004), has apparently been "in the books" for a week, but just recently appeared on-line. In Carter, District Judge Michael McCuskey concludes that the federal guidelines are unconstitutional in their entirety:

After reviewing the recent flurry of caselaw on the issues raised by Blakely, this court finds that the US Sentencing Guidelines are not severable. In reaching this conclusion, this court is persuaded by the reasoning of the court in United States v. Croxford, 2004 WL 1521560 (D. Utah July 7, 2004). This court believes that severing the Guidelines and applying only portions of the sentencing scheme would contravene the goals of Congress and would distort the intended effect of the Guidelines.

July 31, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

I'm going to Graceland...

Proving that Tennessee deserves the nickname "The Volunteer State," a friend from Tennessee was kind enough to volunteer some helpful information concerning that state's reaction to Blakely. As noted before, Tennessee's Governor has already created a Task Force on the Use of Enhancement Factors in Criminal Sentencing (background here), and I was pleased to learn that the Task Force seems to have a balanced membership, including many judges, prosecutors and defense attorneys (and three very well-regarded law professors as ex officio members). It also seems the Task Force has set a robust schedule and plans to have a report or a proposal before the end of this year.

The history of sentencing reform is Tennessee is quite dynamic, and the pre-Blakely story is well-told here. In 1985, the legislature created the Tennessee Sentencing Commission which helped produce the Tennessee Sentencing Reform Act. That Act became effective on November 1, 1989 and still governs Tennessee sentencing. But the Tennessee Sentencing Commission is no longer with us: the state's legislature abolished the Commission in 1995. And yet, Judge Barbara Haynes, who once served Chair of the Tennessee Sentencing Commission, is now serving a Chair of the Governor's Task Force and apparently others involve with the Task Force formerly were involved with the Tennessee Sentencing Commission.

Even before the Task Force gets started in earnest, official and unofficial voices are sharing wisdom about what Blakely means for Tennessee sentencing. Specifically, the Office of the Tennessee Attorney General has issued a fascinating four-page memorandum presenting "initial impressions ... as to Blakely's effects on Tennessee's statutory sentencing scheme." The memo speaks to a number of universally important topics, such as authority for utilizing sentencing juries, the impact of Blakely on consecutive sentencing, and retroactivity. Covering similar ground in a fuller way from a different perspective, attorney David L. Raybin has completed an article to be published the August 2004 issue of the Tennessee Bar Journal entitled "What is the Impact of Blakely v. Washington on Sentencing in Tennessee." I am pleased to be able to provide access to both these documents here:
Download tenn_ag_advice_to_das_7.8.08.pdf
Download what_is_the_impact_of_blakely_v. Washington on Sentencing in Tennessee.pdf

Now I wonder what Elvis (or even Paul Simon) would think about Blakely?

July 31, 2004 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2) | TrackBack

A New USSC Chair

Interestingly, as this AP story reports, President Bush yesterday announced his intention to use his recess appointment power to name Southern District of Texas US District Judge Ricardo Hinojosa as the new chair of the US Sentencing Commission. This is just a expected promotion, rather than an appointment, since Judge Hinojosa already serves a member of the USSC (details here along with all the Commissioners' bios), and the President had previously nominated Judge Hinojosa for this top spot.

Notably, in their recent Senate testimony, Commissioners John Steer and William Sessions stressed that "the Sentencing Commission remains in critical need of a full slate of Commissioners." Perhaps President Bush should consider making a true recess appointment, as well. As I suggested here, there is a lot more that I think the USSC could and should be doing.

July 31, 2004 in Blakely Commentary and News, Who Sentences | Permalink | Comments (2) | TrackBack

Blakely media coverage

Especially if (when?) the Supreme Court grants cert. on a federal Blakely case this Monday, we can expect even more media coverage of the law, policies and practices of modern sentencing systems. I am hopeful that this media coverage will facilitate serious reexamination of existing federal and state sentencing systems by both the public and politicians (as has already been recommended by the American Bar Association's Justice Kennedy Commission).

But the complicated story of sentencing reform, and Blakely's complicated and still developing chapter in that story, may not always be accurately discussed in the media. Proof comes from this editorial in the Houston Chronicle: though the headline and main themes are astute, I count at least five erroneous statements or implications in the discussion of the law.

Fortunately, sophisticated legal reporters can tell compelling Blakely stories that accurately capture all the legal nuances. The Blakely coverage has been well done in major papers such as the New York Times, the Washington Post, the Boston Globe and the Wall Street Journal (I am biased here), and some smaller papers such as the Knoxville News Sentinel deserve credit for being "ahead of the curve" on the Blakely story.

Continuing its fine Blakely work, over at law.com you can now find this extended article discussing the different post-Blakely federal cases the Supreme Court has been asked to review. The article insightfully notes that the litigants and others are "closely watching which cases the justices decide to review, and how quickly, as a sign of the legendary clout of the solicitor general's office in helping the Court set its agenda."

In addition, I know that NPR is airing on today's Weekend Edition a thoughtful piece by Wendy Kaufman entitled "Ruling on Sentencing Guidelines Creating 'Legal Anarchy.'"
UPDATE: The NPR story, which one of my favorite readers calls a "great explanation of the Blakely issue for bright laypeople," is now available on-line at this link. Also, I discovered that Jonathan Scogin over at Criminal Appeal has quite effectively summarized the state of criminal law here.

July 31, 2004 in Blakely Commentary and News | Permalink | Comments (3) | TrackBack

July 30, 2004

Will state sentencing commissions do better?

Because no state sentencing system is (yet) experiencing the turmoil now transpiring in the federal sentencing system (details here), it is understandable (and even perhaps defensible) that state sentencing commissions have not yet been active participants in the discussion of sentencing reforms after Blakely. Nevertheless, I visited today the home pages of most of the state sentencing commissions and was a bit troubled to find no mention of Blakely on any of the websites except Pennsylvania's (and the brief Pennsylvania discussion of Blakely is now a month old).

I was quite encouraged to see, however, on the website of the New Mexico Sentencing Commission that there are plans in place to discuss Blakely at the upcoming Conference of the National Association of Sentencing Commissions, which is taking place next month in Sante Fe. (For details, including information on how to get an affordable NASC T-shirt, click here.)

I was also pleased to see that the "NASC is setting up an internet page through the US Sentencing Commission for individual states to submit information, documents, recommendations, proposed legislation or reports related to their state's response to Blakely." Here is a link to that page, which currently has only limited information from Kansas, Michigan and Pennsylvania, but valuably seeks "to have each state provide information so it can serve as a clearinghouse of information on the states' responses."

Finally, according to my Blakely calender, at least one state sentencing commission is going to be speaking publicly soon: this Monday, I believe, marks the deadline that Minnesota Governor Tim Pawlenty set for a short-term report from the Minnesota Sentencing Guidelines Commissionon concerning his state's sentencing procedures in the wake of Blakely (background here). I am very eager to see what this well-regarded Commission is going to say (and perhaps not say) about Blakely.

July 30, 2004 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (5) | TrackBack

Wherefore art thou USSC?

A month ago, I was energized by the thought that the Blakely earthquake might provided a unique opportunity for sentencing commissions to play a leading role in reforming sentencing reform (background here). Though I suppose I can still hope, a month later the idea that the US Sentencing Commission would become a leader seems like wishful thinking.

According to the Acting Solicitor General, federal sentencing law is in a state of unprecedented turmoil (details here) in the wake of Blakely. Yet the only Blakely resource the US Sentencing Commission provides on its website is the (now quite dated) written testimony of Commissioners Steer and Sessions before the Senate Judiciary Committee. In that testimony, the Commissioners indicate that the USSC has been "work[ing] intensively with Congress, the Department of Justice, representatives of the federal judiciary, and other interested persons to analyze the impact of the Supreme Court’s decision and help guide the discussion concerning the future of the federal sentencing guidelines system." That sounds great, but I cannot resist trotting out a well-worn political slogan: "Where's the beef?"

The USSC surely is collecting lower court Blakely decisions concerning the federal guidelines; why hasn't the USSC made these decisions publically available in one official location?

The USSC likely has unique insights and opinions about which post-Blakely cases the Supreme Court ought to consider and how the "Questions Presented" ought to be cast; why hasn't the USSC filed an amicus brief with the Court addressing these critical matters?

The USSC likely is analyzing key data about the possible impact of Blakely on past, present and future federal sentences; why hasn't the USSC made any official statements about this important data (while avoiding questionable unofficial statements)?

I am confident that the USSC Commissioners and staff have been hard at work since Blakely was decided, but I am disappointed the USSC has not played a more public and effective role in the on-going dialogue about the future of federal sentencing. Because we are only in the midst of the first chapter of a very long story, there is still plenty of time for the USSC to shine. But it is hard to be encouraged by what we have seen so far, which prompts not just the question where is the USSC, but why?

July 30, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Taking stock of the Blakely world

A number of others are doing a great job this morning taking stock of our ever-changing Blakely world.

Marcia Oddi over at the Indiana Law Blog has this helpful post reviewing the status of Blakely in the Seventh Circuit and in Indiana state courts. Jason Hernandez at the Blakely Blog has this post linking to the helpful California Blakely materials being assembled and posted by the First District Appellate Project, as well as this post spanning the Blakely globe.

And, of special interest for Supreme Court junkies, Lyle Denniston at the SCOTUSBlog has this post reviewing the details of the two cases that defense lawyers hope will be the vehicles for Supreme Court consideration of what Blakely means for federal sentencing.

July 30, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

What should the other circuits do?

With a Supreme Court grant of cert a near certainty, it is tempting to suggest (perhaps even hope) that the sentencing world can take a breather until the High Court decides what Blakely means for the federal guidelines. However, it could be two more months until the Supreme Court even hears argument on a Blakely federal sentencing case, and perhaps at least a few more months before the Supreme Court renders a decision. I doubt that the thousands of federal criminal cases now pending in district and circuit courts can be put completely on hold during this period.

Of course, those circuits which have already weighed in on Blakely have given their district courts interim guidance, although that guidance is sketchy at best everywhere except in the Fifth Circuit where court have been told to continue with business as usual. But what approach should other circuits, including the Fourth and Sixth where en banc arguments are scheduled for the next few weeks, take during this interim period of great uncertainty?

Interestingly, the Second Circuit has recently been taking what I might call a "duck and cover" approach to Blakely issues. For example, in US v. Jasper, 2004 U.S. App. LEXIS 15543 (2d Cir. July 28, 2004), a case involving a challenge to two guidelines enhancements, the Second Circuit in an unpublished disposition explained:

Our Circuit has recently certified to the Supreme Court several questions related to Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004). We will defer consideration of Jasper's sentencing challenge pending resolution of our request for certification. Once that is resolved, we will set a timetable for further briefing, should such briefing be appropriate. All of Jasper's other arguments are unavailing, and we reject them for substantially the same reasons expressed by the district court.

Similarly, in US v. Lenoci, 2004 U.S. App. LEXIS 15530 (2d Cir. July 28, 2004), a case involving a challenge to the federal guidelines' complicated grouping rules, the Second Circuit dropped this slightly comical footnote:
Oral argument was heard in this case on April 2, 2004, nearly three months before the Supreme Court decided Blakely v. Washington. While we bring the grouping issues raised in this case to the attention of the United States Sentencing Commission, we recognize that in light of Blakely, the Commission may be presented with more pressing matters to which it must attend. In this case, the parties have not raised any Blakely issues, nor do we believe that any such issues are immediately apparent. However, out of an abundance of caution, we stay the issuance of the mandate in this case until further direction from the panel. See, e.g., United States v. Penaranda, Nos. 03-1055(L), 03-1062(L), 2004 WL 1551369 (2d Cir. July 12, 2004) (in banc).

This "duck and cover" approach certainly is understandable (though perhaps a bit disturbingly reminiscent of the (in)famous Duck and Cover government film). However, for the sake of litigants and district courts, I am inclined to think that the Second Circuit, and other circuits that have not yet spoken to Blakely issues, should make a definitive ruling about the guidelines' status even though the Supreme Court will soon return to the fray.

The Second Circuit merits, in my view, great praise for initially sending a bold and loud message when it certified Blakely questions to the Supreme Court; but I do not think circuits can or should now completely avoid speaking to what Blakely means for federal sentencing while we all await Supreme Court action. Though the Second Circuit's "punt" made a valuable symbolic point, the failure of the Supreme Court to quickly "run with the ball" now leaves district courts in the Second Circuit and elsewhere adrift. Though district court innovation and experimentation concerning how to apply Blakely in the federal system can be quite valuable, I believe circuit courts should at least endeavor to provide a sound, sensible and consistent framework for that innovation and experimentation.

July 30, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

July 29, 2004


I did not think the Blakely story could move any faster, but the last 36 hours certainly proved me wrong. In a dueling set of briefs filed over the last two days (available here and here), the defendants' counsel and the Acting Solicitor General summarized events in the remarkable post-Blakely federal sentencing world and also marked out some (though not all) of the remarkable post-Blakely federal sentencing battlegrounds.

As effectively detailed in this post by Lyle Denniston at the SCOTUSBlog, the litigants now can get some well-deserved sleep, but the Justices and their staffs may be in for a few restless nights. Insiders have been predicting that the Supreme Court will take action this Monday, August 2, but there are extremely challenging issues the High Court must confront in whatever action it decides to take. There are (at least) four cases competing for the Supreme Court's attention, and also compelling debates over how the "Questions Presented" should be framed. Amazing times.

Though all the briefs merit careful review, I think the SG's "Reply in Support of Motion to Expedite" (posted again here) is the one document to read if you are only going to read one.
Download motion_to_expedite_reply.pdf

July 29, 2004 in Blakely in the Supreme Court | Permalink | Comments (1) | TrackBack

Thesaurus of rhetoric

One reason the Acting Solicitor General's latest filings are so great to read is because of all the different ways the post-Blakely world is discussed. Here's a taste:

Booker/Fanfan Reply Brief
at p.2: "The fragmentation of the law on the most basic questions in federal sentencing presents a compelling case for guidance from this Court, in order to stem a flood tide of contradictory approaches applied in thousands of sentencings — many of which may have to be redone once this Court settles the applicable law."

at p.10: "[A]waiting further percolation in the lower courts is not a luxury that the federal criminal justice system can afford. There is a pressing need for this Court immediately to step in and restore uniformity to federal sentencing — and that need mandates that review be undertaken now, not in the fullness of time."

at p. 14: "The disarray among the lower courts here is also comparable to that in Mistretta, and the disarray is increasing daily."

at p. 15: "[There is a] glaring need for expedited consideration of the issues now. Awaiting the filing of petitions in other cases ... would be to ignore the urgent need for guidance that the lower federal courts have justifiably requested."

at pp. 20-21: "[T]he federal judicial system is in dire need of this Court’s prompt resolution of the issues presented. The defense bar’s caution aside — a caution that coincides with the reduced sentences that many defendants are receiving in the current reign of confusion over Blakely — there is widespread sentiment in the lower federal judiciary that, absent this Court’s expedited intervention, federal sentencing threatens to descend even further into a balkanized set of regimes in which each circuit, if not each individual district court judge, literally makes up the rules as he or she goes along. This chaotic state of affairs cannot stand. It can only be rectified by expeditious action by this Court."

Bijou Opp. Cert. at pp. 5-6: "Blakely has profoundly unsettled the federal criminal justice system and ... there is an urgent need for this Court’s resolution of questions about whether and how Blakely applies to the Guidelines."

Reply on Expedite Motion
at p. 6: "The division of the courts on the question whether Blakely applies to the Guidelines (the first question presented by the petitions) pales in comparison to the profound confusion in the lower courts over the implications for sentencing if it does."

at p. 7: "[D]istrict courts have continued to apply a variety of mutually inconsistent approaches to implementing Blakely"

at p. 8: "In light of the profoundly fractured nature of the lower courts’ holdings, it cannot seriously be maintained that the federal courts have adapted well to Blakely’s teachings."

and here's a fitting finale on p. 10: "If respondents and their amici are correct in their assertion that Blakely will result in the invalidation of the Guidelines irrespective of whether a case involved enhancements based on judicially found facts, every single Guidelines sentence is potentially invalid." (emphasis in original; citation omitted)

July 29, 2004 in Blakely in the Supreme Court | Permalink | Comments (6) | TrackBack

Wasting no time, DOJ replies...

Proving how fast he can move, the Acting Solicitor General, less than 24 hours since the defendants' filings, has now submitted a Reply Brief for the US in the Fanfan and Booker cases. Here are all 21 pages of the reply, as well as a (mercifully brief) "Motion to Exceed the Page Limit," for your reading pleasure (with commentary soon to follow):
Download doj_booker_fanfan_reply_brief_in_support_of_petitions.pdf
Download doj_booker_fanfan_motion_to_exceed_pages.pdf

UPDATE: Lyle Denniston over at the SCOTUSBlog already has a thorough account of the SG's filings here. This post is a reminder that we are really just getting started on what is likely to be a very long Blakely roller-coaster ride.

ADDITIONAL UPDATE: The SG's reply brief is another wonderful read. The legal analysis is impressive and all the counter-punching is very amusing. Of course, in the end this all seems like shadow-boxing: what is unstated in all the briefs is that, as a matter of pure legal doctrine, the vehicles chosen for Supreme Court review probably do not matter very much at all. But, as a matter of case equities and expected public dialogue, the vehicles chosen for Supreme Court review matter a whole lot. The SG principally wants Fanfan because, in my view, the defendant in that case is far less sympathetic than Bijou. Indeed, the NACDL is pushing Bijou because, in my view, it much more starkly highlights the potential injustices of the "old rules."

As I discussed before here, the fact that the Supreme Court used the Rodney King case as its vehicle for discussing departure authority in Koon v. US --- not to mention its troubling decision in US v. Watts, 519 U.S. 148 (1997), to use a summary reversal per curium opinion to approve the use of "acquitted conduct" in federal sentencing, cf. Watts, 519 U.S. at 170 (Kennedy, J., dissenting) --- suggests that SCOTUS clearly cares about how its decisions look in the headlines as well as in the law books. But what exactly that legal realist fact means for these cases is anyone's guess.

STILL FURTHER UPDATE: I have just received the SG's opposition to cert. in Bijou and Pineiro, as well as now the SG's reply brief on the motion to expedite. Here they are:
Download bijou_opp_nina.pdf
Download pineiro_opp_nina.pdf
Download doj_motion_to_expedite_reply.pdf

July 29, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Your morning Blakely fix

As he does so well, Howard Bashman at How Appealing has a collection of today's newspaper articles discussing Blakely here. Though all the articles include interesting Blakely tidbits, especially noteworthy is this article's discussion of the plans of US District Chief Judge G. Patrick Murphy (SD Illinois) to deal with Blakely.

For a more intense Blakely experience, let me highly recommend this memo to all readers, even though it is focused on the application of Blakely in California. Because the memo is written by sentencing judges for sentencing judges, its sections covering "Practical Application of Blakely" are especially interesting. And it is almost comical how many times the memo highlights issues that Blakely raises but does not resolve, which leads the authors to forecast that "appellate courts may disagree on the extent of Blakely's application in California, even as to whether it applies at all."

July 29, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

Slow down, you move too fast...

Lyle Denniston over at SCOTUSBlog has this fine post which astutely suggests that, due to the "new filings in the Supreme Court by criminal defense lawyers, the Court’s informal timetable for acting on the Blakely sequels has been complicated, if not slowed down." Indeed, the defense filings — all of which are great reads and can be accessed here — are a stark testament to the doctrinal rabbit hole down which Blakely has taken the sentencing world. And, though dickering over the right vehicles for considering Blakely's federal impact, the briefs' most important messages are those which urge the High Court to take the time needed to handle these matter properly.

The Booker filings are particularly rich in urging a "deliberate process and unhurried attention." The Booker brief repeatedly identifies flaws in the government's claims and suggests "the government's position is probably confused because it was formulated in haste." And the Booker response to the motion to expedite gives us this particularly choice passage:

The complaint that a few defendants might receive a “sentencing windfall” is insufficient to justify expedited review of this case. For about two decades, defendants have been sentenced to longer terms of imprisonment than the facts found by a jury or admitted in a guilty plea warranted. It is difficult to understand why there is a need for urgency to correct sentences perceived to be unduly lenient when it has taken twenty years to avoid sentences that are unduly harsh.

Though I have vocally urged quick Supreme Court consideration of these issues, I concur in the sentiment that the Court must give itself the time it needs to work through all the complicated issues Blakely raises. As I suggested here, some post-Blakely lower court rulings have been opaque no doubt because they were hurried. (The Sixth Circuit's now-vacated ruling in Montgomery and the Eighth Circuit's ruling in Mooney come immediately to mind.) Indeed, it is hard not to think that the Blakely decision itself was so "messy" because the Court was rushing to complete a large group of important cases as the term dwindled to a close.

Critically, The NACDL brief is especially effective in highlighting how many issues are in play (as well as how many doctrinal trap doors are built into the SG's framing of questions for Supreme Court review). The NACDL brief rightly note that the next Blakely case is necessarily about the Sixth Amendment and the Fifth Amendment, and necessarily about the federal guidelines and the Sentencing Reform Act and Federal Rule of Criminal Procedure 32.

July 29, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

July 28, 2004

Another fascinating Blakely front

Part of what makes Blakely such a big deal is that there seems to be no limit to the arenas and settings in which Blakely issues might arise. We get more evidence of this fact from California today, where in People v. Sykes, a California Court of Appeal had to confront a defendant's claim that, under Blakely, "he was entitled to a jury trial as to those factors which determine whether consecutive sentences may be imposed [because an applicable statute] grants trial courts the authority to impose consecutive sentences" in certain situations. In other words, the defendant in Sykes argued under California law "that the United States Supreme Court’s holding in Blakely requires that a jury, not a judge, find whether the factors which warrant consecutive sentencing are present."

The Court of Appeal ultimately rejects the defendant's claim, saying:

Neither Blakely nor Apprendi purport to create a jury trial right to the determination as to whether to impose consecutive sentences. Both Blakely and Apprendi involve a conviction for a single count. The historical and jurisprudential basis for the Blakely and Apprendi holdings did not involve consecutive sentencing.... [T]he consecutive sentencing decision can only be made once the accused has been found beyond a reasonable doubt to have committed two or more offenses—this fully complies with the Sixth Amendment jury trial and Fourteenth Amendment due process clause rights. Those facts which affect the appropriate sentence within the range of potential terms of incarceration for each offense are subject to Blakely and Apprendi; this constitutional principle does not extend to whether the sentences for charges which have been found to be true beyond a reasonable doubt shall be served consecutively.

Though I am not an expert on California law, these conclusions certainly seem debatable. And, notably, we now have word that these conclusions will be debated by the California Supreme Court, which today granted review of just this issue. Specifically, in People v. Black, the California Supreme Court has now asked the parties to brief the following questions:

(1) What effect does Blakely v. Washington (2004) 124 S.Ct. 2531 have on the validity of defendant's upper term sentence? (2) What effect does Blakely have on the trial court's imposition of consecutive sentences?

July 28, 2004 in Blakely in the States | Permalink | Comments (2) | TrackBack

SCOTUS hears the other side

The defendants and amicus are today filing papers in response to the Solicitor General's cert petitions (background here and here). Here's what I can tell from a quick review of the documents that I have in hand (and post below):

A. The amicus from the National Association of Criminal Defense Lawyers suggests that the High Court grant review in Booker (from the Seventh Circuit) or Pineiro (from the Fifth Circuit), deny review in Fanfan (from the Maine District Court), and grant review in Bijou (a case involving an enhancement based essentially on "acquitted conduct" decided by the Fourth Circuit before Blakely). Here are the questions presented in this amicus brief:

1. Whether a district court violates the Fifth and Sixth Amendments by relying upon facts that increase the maximum sentence available under the United States Sentencing Guidelines (other than the fact of a prior conviction) when those facts were not charged in the indictment and either found by the jury on proof beyond a reasonable doubt or admitted by the defendant.

2. If the answer to the first question is “yes,” the following question is presented: What role do the Sentencing Reform Act, the Sentencing Guidelines, and Federal Rule of Criminal Procedure 32 continue to play in federal criminal sentencing?

Download nacdl_blakely_amicus_final.pdf

B. Fanfan is opposing cert (in a brief signed by former SG Seth Waxman and co-authored by several other heavy hitters) while endorsing Bijou as a vehicle for the consideration of these matters. The briefs also suggests that the Court should not expedite the briefing schedule, but should expedite the argument date.
Download fanfan_bio.pdf
Download fanfan_appendices.pdf
Download fanfan_response_to_motion_to_expedite.pdf.pdf

C. It seems that Booker may be consenting to cert but opposing expedition, although details are still sketchy and I do not yet have a brief in hand. (UPDATE: I now have the Booker briefs here, and the arguments appear wonderfully nuanced):
Download booker_brief_in_response.pdf
Download booker_response_expedite.pdf

More details (perhaps more accurate details) can be found here at the SCOTUSBlog. And more details (and commentary) here soon.

July 28, 2004 in Blakely in the Supreme Court | Permalink | Comments (1) | TrackBack

More Blakely insights for Californians

Now available on the Blakely page assembled by the Appellate Defenders, Inc. is this helpful memo, entitled "The Application of Blakely v. Washington to California Courts" and prepared by Superior Court Judges J. Richards Couzens and Tricia A. Bigelow.

The memo advises California's courts of potential sentencing issues raised by Blakely, and suggests a reasonable course of action to address the potential effect of the decision pending further analysis by California's appellate courts.

July 28, 2004 in Blakely in the States | Permalink | Comments (1) | TrackBack

More news from the Sixth Circuit and elsewhere

The Sixth Circuit has now officially selected US v. Koch for en banc consideration of Blakely issues, with briefing to be completed in a week and oral argument set for August 11, 2004. This article provides some additional background and details. And, as they do so well, How Appealing has collected additional Blakely news stories here and the Blakely Blog has a morning report and recap here.

Also, though it requires a subscription for access, here is a link to an article in yesterday's New York Law Journal entitled "All 'Blakely' All the Time," which highlights that "The Internet Is Awash in Sites Devoted to the Recent Ruling." Many thanks to Ken Strutin, director of legal information services at the New York State Defenders Association, for effectively detailing all the Blakely resources on the web and for saying nice things about my efforts.

July 28, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

If you destory it, they will come...

It seems the Blakely decision has created a new Field of Dreams, because judges are coming back to federal sentencing now that the guidelines have been "unbuilt." In US v. Sisson, Senior US District Judge Edward Harrington reports that he "shall recommence drawing criminal cases on September 1, 2004 in view of the US Supreme Court's decision in Blakely." As he explains:

On June 19, 2001, the Court ... decided not to continue to draw criminal cases because under the Sentencing Commission Guidelines the power to impose a sentence has been virtually transferred from the court to the government, which, as the prosecuting authority, is an interested party to the case. This transfer constitutes an erosion of judicial power and a breach in the wall of the doctrine of the separation of powers. The government, not the judge, the impartial arbiter, has the power to determine the severity of the punishment....
In returning to the criminal draw, the Court shall follow the implications of Blakely on the Sentencing Commission Guidelines as cogently reasoned in the case of United States v. King, No. 6:04-cr-35-Orl-31KRS (M.D. Fla. July 19, 2004), pending further direction by the Court of Appeals for the First Circuit. In brief, it shall treat the Guidelines as unconstitutional in all cases and shall adhere to the statutory commands setting sentences. In other words, in all cases, the Court shall handle the sentencing as courts handled sentencing before the Guidelines -- by making a full examination of an individual defendant's personal character, family responsibilities, medical and mental condition, criminal record, and the particular circumstances surrounding the crime and imposing an appropriate sentence within the broad range set by Congress, after deep reflection informed by his experience in life and in the law. Despite a return to an indeterminate sentencing scheme, the Court "will continue to rely on the Guidelines as recommendations worthy of serious consideration." King, at 12.

This is, of course, a wonderfully ironic reversal of the tendency of federal judges to stop taking criminal cases (or even retiring like Judge John Martin) because of the dynamics of federal sentencing.

Many thanks for the pointer to Sisson goes to Petert Schmidt at USSGuide, which continues to effectively assemble here the ever expanding corpus of Blakely decisions in lower federal courts.

July 28, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Deep Thoughts...

In the wee hours of the night, the daily mania of Blakely developments gives way to broader reflections on our amazing new sentencing world:

1. Though perhaps nobody has time to ponder such questions, I wonder about the ethical obligations of lawyers and others operating in the criminal justice system at a time of such great uncertainty. Does zealous advocacy and/or a commitment to justice have a unique spin when nobody really knows the current rules nor can reasonably predict the future rules? This document, prepared by the Appellate Defenders, Inc., got me thinking about these issues through its "alert" that Blakely "creates responsibilities for appointed appellate counsel." I have also been thinking in this vein about probation officers (the so-called "guardians of the guidelines") and staff at state and federal sentencing commissions. Do the persons responsible for administering "the system" have a new set of professional responsibilities when the system has been so radically disrupted?

2. Though Blakely is obviously the progeny of Apprendi, might it also be viewed as an indirect by-product of the decision in Ewing v. California, the 2003 decision upholding a severe application of California's 3-strikes laws against an Eighth Amendment challenge? Specifically, I think Justices Stevens, Ginsburg and Souter may have been particularly eager to regulate sentencing procedures through the Sixth Amendment and the Due Process Clause after Ewing made clear that a majority of the Court was not eager to regulate sentencing outcomes through the Eighth Amendment. Conceived in this way, we might then notice an ironic mirror image of the High Court's regulation of capital punishment, which Furman made a matter of Eighth Amendment jurisprudence only one year after McGautha turned away a Due Process challenge.

3. Did the Framers have a peculiar understanding of sentencing proportionality? If I am reading Washington's petition for rehearing properly, it seems that the maximum punishment around the time of the Founding for manslaughter on federal property was only three years, while the maximum punishment for stealing or falsifying courts records was seven years and whipping up to 39 stripes. See petition at pp. 3-4 & n.4. (Aside: Washington earns chutzpah bonus points for implying that the whipping provision shows the Framers "were progressive sentencing reformers" for "recognizing alternative sanctions.")

July 28, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

July 27, 2004

Now, officially, news from New Mexico

Below is a repost of a post from last week that was removed because a final order was not entered immediately after the decision in US v. Pedro Quijada was handed down. But now I have a copy of the government's "Motion to Correct Sentence," which in my mind makes this matter "official" to report. See paragraphs 9 and 10 for the key Blakely prompting the government's motion:
Download quijada_mot_reconsider.pdf

Steve McCue, Federal Public Defender in New Mexico provided the following interesting and important report abut a ruling US v. Pedro Quijada, NM 04cr0516. Here's the text:

US District Judge James O. Browning, District of New Mexico, today declined to apply the sixteen-level enhancement for an aggravated felony/crime of violence in the Reentry after Deportation guideline, USSG § 2L1.2(b)(1)(A)(ii). As I understand, it the court found that the enhancement required it to make a finding regarding the nature of the prior conviction (i.e. that it was a "crime of violence") in derogation of Blakely. The court semed to think that the required characterization of the prior was more than the "fact of the prior conviction" [which seems to be an exception to the Blakely rule due to the holding in Almendarez-Torres]. Of course this has major implications not only for southwest border courts but also for other USSG enhancements like Career Offender....
Several judges here have declined to apply USSG enhancements under Blakely. So far courts here in the USDC NM have avoided ruling the guidelines unconstitutional. Courts are however imposing alternative sentences.

Judge Browning has granted the government's motion to correct sentence in Floyd Lopez' Pedro Quijada case. This was the reentry after deportation case in which Judge Browning had refused to apply the sixteen level enhancement of §2L1.2 USSG to a prior "crime of violence" because he had to make a finding that the prior was indeed a crime of violence. Judge Browning found today that, in light of the intervening Tenth Circuit opinion in US v. Cooper, ___ F.3d ___ at fn.3, 2004 WL 1598798 (10th Cir. 2004), the fact of prior conviction is one found by the court by a preponderance of the evidence and Blakely does not apply to this determination. The court went on to find that Quijada's prior was a crime of violence and awarded the sixteen level enhancement. Mr. Quijada got 46 months - the low end of the guideline range. Cooper is a three strikes case. Judge Browning equated the finding of "serious violent felony" under 18 USC §3559(c) with the finding of "crime of violence" under 2L1.2.

July 27, 2004 in Blakely in Sentencing Courts | Permalink | Comments (9) | TrackBack

Lawlessness versus leniency: the real severability debate

As noted before here, and as highlighted by Judge Gertner in her Meuffleman opinion, lower courts appear to be "evenly split" on the question of severability. See Meuffleman, Slip op. at pp. 33-34 & n.35. This split is both fascinating and not surprising because the severability decision, at its core, requires judges to make a very difficult judgment call about whether Congress would prefer lawlessness or leniency in the wake of Blakely.

As suggested recently here and here, taking the conclusion of non-severability to its logical extreme could return federal sentencing to the "lawless" state it was in before the 1984 passage of the Sentencing Reform Act. But, as Judge Presnell suggests in his Parson decision (background here), applying the guidelines in a "piecemeal fashion" after a conclusion of severability might seem to require judges to impose unduly lenient sentences.

Understanding the severability debate in this way helps explain the positions of some of the players. Defenders are generally arguing for severability, and they have the (perceived-to-be-liberal) Ninth Circuit on their side. DOJ is arguing for non-severability since it would apparently prefer a lawless world to a lenient one (at least in those cases with Blakely factors), and Judges Cassell and Presnell seem to be in this camp.

Of course, the fundamental questions is what would Congress want. But this question is so hard to answer because, though the Congress that passed the SRA was primarily focused on remedying lawlessness, subsequent Congresses have shown a particular concern about perceived leniency. (I have written more fully about these themes, in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stanford Law & Policy Review 93 (1999).)

Ultimately, I believe a sophisticated and nuanced severability analysis can avoid an extreme choice between the dueling evils of lawlessness and undue leniency. Specifically, I think the long-neglected discretionary authority of judges to upward depart from base offense levels provides a mechanism which could be utilized right now to avoid either extreme of lawlessness or undue leniency. I will have to be off-line most of this afternoon, but I hope to explain this point more late tonight.

July 27, 2004 in Blakely Commentary and News | Permalink | Comments (6) | TrackBack

The State of Washington Speaks (to SCOTUS)!!

As reported here a few weeks ago, the state of Washington has decided to petition the Supreme Court to rehear Blakely. I have now received a copy of the petition, which is here attached:
Download blakely_petition_for_rehearing.pdf

Here are the main argument points:

I. The Historical Evidence the Court Has Relied On to Interpret the Meaning of the Fifth and Sixth Amendments is Inaccurate and Incomplete

II. Because this Court Will Soon Again Hear Arguments About Apprendi, Fairness to the State of Washington Supports Reargument in this Case

UPDATE: Washington's petition is a great read, which makes a number of interesting points in interesting ways. It contends, for example, (1) that at least 18 states may be adversely impacted by the Blakely holding; (2) that "the Framers themselves were progressive sentencing reformers, making it even harder to imagine that they would have thought unconstitutional the progressive 'guided discretion' sentencing reforms of the past 25 years"; (3) that since Almendarez-Torres "the law of criminal sentencing in the United States has been in turmoil. Six years later – and four weeks after this court’s June 24 opinion – the situation is no better. Unprecedented turmoil and uncertainty in theory and in practice reign." Great stuff!

July 27, 2004 in Blakely in the Supreme Court | Permalink | Comments (7) | TrackBack

It's a Blakely morning

Howard Bashman at How Appealing and Jason Hernandez yet again do fine work collecting the morning Blakely news here and here.

The most noteworthy news in the collection of stories comes from this article, which reports that Maryland US District Judge Catherine Blake found the federal guidelines unconstitutional and unseverable and then imposed life sentence on a defendant Aaron Foster who had been convicted in April of operating a drug gang in a housing complex. In a brief (under)statement, the defendant's attorney noted that the decision to scrap the guidelines "wasn't very helpful to Mr. Foster."

Highlighting other choice quotes, in this article we hear US Attorney Steven M. Biskupic from Wisconsin explain that the "main thing we're trying to avoid is having to re-do 100 sentencings after the Supreme Court decides what it's doing." And in this article discussing the Eighth Circuit's Mooney decision, we hear US Attorneys from Minnesota and North Dakota saying that the "worst is the unknown" and that this "has the potential to be an enormous, enormous burden on the court."

July 27, 2004 | Permalink | Comments (2) | TrackBack

Is parole back? Appeals gone?

It is easy to accept the basic notion that, in the words of the Senate's "Concurrent Resolution," the federal sentencing guidelines should be applied as "a cohesive and integrated whole, and not in a piecemeal fashion" (background here). But decisions in US v. Mueffleman (background here) and US v. King (background here) are starting to highlight some of the potentially very broad consequences of a conclusion of non-severability. Here are some concerns and/or questions that I have:

1. As I first argued here, the logic of non-severability suggests that the guidelines cannot apply in any case, whether on not the case involves "Blakely factors." This is what Judge Presnell emphatically holds in King and Judge Gertner strongly suggests in Mueffleman. But if the guidelines are wholly inapplicable and of no binding legal force in all cases (i.e., just a big book of judicial recommendations), what then supports prosecutors' filing of superceding indictments alleging "guideline facts"? In a world in which the guidelines have no legal force, aren't such additional facts in an indictment (prejudicial) "surplusage"?

2. Judge Gertner concludes in Mueffleman that she must declare the "Guidelines unconstitutional in their entirety," because they "were intended to cohere as a single regime," and thus she feels "obliged to sentence these defendants according to the pre-1984 system." Does this mean that parole is back in the federal system? Judge Gertner implies as much in her opinion (see p. 38), and the use of the term "indeterminate sentencing" by Judges Gertner and Presnell and others recalls a time when judges could not determine exact sentences because parole boards established actual release dates. (Perhaps these judges mean just to refer to discretionary sentencing, rather than indeterminate sentencing.) Notably, the US Parole Commission is still in business, and perhaps someone should warn the folks at the USPC that they might soon need to hire a lot of new staff.

3. Judge Gertner suggests that, despite her broad non-severability conclusion, perhaps the Sentencing Reform Act's provision for appellate review remains standing. But what legally supports severing this one piece of a system that has been deemed entirely non-severable in every other respect? Moreover, what is going to be the nature of any preserved right of appeal? As Kate Stith and Jose Cabranes have noted, discretionary sentencing decisions before the SRA were "virtually unreviewable on appeal." 91 Nw. U. L. Rev. 1247, 1251-52 (1997). Critically, this question is not merely academic for defendant Charles Matthew Parson, who was just sentenced to 28 months by Judge Presnell even though the "applicable" guidelines range was 21-27 months. Were the guidelines still in force, Judge Presnell would have had to justify an upward departure and that departure decision would be appealable by Parson. But, since we are back to a pre-SRA world, it would seem Parson has no real appellate recourse.

4. Finally, where and how does waiver fit into all this? The Blakely court stressed the prospect of defendants waiving "Blakely rights," while the Eighth Circuit in Mooney suggested defendants could "consent to a Guidelines sentence." But it is hard to understand how guidelines deemed non-severable and therefore of no binding legal force can perhaps take on legal force if the defendant "waives" or "consents." I can understand why a particular defendant — such as Charles Matthew Parson — would want to "consent" to a Guidelines sentence. But can a defendant's desire to have the guidelines in force supercede a court's conclusion that the guideline scheme is non-severable and thus no longer legally binding?

July 27, 2004 in Blakely Commentary and News | Permalink | Comments (8) | TrackBack

July 26, 2004

More news from the districts

I received a report today of a district judge in the same circuit as Judge Gertner who did not take her approach to severability (background here). According to the report I received, US District Judge George Z. Singal of the District of Maine (where our old friend Fanfan is from) decided in US v. Zompa, 04-46 that Blakely applies to the federal guidelines, but the federal guidelines are severable and thus the defendant is to be sentenced only based on facts admitted by the defendant. Apparently, the standard guideline calculations for the defendant in this drug case would have produced a sentencing range of 37-46 months, but that was reduced to a range of 0-6 months, and Judge Singal imposed a final sentence of 5 months. Judge Singal also declined the Government's request to give "hypothetical" or alternative sentences. A written opinion is expected.

UPDATE: Here is a copy of the opinion Judge Singal filed in Zompa:
Download USA_v_ZOMPA.pdf

Meanwhile, at the other end of the east coast, Judge Gregory Presnell of the Middle District of Florida continues to adhere to his view that Blakely renders the guidelines wholly inapplicable in all cases (background here). Below are two more short opinions from him:
Download us_v. Parson (03-cr-204).pdf
Download us_v. Khoury (04-cr-24).pdf

Notably, Judge Presnell asserts that US v. Parson "presents a prime example of why the U.S. Sentencing Guidelines cannot be applied in a piecemeal fashion when enhancements are present, as has been suggested by numerous courts across the country in light of Blakely." However, in a post later tonight, I hope to set out an argument which questions this assertion.

July 26, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

They can't all have Blakely claims, can they?

As detailed in this New York Times article, the number of persons under the control of the criminal justice has reached a new high and is quickly approaching 7,000,000. (The Times article calls them "Americans," but I doubt they are all US citizens.)

As this press release details, the latest data indicate that, as of June 30, 2003, there are 2,078,570 persons in federal and state prisons or jails. And, as of December 31, 2003, 4,073,987 adults were on probation and an additional 774,588 on parole. With that large a number, there must still be a few who don't (yet) know about Blakely.

One prisoner who clearly does know about Blakely is Jimmy Bijou, whose counsel has filed a cert. petition which can be accessed here from the Blakely Blog. The petition effectively highlights one of the many compelling situations in which the old guideline rules look so very hinky after Blakely's embrace of th Sixth Amendment: according to the brief, "the same judge who excluded tainted drug evidence from the jury turned around at sentencing and used the same evidence to double the applicable sentencing range." Problematically, this cert. petition does not present the severability question, though it reminds me that SCOTUS might think about taking some cases in addition to those the SG is pushing.

July 26, 2004 in Blakely Commentary and News, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Read all about it... (especially severability)

I have just finished Judge Nancy Gertner's opinion in Meuffleman, and it is by far the most comprehensive judicial treatment of federal sentencing issues in the wake of Blakely that I have seen. (Indeed, one very knowledgeable observer has already called it in an e-mail to me "the best of the batch so far.") The decision is so very rich factually — e.g., consider Judge Gertner's report that she alone has 30(!) "in the pipeline" cases now on her docket (n.2) and her recounting of the factual dispute in the sentencing of defendant Michael Notkin (pp. 12-13). But the legal analysis take this opinion to another level, with even many footnotes doing important and groundbreaking work (see especially notes 1, 9, 20 and all of 35-38).

Though there are many points Judge Gertner makes that are worthy of discussion, I want here to highlight her severability analysis (pp. 25-38), and particularly her conclusion that "the Government advances a selective severability argument ... [that] makes no sense." Slip op. at p. 35. Agreeing with the position of Judge Presnell in US v. King (background here), Judge Gertner suggests (though does not quite expressly hold) that her non-severability conclusion means the guidelines must be inapplicable in all cases:

If all of the Guidelines — not just those about enhancements, but even those setting base offense levels — were drafted with judges in mind and further, if the system were intended to cohere as a single regime, how can there be a two-tiered system — one Guideline-based, one indeterminate?

July 26, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Unconventional wisdom?

There is big news out of Boston, even before the Democratic Convention officially gets started (and I am not talking about the BoSox taking 2 of 3 from the Yanks). Today, US District Judge Nancy Gertner of the District of Massachusetts — who rivals Judge Weinstein in her penchant for scholarly (and copious) sentencing opinions — has weighed in on what Blakely means for federal sentencing. In the attached opinion in US v. Mueffleman, she states:

I conclude (1) that it is entirely appropriate for a lower trial court to consider Blakely issues and add her voice to the dialogue about the decision’s implications; (2) that Blakely unquestionably applies to the Federal Sentencing Guidelines; and (3) that the Guidelines are rendered unconstitutional in their entirety by that application.

While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act or of the Guidelines. To literally engraft a system of jury trials involving fact-finding enhancements onto the Sentencing Guideline is to create a completely different regime than that comprehensive sentencing system envisioned by the legislation’s drafters or the drafters of the Guidelines. If such a system is required to give full effect to the Constitution’s jury trial guarantee then the entire sentencing system has to be recast. The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis.

More commentary on this case (available below) and other developments soon. In the meantime, I and other Shrek fans should try to avoid humming this variation of the children's ditty: "Do you know the Mueffleman, the Mueffleman, the Mueffleman....?"
Download gertner_blakely_decision.pdf

July 26, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Weekend Update

The weekend allowed for reflection by both commentators and reporters, and I first want to highlight recent posts on waiver, severability and retroactivity, all topics which have generated many questions (at least in my e-mail in-box).

In addition, this morning's papers reflect reflection by reporters. This article from Oklahoma, with great quotes from judges and lawyers, discusses the major impact and uncertainty that Blakely has caused in local federal courts; this article from New Jersey discusses, in the words of Frank Bowman, the on-going "madness," and has another academic calling Blakely the "biggest thing since sliced bread, at least in the area of criminal law." And this article, which primarily discusses the Fourth Circuit's scheduled en banc hearing next week, has a lawyer colorfully describing the impact of relevant conduct sharply increasing his client's sentence: "Thomas Jefferson and John Adams are spinning in their graves when something like that happens."

And while collecting choice Blakely quotes, we should not leave out the work of the Washington Post editorial writers. Keeping up the heat on the Supreme Court, today's editorial from the Post notes that every branch of the federal government has urged quick Supreme Court action and concludes:

it is hard to imagine a more profound rebuke to its work than seeing all three branches of government declare that the law as the court has interpreted it is so unfathomable that they cannot do their jobs until the court speaks again. That ought to be enough to interrupt a summer vacation.

July 26, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

July 25, 2004

Thoughts on Retroactivity and Clemency

I now receive many, many inquiries from prisoners' families and others about the prospect of retroactive application of Blakely. Though I have discussed this issue briefly here, I find disconcerting the likelihood that courts will seek to limit Blakely's retroactivity simply for fear of having numerous federal (and state) defendant prisoners returning to the courthouse with Blakely issues. Though courts' desire to limit Blakely retroactivity to avoid a flood of habeas petitions is understandable (and perhaps even sensible), truly compelling cases may get shut out because judicial retroactivity doctrine makes it difficult to readily (and efficiently) sort compelling Blakely claims from frivolous ones.

But, critically, institutions other than courts can focus on justice and sound policy without undue concern about creating dangerous precedents or the abstract concept of finality. For example, legislatures could draft various kinds of remedies to deal with cases now final that raise serious Blakely issues, and executive clemency could also be extremely important in this context. (Notably, the Supreme Court itself in Herrara v. Collins, 506 U.S. 390 (1993), has stressed executive clemency as a "fail-safe" for addressing compelling claims that a court might not be able to consider.)

To help me think through these issues, I spoke with Margaret Colgate Love, a specialist in post-conviction remedies and executive clemency, who served for twenty years in the US Department of Justice (including seven as US Pardon Attorney under the first President Bush and President Clinton. She was kind enough to quickly draft a letter (set forth below), which provides her thoughts about how Blakely claims could be addressed though executive clemency. Margy's letter is a terrifically interesting read, and I recommend it to everyone thinking about the law and policy of Blakely's retroactivity.
Download margylovepardonmemo_725.doc

July 25, 2004 in Blakely Commentary and News, Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (13) | TrackBack

Updating scorecards

I am trying to use this weekend to do a "head count" of major, on-the-record rulings declaring portions of the federal sentencing guidelines unconstitutional. As predicted here, this is no easy task and requires a lot of "coding" judgment calls. Nevertheless, I think it is safe to assert that there are already over 20 separate rulings in district and circuit courts declaring at least portions of the federal sentencing guidelines unconstitutional after Blakely. If anyone else is working on a master list, please feel free to use the comments to report on your conclusions.

July 25, 2004 in Blakely Commentary and News | Permalink | Comments (3) | TrackBack

In other SCOTUS news...

Though when and how the Supreme Court returns to Blakely is to be determined, the Supreme Court already has another important sentencing case on its agenda for the fall. In Roper v. Simmons, the court will re-examine the constitutionality of the death penalty for offenders who were juveniles when they committed their crimes. The case started making headlines last week when numerous austere groups and individuals files amicus briefs urging the Court to declare unconstitutional the execution of persons for crimes they committed before turning 18. (This post from the SCOTUSBlog collects newspaper articles discussing the amicus filings.)

The Roper decision, practically speaking, will impact only a few dozen cases across the country, but its symbolic importance cannot be overstated. As one of the amicus briefs explains, the "United States position on the juvenile death penalty isolates us diplomatically from our close allies and has been condemned by the international community." The Death Penalty Information Center has a large collection of materials concerning the Roper case available here, and the American Bar Association's Juvenile Justice Center has compiled copies of the amicus briefs here.

July 25, 2004 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (3) | TrackBack

Thoughtful Blakely coverage

Sunday's newspapers have a number of thoughtful pieces taking a broader look at Blakely's impact on modern sentencing reforms.

This article from the Knoxville News-Sentinel considers "The Blakely Effect," thoughtfully noting that the decision "has shaken up the legal community, spurred debates among legal scholars, prosecutors and defense attorneys, prompted hiatuses on sentencing hearings in some jurisdictions and put thousands of cases in line for review." Also featured is this cool graphic (click on it for better viewing).

Similarly, this opinion column discusses the broader impact of Blakely in creating a "back-to-the-drawing-board time for our criminal justice system." And this article discusses some Alabama cases involving severe sentences imposed under mandatory sentencing rules. In other news, this article discusses the Blakely the challenges facing federal prosecutors in a New Jersey criminal trial that has been on-going since March. And this article discusses federal prosecutors' efforts in Alabama to "update" indictments after Blakely.

July 25, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack