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August 7, 2004

More helpful Blakely reading

I am headed to the beach this afternoon, and have great pile of Blakely beach reading to take with me. First, as he does so well, Howard Bashman has collected the (ever growing) Blakely headlines here. This article from the Boston Globe highlights some of the legal drama, and this article from the Baltimore Sun highlights some of the human drama that Blakely has produced.

In addition, New York lawyer Marc Fernich was kind enough to send along a lengthy article he has written on Blakely, a version of which is slated to appear in the September issue of the Mouthpiece, the magazine for the New York State Association of Criminal Defense Lawyers. As Marc explains, "the article doesn't break much new ground, but it's thorough and comprehensive," and here it is for your reading pleasure:
Download marc_fernich_blakely_article.pdf

August 7, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

O' Daniel is a dandy

I have now had a chance to read closely Chief Judge Sven Erik Holmes' opinion in US v. O'Daniel, and I want to encourage folks to put the opinion on the top of their Blakely reading list. Though Ron provides some important highlights here (and Jason Hernandez does the same at the Blakely Blog here), the O'Daniel opinion makes too many important holdings and insightful observations to be fully captured through a brief summary. In addition, two critically important realities leap from the page in O'Daniel:

1. Judge Holmes emphasizes the distinction between Blakely's recognition of the jury right and of the right to a beyond a reasonable doubt standard of proof, and he concludes that a defendant could (and in this case did) make a valid waiver of the right to jury factfinding, but could not "waive down" the standard of proof. This distinction is very important in a lot of settings besides waiver (e.g., considerations of retroactivity and plain error), and it also is a reminder that the burden of proof issues may, over time, be much more important in the post-Blakely world than the jury versus judge as factfinder debate.

2. The sentencing world in Judge Holmes' courtroom seems so much more orderly and predictable than in those courtrooms in which judges have declared the entire guidelines system unconstitutional. No alternative sentencing, no questions about which parts of the Sentencing Reform Act are still in force, no question about whether parole is back or supervised release is gone, no question about the continued applicability of appellate review. In other words, Judge Holmes has presented a sound and sensible way to maintain our old guidelines world while still making it compliant with the Sixth Amendment and the dictates of Blakely.

August 7, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Get in Line

Post from Ron:
The order entered by the Second Circuit yesterday (noted by Doug here) seeks to freeze in place the many potential Blakely claims that might come from defendants who are now appealing their sentences imposed before the case was decided. In one sense, the order is not big news. It only spells out the implications of the Second Circuit's earlier remarkable decision to "certify" questions to the U.S. Supreme Court (background here). The Court of Appeals asked somebody else to handle this, and in the meantime they put all these questions on hold until the answers arrive.

Still, the order tells an interesting story about how many of these cases are in the system and the fact that so many of them will be making identical claims. It is easy to take special interest in the first case to get to each circuit court, and even more so the first case in which the Supreme Court grants cert. And we certainly should notice the large number of negotiations at the trial court that are affected. But it is easy to forget the large number of people who have already been convicted and sentenced but are waiting in line in the appellate courts, each with a routine case, but each potentially affected by Blakely.

Addition by Doug:
Moreover, though the Second Circuit order seeks to preserve the status quo, the range of (different and conflicting) decisions being made in district courts in the Second Circuit creates a status quo that is not nearly as orderly as the Second Circuit's order might imply.

In the end, though, this order does reinforce the point the Second Circuit made so forcefully when certifying questions to the Supreme Court: lower courts need additional guidance on Blakely ASAP. The Supreme Court should be coming to understand that it is not enough to simply hear Booker and Fanfan right away; the High Court needs to render a decision as soon as possible to keep the federal criminal justice system from grinding to a halt. But, given all the hard questions Blakely now raises (examples here), a fast decision is easier said than done.

August 7, 2004 in Blakely in Appellate Courts | Permalink | Comments (2) | TrackBack

The distinction that doesn't bark in Minnesota

I have now had a chance to read the Minnesota Sentencing Guidelines Commission's "short-term report," and it is yet another rich document with highlights both big and small. Ron did a terrific review here, and I particularly want to reiterate his observations about "two loudly ticking time bombs" to be found in the report's discussion of criminal history calculations and probation revocations (at pp. 10-11). It would have been useful, though perhaps disconcerting, to know the number of Minnesota cases per year that involve criminal history calculations and/or probation revocations that might now be Blakely problematic. My guess is that this number could be quite large.

I also wanted to highlight something that the Minnesota report does not say. I believe Minnesota's sentencing guidelines are produced administratively by a commission (like the federal sentencing guidelines), and thus are not statutorily enacted like the Washington guideline scheme invalidated in Blakely. Thus, it would seem that Minnesota's Commission could try to assert for the Minnesota system, as has DOJ and the USSC and some federal judges have asserted for the federal system, that Blakely is wholly inapplicable because the decision only concerns statutory guideline systems. But, tellingly, the Minnesota report does not even mention this administrative/statutory guidelines distinction, let alone try to claim that this distinction could allow the Minnesota sentencing system to avoid having to directly confront Blakely.

Finally, here and here are a few early press accounts of the Minnesota report.

August 7, 2004 | Permalink | Comments (1) | TrackBack

Is the Eighth Circuit taking Mooney en banc?

Howard Bashman of How Appealing reports here that he has been "reliably advised that the Eighth Circuit late [Friday] has granted rehearing en banc on the court's own motion in United States v. Mooney, the case in which a divided three-judge panel had declared the U.S. Sentencing Guidelines unconstitutional in the aftermath of Blakely." (Mooney basics are here, commentary here)

Though I was not able to find anything official on the Eighth Circuit's website, I assume Howard's information and sources are very sound. And, if true, the decision to take Mooney en banc would be yet another crazy development in the Eighth Circuit's part of the Blakely universe, which already has the craziness of another major circuit ruling in Pirani (details here) and a thoughtfully wayward district judge (details here).

August 7, 2004 in Blakely in Appellate Courts | Permalink | Comments (1) | TrackBack

August 6, 2004

Blakely never sleeps...except perhaps in the Second Circuit

Because it seems Blakely never takes a day off, I am fortunate to have access to a high-speed internet connection and a healthy printer tonight before heading to the beach tomorrow afternoon. Though Ron, as I expected, is already driving the blog beautifully, I am eager to post some commentary later about today's very interesting Minnesota report and the O'Daniel decision by Judge Holmes.

But, while Blakely and this blog keep putting the pedal to the medal, today the Second Circuit entered this order apparently designed to put the brakes on Blakely in that circuit. Here's the full text:

John M. Walker, Jr., Chief Judge of the United States Court of Appeals for the Second Circuit, today announced a set of procedural and administrative measures that his court is adopting pending the Supreme Court’s decision in US v. Booker, No. 04-104, and US v. Fanfan, No. 04-105 (to be argued October 4, 2004). These measures are as follows:

(1) The court generally will hold mandates in all criminal cases pending the Supreme Court’s decision in Booker/Fanfan. A panel may order that a mandate issue, however, in cases in which (a) the defendant was sentenced to no more than the applicable statutory minimum and (b) the facts that justified application of the statutory minimum were either admitted by the defendant or found by a jury beyond a reasonable doubt. Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part.

(2) All motions to file supplemental briefs in light of the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), will be denied without prejudice to renewal following the Supreme Court’s decision in Booker/Fanfan.

(3) Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its decisions that address defendants’ sentences until after the Supreme Court’s decision in Booker/Fanfan. In that regard, the parties will have until 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker/Fanfan.

This order — though not as dramatic or as consequential as the recent California appellate court order refusing to compensate appointed counsel for research or briefing of Blakely issues (details here) or the Indiana US Attorney's decision to seek a stay of all sentencing hearings (details here) — is just another example of a lower court's effort to cope with a period of unprecedented legal uncertainty while we all await further guidance about the meaning of Blakely .

August 6, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Minimizing in Minnesota

Post from Ron:
Now that I've read the Minnesota Commission report more carefully (background here and here), allow me a few observations.

First, the decision to allow the Commission to take the lead in both diagnosing and fixing any problems is so ... sane! It just had to happen in Minnesota.

Second, the Commission goes out of its way in this report to explain how small and manageable the problems are. The report says time and again that Blakely affirmed the validity of presumptive guideline sentences, and the problem in Minnesota is really limited to the upward departure sentences. No changes in the basic structure, with its twenty years of history, is needed.

There are some hard numbers to back up this claim. Although there were 1002 upward departures in Minnesota for 2002 (counting both dispositional and durational departures), only 79 of those cases went to trial and the Kansas experience suggests that the number of trials will not go up quickly now. In addition, about 50-60 cases per year involve special "statutory enhancements" such as predatory sex offenders or career offenders that might create Blakely problems.

But in a couple of unobtrusive paragraphs late in the report, the Minnesota Commission notes two loudly ticking time bombs. Blakely might affect all cases involving a "custody status point" (an additional criminal history point added if the current offense was committed while still on probation or parole status from a previous crime), and Blakely could affect all probation revocations. These two categories could dwarf the 79 + 60 cases with big Blakely issue noted earlier in the report.

One last observation: the report rightly points out that prosecutors involved in Blakely negotiations or litigation will have additional obligations to follow up with victims and explain the situation. Can you imagine how those conversations might go?

August 6, 2004 in Blakely Commentary and News | Permalink | Comments (3) | TrackBack

Waiver and the Fine Print

Post from Ron:
Chief Judge Sven Erik Holmes of the Northern District of Oklahoma filed an order today (download available below) in United States v. O'Daniel, holding that Blakely applies to the federal guidelines and sentencing the defendant under modified procedures.

The distinctive feature of this case deals with waiver: the defendant waived a jury trial before Blakely in a plea agreement rich in factual detail. When the judge proposed vacating the guilty plea in light of Blakely, the defendant refused to return to status quo ante and renegotiate. Instead, he insisted on sentencing under the plea agreement, but with the upward adjustments to the offense level no longer available.

The judge went forward with sentencing, taking at face value the defendant's plea agreement statement (remember, this was drafted pre-Blakely) that allowed the judge to enhance the sentence based on judicial factfinding. By the same token, the judge refused to accept the Government's contention that the standard of proof should remain preponderance of the evidence, and instead found the relevant facts beyond a reasonable doubt.

It's a tricky question, and likely to occur. Which provisions of existing plea agreements will be enforced (especially when defendants refuse to start over) and which will the judge ignore?

The opinion also addresses the details of waiver in future cases, and notes that the court will insist that any waiver of trial must also include a waiver of jury factfinding for sentence enhancements -- no partial waivers allowed. And finally, the opinion notes that in some cases, judges may need to order bifurcated federal trials, where the sentence enhancements would prove too prejudicial in the guilt-innocence trial.

Download NDOkla-Aug6.pdf

August 6, 2004 in Blakely in Sentencing Courts, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Minnesota's Commission Speaks

Post from Ron:
This afternoon the Minnesota Sentencing Guidelines Commission conveyed its Blakely report to the Minnesota Governor. Here is a link to the report. And here is the money quote:

The recent Blakely v. Washington decision directly impacts neither the constitutionality nor the structure of the Minnesota Sentencing Guidelines. However, the decision does affect certain sentencing procedures pertaining to aggravated departures and specific sentence enhancements that will need to be modified to meet the constitutionality issues identified under Blakely. Those procedures can be corrected, as demonstrated by the state of Kansas, who addressed this very issue in 2001, with limited impact on the criminal justice system as a whole. The impact of Blakely on sentencing in Minnesota, while temporarily disruptive, is limited in scope and can be addressed within the current sentencing guidelines scheme.

I come to sentencing questions with a keen interest for state systems, since the state courts (collectively) process far more defendants than the federal courts and offer more interesting and hopeful variety in their solutions to problems of crime and justice. So you'll be hearing more from me about this Minnesota report after I've read it. In the meantime, you've now got your own copy to peruse. What do you think?

August 6, 2004 in Blakely in the States | Permalink | Comments (1) | TrackBack

Keep those cards and letters cc-ing

Post from Ron:
Doug loaned me the keys to this car, and I promised not to wreck it while he is away. Hmm, wonder how well it corners?

The amazing success of this blog has a few components. One of them -- Doug's joyful engagement with the subject -- I certainly won't try to replace. But another ingredient of blog success can remain in place even while Doug is on the road and checking in less frequently. That ingredient is input from readers of the site. I am depending on you! If you learn about interesting sentencing developments (Blakely-related or otherwise), I hope you will mention them in the comments on this site, or send me an email at wrightrf@law.wfu.edu. Be sure to send a copy to Doug, as well, because he will still check in from time to time.

I'm looking forward to a great ride over the next few days.

August 6, 2004 | Permalink | Comments (3) | TrackBack

Holiday Road.....

Because I am about to make like Clark Griswold and head to the golf equivalent of Walley World, blogging will be a a bit lighter over the next 10 days.

But regular readers of course know that Jason Hernandez at the Blakely Blog will keep up on breaking Blakely news and Howard Bashman at How Appealing will continue to be an effective collector of Blakely news stories.

Plus I am very pleased to report that my co-author and fellow sentencing aficiando Professor Ron Wright has agreed to do a little guest blogging while I am away. And, because I cannot go cold turkey, I expect to get on-line every so often during the next week or so to post when I can.

While I am away, I encourage readers to continue to make robust use of the comments feature. And readers interested in particular issues should remember to use the search box in the left side-bar to focus on topics like retroactivitiy or waiver or severability.

August 6, 2004 | Permalink | Comments (1) | TrackBack

Challenging what Blakely does not change

Because Blakely only speaks to the application of the Sixth Amendment to facts which increase applicable maximum sentences, the Supreme Court's decision in Harris still stands for the proposition that facts which increase applicable minimum sentences can still be found by judges and by a preponderance of the evidence. (Although because of Justice Breyer's unusual fifth vote in Harris, the long-term validity of this precedent might be questioned.) This is among the reasons some are concerned that legislatures will respond to Blakely by enacting a rash of new and harsh mandatory minimum statutes.

But, as this article concerning the case of Weldon Angelos highlights, there are plenty of old and harsh mandatory minimum statutes already applicable in the federal system. Mr. Angelos, a first time offender, faces a federal sentence of 63 years of which 55 years are required under federal mandatory minimum sentences.

Documenting that he was concerned about federal sentencing practices well before Blakely and his Croxford opinion, Utah US District Judge Paul Cassell raised questions about the constitutionality of mandatory minimum sentences in the Angelos case back in February, and he directed defense attorneys and federal prosecutors to file briefs on the issue prior to sentencing in the case.

The case is making headlines now because last week a group 29 former legal officials — including former US attorneys, federal judges, and a former US attorney general — filed an amicus brief on Angelos' behalf, arguing that his sentence would be unconstitutional on various ground (most specifically as a violation of the Eighth Amendment's prohibition of cruel and unusual punishments).

I was fortunate to receive this amicus brief from the lawyers at Greenberg Traurig, LLP who put together this impressive amicus effort. The brief is a great read (and includes an impressive list of signers at the end). Here it is for your reading pleasure:
Download mm_amicus_brief.doc

August 6, 2004 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Another fascinating read from a District Court

The Vera Institute's report, "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems," provides a stunning view of the post-Blakely world from a system-wide perspective. In contrast, US District Judge Gerald Lynch's recent opinion in US v. Emmenegger (details here) provides a stunning view of the post-Blakely world from a case-specific perspective.

Among other virtues, Emmenegger provides the most thorough and thoughtful iteration of the impact of alternative sentencing schemes in the wake of Blakely, while also providing a mini-primer on relevant sentencing considerations along the way. Interestingly, Judge Lynch's opinion exhibits a hint of grumpiness about the Second Circuit's failure to provide guidance to its district courts and also takes a swipe a Blakely's formalism. And this is all in service to reaching the (interesting but contestable) conclusion that "sentencing guideline systems seem more analogous to the kinds of fact-finding that judges historically performed under discretionary sentencing regimes, and less comparable to the creation of innumerable degrees of separate crimes."

Though Emmenegger is full of interesting facets — including Judge Lynch's conclusion that he would impose a sentence of 33 months under the guidelines, but a sentence of only 24 months if the guideline were not legally binding — I am always drawn to court's severability analysis. And, once again, I feel like we are left with more questions than answers (compare here).

Judge Lynch states clearly his view that if upward enhancements based on judicial fact-finding are unconstitutional, then "the entire structure of the Guidelines must fall." Slip op. at 39. And yet, because Judge Lynch treats 18 USC 3553(a) as if it were still legally binding even if the guidelines were wholly unconstitutional, see slip op. at 21, it seems as though he believes the SRA (or at least a key portion thereof) would remain in force even as the Guidelines fall. But Judge Lynch never explains why part of a statute designed to create binding Guidelines is severable from the constitutionally infirm "entire structure" that this statute authorized. He also never indicates whether other parts of the statute — e.g., the elimination of parole, the creation of suprevised release, the authorization of appellate review — stand or fall in light of his severability analysis. In addition, Judge Lynch speaks of the intention of the Sentencing Commission in his severability anlysis, see Slip op. at 39, though I am left to wonder why a judicial branch agency's intent is directly relevant to a severability question considered a matter of "legislative intent." (Perhaps we could claim that Congress adopts the Commission's intent (or vice versa), but the disgreements between Congress and the USSC over the PROTECT Act highlight that these bodies might often have quite distinct intentions.)

Of course, since the severability analysis is all dicta, perhaps I cannot rightly fault Judge Lynch for not providing a fuller analysis. And yet, this is important dicta since Judge Lynch concludes that "the Court will in all future cases announce its alternative view of an appropriate sentence if the Court has discretion to impose sentence within the statutory range." And this decision to announce alternative sentences is itself intriguing in that Judge Lynch assails the idea of employing "sentencing-jury trials" because they are "completely unauthorized by any constitutional provision, statute, judicial precedent or tradition." Slip op. at 40. And yet, I think the exact same charge could be leveled against the announcement of alternative sentences, since such a practice is at least arguably "completely unauthorized by any constitutional provision, statute, judicial precedent or tradition."

August 6, 2004 in Blakely in Sentencing Courts | Permalink | Comments (1) | TrackBack

State of the States

In her Blakely dissent, Justice O'Connor identified nine states in addition to Washington with guideline systems that could be impacted by the Blakely ruling: Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Oregon, and Pennsylvania. But the rapid reaction to Blakely in states like Arizona (details here and recent news report here) and California (details here and here) and Tennessee (details here) suggested that perhaps a much larger number of states will have to grapple with Blakely's impact on their sentencing systems.

The stunning and important report from the Vera Institute today (details here) confirms that the impact of Blakely in the states is far and wide. The Vera report identifies 21 states with structured sentencing systems that could be directly impacted by Blakely, and it also notes that "Blakely has implications for other state sentencing provisions" as well. Proving this point is this article discussing the effect of Blakely in Maine (which does not appear on Vera's list of likely impacted states).

The Vera report is a must-read for all Blakely followers because of its consistently insightful analysis, which includes trenchant observations about Blakely's "potential to reshape sentencing in the United States" and about the "apparently perverse result of the Blakely ruling." The questions raised and uncertainty caused by Blakely are highlighted throughout the Vera report, which in turn makes me eager to see a promised companion report from Vera entitled "Legal Considerations for State Sentencing Systems."

Finally, though I am not sure exactly when future Vera reports are coming, I do know that additional state discussion of Blakely is imminent. Various sources have reported that the Minnesota Sentencing Guidelines Commission will release its short-term report on Blakely this Friday afternoon. Indeed, here's an article with some early sketchy details about the report.

August 6, 2004 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

August 5, 2004

Blakely-coping, California style

As if the day was not already mind-boggling enough, a reader from California was kind enough to send along news of this startling Standing Order that was recently entered by the Fifth District California Court of Appeal. The Order clearly is an effort to cope with (or perhaps just duck) Blakely issues until the California Supreme Court addresses Blakely's California meaning in two cases already slated for review. (Those two California cases are People v. Towne (background here), and People v. Black (background here). Here's the full text of the Standing Order:

Effective August 3, 2004, this court will no longer compensate appointed counsel for research or briefing directed to any issue presented by Blakely v. Washington (2004), pending opinions by the California Supreme Court in People v. Towne (review granted Jul. 14, 2004, S125677), and People v. Black (review granted Jul. 28, 2004, S126182).

However, if counsel or appellant wishes to raise a Blakely issue in any case pending before this court, he or she may file a letter stating with precision the Blakely issue[s] he or she wishes to raise on the appellant’s behalf and this court will deem such issue[s] raised, thereby preserving the appellant’s ability to seek review of the issue[s] in the California Supreme Court. The failure to identify an issue by a letter will operate as a waiver. The People, through the Attorney General, need not file any response to such a letter statement and the court will deem the stated issue[s] to be opposed by the People.

The Court may request further briefing in any case and will reevaluate this order after the California Supreme Court rules in Towne and Black. This order does not apply to any pending appeal in which this court has ordered or authorized, on or before August 2, 2004, specific briefing on a Blakely issue. The purpose of this order is to ensure that the subject issues will be raised and preserved for review in an efficient manner.

Dated: August 2, 2004

I am not sure whether to decry this order as unconstitutional or praise it as brilliant. It does reinforce for me the enormous challenges courts face trying to sort compelling Blakely claims from frivolous ones. I am not sure this Standing Order — with its slightly hidden "waiver" threat — is a sound (or even legally permissible) sorting mechanism. But I am not surprised to see a court looking for life preservers in the face of a tidal wave of Blakely claims.

August 5, 2004 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

The Vera Institute Speaks!!

The Vera Institute of Justice — which has been long been doing extremely important justice-related projects and in recent years been especially involved in state sentencing reform through its State Sentencing and Corrections Program — has just released a publication that looks at the impact of Blakely on state sentencing systems. The Vera report is entitled "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems," and it can be accessed here.

For a taste of what Vera contributes, here's a brief account from the report's authors Jon Wool and Don Stemen:

Few Supreme Court decisions have caused the turmoil that many state courts and practitioners are now experiencing as a result of Blakely v. Washington. The Court ruled that the Sixth Amendment forbids a judge to increase a criminal sentence based on facts not found by a jury beyond a reasonable doubt. The immediate effect? The invalidation of procedures used in Washington State's sentencing guideline system and the casting of doubt on the constitutional validity of structured sentencing systems nationwide. In more than 20 states, officials will need to look seriously at major aspects of how defendants are sentenced and many will need to make policy changes.

This publication is the first in a series that Vera's State Sentencing and Corrections program will produce as part of its effort to provide timely and helpful analysis of Blakely's reach, offer practical advice to state lawmakers needing to realign their systems, and report on state reactions to the ruling. In this first report, we look to answer two big questions: Which states' sentencing systems are affected by Blakely? and What responsive options are available to legislators and other policymakers?

Vera also has plans in the works to convene a national meeting in Denver on September 22-23, 2004, for teams of officials from selected states affected by Blakely. According to Vera officials:

This day-and-a-half discussion will provide an opportunity for state policymakers to engage with each other and with leading practitioners and experts to develop feasible strategies — both immediate and longer-term — for responding to the Court's ruling. Vera will cover travel and all other meeting costs for participants. Because participant space is limited, invitations will be extended based on an application process. States are asked to complete this linked application and return it to Vera by Friday, August 20, 2004.

Finally, as noted before here, Vera (which, by the way, also co-produces the Federal Sentencing Reporter) will host on Thursday, August 12th an early morning discussion on the implications of Blakely for the federal sentencing guidelines. Frank Bowman, one of FSR’s editors, will be the guest speaker. Vera asks that those interested in attending download the invitation here and RSVP because space is limited.
Download verafsrs_bowman_invite.pdf

August 5, 2004 in Blakely Commentary and News, Blakely in the States | Permalink | Comments (2) | TrackBack

Just when you thought it was safe to go into the blog...

On a day I was hoping would be quiet so I could wrap up critical pre-vacation tasks, we get yet one more major event: another thoughtful and insightful (and long) Blakely opinion from district judge who is rightly regarded as an intellectual leader in the field of sentencing. Available for download below is US District Judge Gerald Lynch's opinion in US v. Emmenegger. As an esteemed sentencing scholar noted when sending me this opinion:

Like Judge Nancy Gertner, Judge Lynch is one of the most sophisticated judges on the federal bench in sentencing issues. And yet we see Judges Gertner and Lynch at odds on the main issue: Judge Lynch "remains convinced" of the constitutionality of the federal guidelines (Emmenegger at 38) while Judge Gertner sees "no question that [Blakely's] test applies to the federal guidelines. " (Mueffleman at 22). Further proof was not needed that the Supreme Court has rendered the current law in this field unintelligible, but here it is.

Download lynch_emmenegger_opinion.doc

August 5, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

More fireworks in the Eighth Circuit

Another noteworthy decision was handed down by the Eighth Circuit today in US v. Pirani, No 03-2871 (8th Cir. Aug. 5, 2004). This panel decision authored by Judge Bye advances the Blakely analysis in various ways: (1) it conducts a plain error analysis to a new Blakely claim and concludes that pre-Blakely judicial fact-finding is plain error and (2) speaks at least indirectly to the recent wandering (rebellion?) of Judge Bataillon US v. Swan (background here).

Here's some of what (two judges of) the Eighth Circuit had to say:

Though the mandate in Mooney has yet to issue, we believe the decision represents binding precedent on a matter sure to receive the attention of the Supreme Court or this court en banc, or both, in the near future. Without expressing an opinion regarding the constitutionality of the Guidelines system in its entirely, we hold Blakely extends to the Sentencing Guidelines at least to the extent they require the courts to impose punishment based on judicially found facts. Because the Blakely Court did not address the impact of its decision on the Sentencing Guidelines, we recognize all judicial opinions addressing the impact of Blakely upon the Guidelines depend on a modicum of conjecture as to what the Supreme Court will do if and when it finally addresses the issue, and all are thus part of an unsettled and yet-forming body of law....

Because [the defendant Pirani] did not object to the sentence under Apprendi in the district court, we review the sentencing decision for plain error. Even under this heightened standard, we agree with Mr. Pirani his sentence violates principles underlying the rule of Apprendi when considered in view of Blakely.... In effect, Louis F. Pirani was charged with and convicted of one crime but sentenced for another.... Furthermore, we conclude such a deprivation of Mr. Pirani's constitutional right amounted to plain error. We are mindful an error cannot be plain unless it is "obvious" or "clear under current law." Because the circuits are currently split on whether Blakely applies to the Sentencing Guidelines, it may be said the error in this case falls short of the plain error standard. Even if precedent in our own circuit precluded plain error where there is a circuit split, we would find the argument unpersuasive because it ignores the realities of current affairs....

In an equally fun read, Judge Smith writes as follow in an opinion concurring in part and dissenting in part:

At the outset, I am satisfied that the district court–in the pre-Blakely landscape–correctly sentenced Mr. Pirani.... But what of Blakely? Could the district court be correct in its application of the Guidelines, but plainly err by complying with the strictures of the federal-sentencing scheme? The effects of the Blakely decision on the ultimate constitutionality of the United States Sentencing Guidelines is anything but clear. How, indeed, can an error be plain, when as the majority eloquently notes, " . . . we recognize all judicial opinions addressing the impact of Blakely on the [G]uidelines depend on a modicum of conjecture as to what the Supreme Court will do if and when it finally addresses the issue, and all are thus part of an unsettled and yet-forming body of law"?....

As such, by its own admission, the majority is shooting at a moving target. Although we are unsure of the Court's ultimate position on the constitutionality of the federal sentencing legislation, the same cannot be said for the Court's position on plain-error review. The Court has held definitively, "[a]t a minimum, court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law." Given the unclear state of the law, as it relates to the Guidelines, I cannot agree that plain error has been shown.

August 5, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Paging habeas experts...

Though a number of courts have already spoken to Blakely retroactivity issues in various ways, I believe the new decision by Senior US District Judge Thomas J. McAvoy (NDNY) in Garcia v. US, 2004 U.S. Dist. LEXIS 14984 (NDNY Aug. 4, 2004), is the first to do a complete Teague retroactivity analysis in order to deny a federal petitioner relief on a Blakely habeas claim.

Because I am not an expert on habeas law, I am hesitant to say Garcia got the law all wrong. But, I think I see at least two major flaws in Garcia's analysis of Blakely's retroactivity:

First, Judge McAvoy starts his analysis by asserting "Blakely did not announce a new rule of law, but extended the rule in Apprendi holding." Id. at *14. I believe, if this is the case, then the Teague doctrine limiting retroactivity does not even apply. I am pretty sure Teague is a doctrine which applies only to "new" rules, not to the application of old rules. I believe this is why Justice O'Connor in her Blakely dissent said that, despite the High Court's holding in Schriro that Ring was not retroactive, "criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack."

Second, when Judge McAvoy launches into his Teague analysis, he relies very heavily on the Supreme Court's decision in Schriro to conclude "Blakely cannot be said to establish a watershed rule of criminal procedure," id. at *16-*18, and thus does not fit into Teague's second exception to its doctrine limiting retroactivity of new rules. However, as I previously highlighted here, in Schriro there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion in Schriro); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely.

Because habeas law is so complicated doctrinally, both as a consequence of Teague and its progeny and also because of Congress' restrictions on habeas in AEDPA, my analysis here of Judge McAvoy's ruling in Garcia may be all washed up. But because this issue is so important, I hope readers more knowledgeable about habeas law might use the comments for any important corrections or clarifications.

August 5, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (10) | TrackBack

So much sentencing news to report

It's another morning with broad sentencing coverage in the newspapers, and Howard Bashman has the goods here.

There are lots of interesting federal and state Blakely stories in today's collection of articles, including this account of the on-going sentencing hearing in the case of former Wisconsin state Senator Gary George. According to the article, US District Judge Rudolph T. Randa has said "he would conduct George's sentencing under the law used before the guideline system was implemented, which allowed judges to sentence defendants within wide ranges established by Congress. He said he would use the guidelines as 'a valid resource.'"

And this article discusses the remarkable decision of the US Attorney for Northern District of Indiana to seek a blanket stay of all sentencings in his district (discussed here). The article notes that his counterpart in the Southern District of Indiana "said Tuesday she did not plan to request a delay in sentencings. Susan Brooks said her prosecutors would keep in mind the high court's involvement as they considered each criminal case."

August 5, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

The "prior conviction" exception to Blakely

As a result of the decision in Almendarez-Torres, 523 U.S. 224 (1998), a "prior conviction" exception has been built into the Sixth Amendment's application in Apprendi and Blakely. That is, both Apprendi and Blakely state that its rule requiring certain facts to be proven to a jury beyond a reasonable doubt or admitted by the defendant only applies to facts "other than the fact of a prior conviction."

The theoretical soundness of this exception has been widely questioned, and Justice Thomas' own comments about Almendarez-Torres suggest that there are no longer five votes on the High Court in support of this exception. Nevertheless, the "prior conviction" exception remains good law (for now), and we are seeing courts in the wake of Blakely giving this exception a fairly broad reading.

For example, in US v. Quijada, NM 04cr0516 (D. N.M. July 28, 2004) (first discussed here), Judge James Browning concluded based on the Tenth Circuit's decision in Cooper v. US, 2004 U.S. App. LEXIS 14865 (10th Cir. July 19, 2004), that a "judge, by a preponderance of the evidence, can and should decide facts related to a prior conviction, not just the fact of conviction." Slip op. at 10 (emphasis added). Notably, the Cooper ruling does not directly address whether Blakely could be read to suggest that a jury and not a judge must make factual findings regarding the nature of a prior conviction. Stil, I think Judge Browning is right to view the Tenth Circuit's decision in Cooper as binding precedent indicating that a range of auxillary facts relating to a conviction escapes the Apprendi/Blakely rule. Here's the full decision in US v. Quijada:
Download us_v_quijada.pdf

Similarly, a few recent state cases have suggested the Almendarez-Torres "prior conviction" exception has broad reach (though without exploring in depth the precise scope of the exception). For example, in State v. Sour, 2004 Ohio App. LEXIS 3689 (July 30, 2004), not only did an Ohio intermediate appellate court suggest that Blakely does "not apply to the findings necessary to impose consecutive sentences," it also suggested that even after Blakely "the trial court also was entitled to take note of the fact that [the defendant] previously had been placed on judicial release or probation and revoked." Likewise, in People v. Ochoa, 2004 WL 1719242 (Cal. App. Aug. 2, 2004), a California intermediate appellate court held in an unpublished opinion that, due to the "prior conviction" exception, "the trial court could properly rely on the fact of appellant's status as a probationer without a jury determination in imposing the aggravated term."

UPDATE: I have been meaning to highlight this important and insightful point that attorney Bill Fick has made in the comments that merits mention here:

Apart from Booker and Fanfan, it’s worth noting that the Court earlier granted cert in a case that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely: US v. Shepard, 03-9168

Shepard involved a sentence under the Armed Career Criminal Act, which imposes a 15-year mandatory minimum for anyone convicted of being a felon in possession of a firearm who has three or more prior convictions for a “violent felony.” Shepard pleaded guilty to possession of a firearm and had been convicted multiple times for a generic crime of “breaking and entering” under state law. If the crimes involved breaking and entering a building, they would qualify as ACCA predicate offenses. If they involved breaking and entering a car or vessel, they would not. While police reports attached to the applications for state criminal complaints suggested that at least 5 convictions involved a building, those details were not reflected in the complaints themselves.

The district court did not impose the enhancement. United States v. Shepard, 125 F. Supp. 2d 562 (D. Mass. 2000). The court of appeals reversed and remanded, 231 F. 3d 56 (1st Cir. 2000), suggesting that the court could consider the police reports and any admissions the defendant made in either the state plea colloquy or federal sentencing. The district court again declined to impose the ACCA enhancement, 181 F. Supp. 2d 14, the First Circuit reversed again, 348 F.3d 308, and cert. was granted.

The “questions presented” (pre-Blakely) focus on how the sentencing judge should conduct fact-finding. Blakely obviously raises the question of whether it should, in fact, be a jury issue.

August 5, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (29) | TrackBack

August 4, 2004

New USSC Chair officially in

As detailed in this press release, President Bush has now officially appointed US District Court Judge Ricardo H. Hinojosa to be the new chair of the US Sentencing Commission. Perhaps unsurprisingly in light of the USSC's silence to date (background here), Judge Hinojosa's brief remarks in the press release do not make mention of life after Blakely.

August 4, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1) | TrackBack

Stanford's exciting plans

I noted earlier here on-going efforts to figure out the mixed-up post-Blakely world. An exciting "Roundtable" being planned by Professor Robert Weisberg for Stanford Law School should be added to the events list. I feel very fortunate to be involved in this project, which Professor Weisberg has described in this way:

Stanford Law School will host a timely event, The Future of American Sentencing: A National Roundtable on Blakely, on Oct. 8-9, 2004. Stanford Law School will convene an assembly of many of the leading national experts on sentencing law and policy for a public discussion of the whole range of post-Blakely issues. Through a series of presentations and panel discussions, and culminating in a set of working papers, the Roundtable will consider such broad themes as whether the Court has offered a coherent rationale for the relationship between the Sixth Amendment and sentencing; what types of types of judicial, legislative, and administrative remedies will satisfy Blakely; and the more aspirational question whether Blakely might ultimately prove a boon to the widespread national movement for sentencing reform that has evolved in the wake of, and in substantial tension with, the advent of modern guidelines sentencing.

This event will also be the occasion for the launching of a new Center for Criminal Justice at Stanford Law School, which will integrate research, public events, and clinical education in the criminal field. Legal scholars so far lined up for the Blakely event include: Douglas Berman, Stephanos Bibas, Frank Bowman, Steven Chanenson, Margareth Etienne, Richard Frase, Nancy King, Susan Klein, Marc Miller, Kevin Reitz, Kate Stith, David Yellen, and Ronald Wright. These scholars are among the most respected and prolific commentators on American sentencing law, and many of them have also served as advisors, consultants, and drafters for some of the most important sentencing innovations in the state and federal systems.

The Roundtable will also include Jeff Fisher, the winning counsel for Blakely in the Supreme Court, Deputy Solicitor General Michael Dreeben, who represents the United States on these issues, and other lawyers involved in the Blakely litigation, as well as jurists and commissioners involved in sentencing reform in such Blakely-relevant states as Kansas, Minnesota, and California.

More details on both the conference and the new Center will be available soon. Meanwhile, for further information, contact Prof. Robert Weisberg at weisberg@stanford.edu

August 4, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

Confusion? Chaos? Anarchy? We need a new noun!

We have already seen Blakely turned into an adjective in talk of "Blakely-izing" indictments or trials, but it may be time for Blakely to enter the lexicon as a noun to describe mass confusion and uncertainty in the law — perhaps in the way Fred Merkle's boner added to our vocabulary nearly a century ago. (Fans and non-fans can read all about Merkle and his place in baseball history here and here and here).

The latest evidence of the chaos arising in the wake of Blakely come from two sources: (1) an amazing decision by Judge Joseph Bataillon from the District Court of Nebraska in US v. Swan, 2004 U.S. Dist. LEXIS 14883 (D. Neb. Aug. 2, 2004), and (2) a peculiar paragraph from the Fourth Circuit in US v. Smith, 2004 WL 1729821 (4th Cir. Aug. 3, 2004).

1. Judge Bataillon's opinion in Swan could launch a thousand law review articles, so for now I can only give the highlights. Let me just quote (with citations omitted) from the decision itself:

[I]n reliance on Blakely, the Eighth Circuit Court of Appeals has now found the sentencing guidelines wholly unconstitutional. United States v. Mooney.... Under principles of stare decisis, decisions of the Eighth Circuit Court of Appeals have precedential value and must be followed by the district courts within the Eighth Circuit. Nevertheless, the court finds it is not bound to follow Mooney at this time, since the appeals court decision is not yet final.

Stare decisis is similar to the doctrines of res judicata and collateral estoppel, which require a final judgment, although stare decisis does not draw its force from the policy that protects final judgments. Instead, stare decisis stems from the principles of stability and equal treatment underlying the orderly development of legal doctrine. In circumstances such as these, the court finds that principles of stare decisis require restraint in the use, as precedent, of a decision that is not yet final.

[U]ntil the mandate in Mooney issues, this court is not obliged to follow the dictates of the Mooney decision. Until such time as the Mooney decision becomes a final judgment accorded precedential effect, this court is compelled to apply its own understanding of the Supreme Court’s holding in Blakely. This court remains convinced that the proper reading of Blakely would allow a court to follow the guidelines as long as factors increasing the "maximum," as defined in Blakely, are charged in the indictment and either admitted or submitted to a jury (or the court if a jury is waived) under the standard of proof beyond a reasonable doubt. See United States v. Terrell, No. 2004 WL 1661018 (D. Neb. July 22, 2004).

The court believes the Eighth Circuit’s adoption of U.S. District Judge Cassell’s rationale as set forth in Croxford, 2004 WL 1521560 at *12-13, is untenable and may not withstand scrutiny on review.

There is a lot more important reasoning in the Swan opinion, but this discussion of stare decisis and the statement that "this court is compelled to apply its own understanding" of Blakely leaves me (pleasantly) gobsmacked.

2. Though less startling and clearly less thoughtful, perhaps no less important is this footnote from a per curiam Fourth Circuit decision in Smith. Issued the day after the Fourth Circuit's en banc order in Hammoud telling its district courts to follow the federal guidelines (while also recommending the imposition of backup sentences (background here)), here's what the Fourth Circuit's Smith decision says in a concluding footnote:

In a motion to remand filed July 16, 2004, Smith, through counsel, requests that her case be remanded so that the district court can have the opportunity to rehear the sentencing issue in her case in light of Blakely. Because we vacate Smith's sentence here and remand for resentencing, we leave to the district court in the first instance the application of Blakely, if any, in the determination of Smith's sentence. Accordingly, the motion to remand, opposed by the government in its response filed July 23, 2004, is denied as moot.
Smith, 2004 WL 1729821 at n.3 (emphasis added). Huh??

August 4, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack


In the wake of Blakely, I have lately been recalling childhood days when a simple shout of "Do-over!" could remedy mistakes on the playground. (I also recall when some clever kids started shouting a "No Do-overs!" prohibition at a game's outset; future lawyers, no doubt.). These thoughts arise because the potential number of sentencing "do-overs" after Blakely is mind-boggling. Even putting aside questions of retroactivity, the Acting SG has already said that many of the "thousands of sentencings" currently in the works "may have to be redone once [the Supreme] Court settles the applicable law." Booker/Fanfan Reply Brief at 2 (background here)

It is obviously with an eye to limiting the number of "do-overs" that the Fourth Circuit in its order in Hammoud recommends announcing a "backup sentence" (details here), and the same impulse obviously has influenced Judge Cassell and others district judges to announce backup or alternative sentences during this time of uncertainty. But, as I started to discuss here, I am not sure there is anything lower courts can do now to prevent the need for future do-overs. First, it is possible (probable?) that the Supreme Court will apply Blakely to the federal guidelines in a novel way so as to create applicable sentencing rules that no one has heretofore thought to apply. Second, I think every defendant sentenced during this period of great uncertainty has an arguable claim that due process requires re-sentencing (perhaps with the submission of new evidence) once the legal rules are clarified. Though courts, for reasons of "judicial economy," will likely resist allowing too many do-overs, questions about who will get resentenced (and how and when) will all have to be litigated.

As evidence that lower courts are going to resist "do-overs" however they can, we get this per curiam opinion in US v. Levy from the Eleventh Circuit, which seems to seriously limiting opportunities to raise Blakely issues even while a case is still on direct appeal. For a host of legal and policy reasons, I find the Levy decision's waiver conclusion quite troubling (and I hope readers might use the comments to provide more insights). Here are the highlights from Levy (or lowlights if you are a defendant or defense attorney):

Appellant Levy’s Petition [for Rehearing] seeks to raise a new sentencing issue based on Blakely... Levy’s Petition concedes that his initial brief on appeal did not claim that he had a Sixth Amendment right to a jury trial on his federal sentencing enhancements.... In denying Levy’s Petition, we do not entertain this new issue because Levy did not timely raise it in his initial brief on appeal. This Court repeatedly has refused to consider issues raised for the first time in a petition for rehearing....

To allow a new issue to be raised in a petition for rehearing, or a supplemental brief, or a reply brief circumvents Federal Rule of Appellate Procedure 28(a)(5), which requires that an appellant’s initial brief must contain "a statement of the issues presented for review" [and] our practice has been longstanding. As we have explained, the rule requiring that issues be raised in opening briefs "serves valuable purposes, as do all of the procedural default rules, which is why we regularly apply them."....

For the reasons discussed above, we conclude that Appellant Levy has waived his Blakely-type claim by not raising it in his initial brief on appeal. Accordingly, Levy’s Petition for Rehearing is denied.

August 4, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines | Permalink | Comments (7) | TrackBack

Insights, commentary and help from many sources

A few days after Blakely was handed down, Judge Joe Goodwin implored academics and others to contribute to post-Blakely conversations about the future of sentencing reform (details here). I am pleased to report that many institutions have started to heed this call in many ways.

For example, the Vera Institute of Justice is sponsoring a discussion next week with Professor Frank Bowman (author of the famed Bomwan proposal) entitled "Does Blakely Mean the End of the Federal Guidelines?" Details about the program can be downloaded here:
Download vera_bowman_event.pdf

Similarly, as Jason Hernandez noted here, the Cato Institute will be hosting on Thursday, August 26, 2004 a program entitled "Blakely's Wake: Should the Federal Sentencing Guidelines Be Saved or Scrapped?". This link here provides more details of the headliners slated to be involved in this event.

And, as reported in Ninth Circuit Chief Judge Mary M. Schroeder's State of the Circuit Speech a few weeks ago (available here), the biggest federal Circuit is also on the job:

The major new project we hope to get under way this year is sentencing. We were unable to get started last year because of budgetary woes, but we can’t wait any longer. This delay, it turns out, has nevertheless been fortuitous. The Supreme Court’s decision in Blakely overturning a well-accepted state court model for sentencing has cast doubt about the constitutionality of the federal system, and, in the e-mailed words of the distinguished judge who has agreed to chair this project for the Ninth Circuit, “knocked our ideas about sentencing into a cocked hat.” That judge, I am delighted to announce today, is District Judge Charles Breyer of the Northern District of California. This very important project will go forward in collaboration with the American Law Institute, which has its own sentencing project under way aimed at state courts. I look forward to working with Chuck in putting together a group of lawyers, judges, academics and consultants to move forward under his leadership. Sentencing reform is now essential, and complete restructuring may well be the theme.

(Of course, according to this report at CrimLaw, the Ninth Circuit's ultimate recommendations may not be immediately adopted across the country.)

It also merits mention in this setting that many groups have already started trying to figure out the post-Blakely world. For example, the NACDL had a Blakely panel at its meeting in San Francisco last week entitled, "Addressing the Implications of Blakely on State and Federal Sentencing Guidelines." The star-studded list of panelists were Jeffrey Fisher, Judge Nancy Gertner, Carmen Hernandez, Peter Goldberger, Steve Kalar, and Ron Weich, and details about obtaining an audio recording of the event can be found at the NACDL's Blakely page here.

Also, the Constitution Project sponsored last week the first meeting of its new sentencing initiative, which brought together federal and state judges, congressional staff, representatives of the USSC, DOJ, bar associations, NACDL, NAAG, ABA, and five state sentencing commissions (Pennsylvania, Kansas, Minnesota, Maryland, and DC), as well as a variety of other criminal justice and civil rights policy and advocacy organizations. UPDATE: Here's a new link to the project.

The meeting included information-sharing on federal and state litigation and legislative efforts, and included a review of what Congress and state legislatures are doing in response to Blakely, the possible outcomes of further Supreme Court review, and the respective roles of legislatures, sentencing commissions, judges and juries in determining sentences post-Blakely. The Constitution Project reports that it will likely convene the group again in September and that it is also assembling a smaller emergency working group to begin crafting recommendations for legislatures and judges addressing Blakely. The Initiative is in great hands, being guided by Professors David Yellen and Frank Bowman and Ronald Weich.

August 4, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

August 3, 2004

Evening media round-up on Blakely

The news and commentary on Blakely no longer takes even a night off. The Washington Post has this detailed article discussing the Fourth Circuit's intriguing order in Hammoud. And I had a chance to contribute a few thoughts at the end of a well-done discussion of federal sentencing on NPR's Talk of the Nation today, which can be accessed here. In the NPR segment, David Savage, Supreme Court reporter for the LA Times, and James B. Comey, U.S. Deputy Attorney General (and author of the famed Comey memo) were particularly effective, and the questions from callers reflected well on the insightfulness of NPR's audience.

In noteworthy state news, this article discusses a Minnesota sex offender's case has been sent back for resentencing. The article also reports that:

The Minnesota County Attorneys Association and the Minnesota Urban County Attorneys Board [have] recommend[ed] procedures to minimize overturned sentences. "The whole validity of sentencing guidelines is an issue right now," said [County Attorney Doug Johnson].

This article also from Minnesota discusses the same case, but also provides these few details about the forthcoming report from the Minnesota Sentencing Guidelines Commission:
On Friday, Minnesota's Sentencing Guidelines Commission will present a report to Gov. Tim Pawlenty that lists short-term actions the state can take to meet the demands of the federal court ruling. Barbara Tombs, the commission's executive director, wouldn't divulge the recommendations on Tuesday. A more comprehensive report should be done by late September, she said.

Last but not least, Jason Hernandez at the Blakely Blog has links here to a number of good Blakely articles I missed in my morning media coverage. Tony Mauro's piece here from Legal Times is particularly thoughtful.

August 3, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

The PROTECT Act strikes back?

I have just received a full draft of a very interesting article that is now scheduled to run in the October 2004 issue of the Federal Sentencing Reporter. In the draft article you can download here, Villanova law professor and FSR Editor Steve Chanenson argues that Congress's meddling with the federal guidelines through the PROTECT Act (and particularly its infamous Feeney Amendment) may, after Blakely, undermine Congress's apparent interest in preserving the existing guidelines.

Here's a taste of what Professor Chanenson has to say (paraphrased from our exchanges about the piece):

When Congress — with the support of DOJ — passed the PROTECT Act last year, it was trying to further control the USSC and federal sentencing generally. With reduced departure grounds, Congressionally-revised Guidelines, and a constrained Commission potentially devoid of judges, Congress seemed to have achieved its goal, at least in the short run. However, as a factual matter, the PROTECT Act blurs the administrative versus legislative guideline distinction that DOJ and the USSC now suggest may save the federal guidelines from Blakely's reach. Thus, through the PROTECT Act, Congress and the Department may find themselves hoist on their own petard.

Download chanenson_protect_blakely_draft.doc

August 3, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

How the Blakely saga would get resolved in Hollywood

Because of how complicated and messy the post-Blakely world has become, I think it will be very difficult for the Supreme Court to resolve all (or even most) of the on-going sentencing controversies through just the Fanfan and Booker cases. It is more than thirty years since the Supreme Court radically disrupted capital sentencing procedures in Furman v. Georgia, and we are still trying to work out all the kinks of that ruling. (If you are interested in the parallels, a few years ago I compared Apprendi to Furman in Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 37 Criminal Law Bulletin 627 (2001).)

In other words, I expect that it will take many years and many decision from the Supreme Court in Washington DC to resolve the on-going Blakely saga. But late last night it dawned on me that the folks on the other coast in Hollywood would likely have a much easier way to deal with all this:

CREDITS: Opening scene from the new fall show SCOTUS, brought to you by the same writing staff that gave the world Season Eight of Dallas:

Cut to a scene of Justice O'Connor waking up at her desk after working late into the night on an important opinion. She starts wandering around the corridors of the Supreme Court and discovers that everyone has gone home for the night. She then hears the sound of running water coming from Justice Scalia's chambers.

Justice O'Connor wanders in to Justice Scalia's chambers to discover Justice Scalia in a bathrobe apparently fresh from a shower. Justice Scalia casually replies, "Sandy, I'm glad you are still here. You will be pleased to know I finally gave up trying to write an opinion for the Court in Blakely. We both know in my heart I am a formalist, but I'd ultimately rather be called a pragmatist than an activist. Thus, I have decided to vote with you on the Blakely case. Indeed, I can't believe I was seriously considering extending Apprendi to guideline cases. What a mess that would create."

Stunned by what she is hearing, Justice O'Connor looks to a day calender on a nearby desk and discovers the date is June 23, 2004!! Slowly getting her bearings, she comes to realize that the ruling she feared in Blakely, and the Number 10 earthquake it set off in federal and state courts, was all just a bad dream.

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

Ladies and Gentleman, stop your engines...

I find it a bit humorous that the same state that brings us the Indy 500, called "the greatest spectacle in racing," now has a US Attorney urging the federal sentencing system to shift into neutral until the Supreme Court rules on Blakely's applicability in the federal system.

Marcia Oddi over at the Indiana Law Blog effectively provides the basic details here of the "Motion by the United States for en banc Determination by the District Court to Stay All Scheduled Sentencing Hearings Pending Resolution By the United States Supreme Court on the Application of Blakely to the Sentencing Guidelines." And here is the link to the motion itself and its supporting memorandum.

Here are a few highlights from US Attorney Joseph Van Bokkelen's fascinating stay motion:

Federal sentencing has reached a crisis. To borrow Judge Easterbrook’s word from his Booker dissent, the entire federal criminal process is "discombobulated.”... There are any number of sentencings currently pending in the Northern District of Indiana. The government respectfully requests that all such sentencings be stayed pending the apparent expedited resolution by the Court.

The government notes that in the Motion to Expedite before the Supreme Court, reference is made to the fact that the District Court for the Southern District of Ohio has apparently entered a 30 day stay on all sentencings in cases that could be affected by Blakely. A similar order could be fashioned in this district, i.e. an initial 30 day stay to be then reviewed to assess developments in the Supreme Court. The government acknowledges that a request for an en banc order is rare and may indeed be the first such request in this district. Other districts have employed an en banc procedure to address issues of fundamental importance and commonality in cases pending before its district judges....

The government respectfully suggests that all participants in the criminal justice process and the important interests of the public in some finality to that process will be well served by staying all sentencings until this issue is resolved. [FOOTNOTE 6: The government recognizes that if the Supreme Court does not act reasonably soon, cases will have to proceed. It appears however that the Court may act very soon and that possibly by this fall there will be clear guidance. This court could fashion an order, for example, staying sentencings for a fixed period to be re-evaluated at the end of that period for any developments.] There is just too much uncertainty to proceed at this time. Proceeding to sentencing may result in different judges reaching different decisions, thereby treating defendants differently. The Supreme Court’s decision might require any number of sentencings to be redone, thereby straining judicial, governmental and defense resources. Everyone will be well served by waiting until we have clear guidance from the Supreme Court. At that time sentencings can proceed with certainty and finality.

Commentary: Like everything else in this crazy Blakely world, this motion is very sensible and very questionable. The government makes a sound case for putting everything on hold, but can all sentencings wait months for a Supreme Court decision? The motion suggests "an initial 30 day stay," but we now already know that it will be more than 60 days before the Supreme Court even hears Fanfan and Blakely. And an actual ruling by the Court likely will take another month or more. (Recall that the Supreme Court just last term returned early to hear argument in early September concerning challenges to new campaign finance laws, but the Court was not able to hand down an opinion until more than three months later in mid December.)

For defendants indisputably facing a prison sentence of many years, a sentencing delay of several months may not be a big deal. But, according to these USSC data, dozens of defendants in the Northern District of Indiana in a typical year receive only probation or a sentence of less than a year. Placing these folks in sentencing limbo for many months seems potentially problematic (although I suppose every sentence is in some form of limbo no matter how courts proceed these days).

Further, the Blakely decision has not only raised questions about sentencing procedures, but also questions about indictment and trial practices. It is unclear from the motion whether the US Attorney also contemplates putting all criminal cases on hold. The arguments for staying sentences also would support staying all trials, too. Is this what the US Attorney really wants? Has this plan been blessed by Main Justice? Might it be blessed by defendants and defense counsel? So many questions, so few answers in this post-Blakely world.

August 3, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Morning media blitz

As previously predicted, the Supreme Court's cert. grants have ensured that the fourth estate is really paying attention to Blakely. Proof of this comes from the fact that Howard Bashman over at How Appealing needed two posts, here and here, to collect all the recent Blakely stories.

Some highlights from these articles include an observation in this Boston Globe article from Fanfan's lawyer Martin Weinberg, who said "that the Supreme Court's decision to take the two cases is expected to 'freeze' sentencing in federal courts nationwide, because judges and lawyers will want to see what the court does before relying on the federal guidelines." Showing Weinberg's insight, this interesting article discusses the recent decison by Indiana US Attorney Joseph Van Bokkelen to ask "the U.S. District Court judges in Hammond, South Bend and Fort Wayne to halt all scheduled sentencings until the U.S. Supreme Court rules on the fairness of current sentencing guidelines." According to the article, "defense lawyers whose clients would be affected by a sentencing delay [have been asked] to comment on Van Bokkelen's petition by Aug. 12."

I was fortunate to have a chance to speak with Melissa Block of NPR about Blakely issues for Monday's broadcast of All Things Considered. Here's a link to that story.

August 3, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Judicial economy?

Though it is hard to comment at length about what the Fourth Circuit is doing until we see the en banc court's opinions in US v. Hammoud (details here), I am bemused by the order which, after instructing district courts "to continue sentencing defendants in accordance with the guidelines," then recommends that district courts "also announce, at the time of sentencing, a sentence pursuant to 18 USC 3553(a), treating the guidelines as advisory only." This recommendation is purportedly in "the interest of judicial economy."

Though I am hardly an expert on economics (or even law and economics), I am pretty sure this recommendation will not in fact be very economical. First, it suggests that district judges take the time to impose — and, I would hope, justify on the record — two sentences in every case from now until the Supreme Court rules. Though this might not be a complete doubling of sentencing efforts in the short-term, it does entail more work (perhaps a lot more work) for district judges than just imposing a guideline sentence. And this extra work will be wasted work if the Supreme Court (somehow) finds a way to sustain the federal guidelines even after Blakely.

I suppose the idea is that this extra work will be worthwhile if the Supreme Court invalidates the federal guidelines. However, that notion is necessarily premised on the highly debatable assumption that if the federal guidelines are found unconstitutional, then the remedy will be to impose sentences "pursuant to 18 USC 3553(a), treating the guidelines as advisory only." Though a number of courts have declared the guidelines unconstitutional as a whole and in turn only advisory, I believe only the now-vacated Sixth Circuit panel opinion in Montgomery has held that 18 USC 3553(a) remains legally operative and binding after a finding that the guidelines are unconstitutional. Only if the Supreme Court slices up the severability question precisely this way — in other words, only if the Supreme Court agrees with the now-vacated Sixth Circuit panel opinion in Montgomery, an opinion that the active judges of the Sixth Circuit clearly felt should not stand — will the "recommended" second sentence be of any value whatsoever.

Moreover, even if the Supreme Court does slice up the severability question precisely this way, I presume all the sentences imposed in the Fourth Circuit pursuant to the order in US v. Hammoud will have to be re-done. Technically, if the Supreme Court find the guidelines unconstitutional, all the sentences imposed with the Fourth Circuit under the old guidelines will be improper and new sentences will have to be imposed. Perhaps someone believes that, at that point, the "recommended" second sentence can be readily substituted for the improper guideline sentence. But, if I am defense counsel (or even a prosecutor) displeased with the previously announced second sentence, I would argue that a whole new sentencing proceeding is now required in order to properly impose a new sentence under the (now clarified) new sentencing rules.

In short, if the guidelines are upheld, the announcement of a second sentence is pointless; if the guidelines are struck down, the announcement of a second sentence is highly unlikely to eliminate or reduce the need for a sentencing "redo" in every case.

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

August 2, 2004

The Fourth Circuit speaks!!!

This just in from one of my helpful readers:

The Fourth Circuit, mere hours after hearing en banc argument in US v. Hammoud, holds that it will not overturn the Federal Sentencing Guidelines in that case. It has issued an order to that effect, with opinions to follow later. District courts are also instructed ("recommended") to issue alternative sentences, in the event the Guidelines are not mandatory. I have not seen a link to the order yet, but that's the gist. The order does indicate that there will be dissenting opinions as well.

Details and commentary to follow as more information come in. In the meantime, here is an interesting article describing the argument before the Fourth Circuit today.

UPDATE: Here is the full text of the order from the Fourth Circuit today:

After oral argument was heard by a panel of judges, a majority of the judges in active service voted to hear this appeal en banc. The en banc court heard argument on the matter on August 2, 2004. According to the vote of a majority of the en banc court constituted to hear this appeal, we affirm the judgment and hold that Blakely v. Washington, does not operate to invalidate Hammoud's sentence under the federal sentencing guidelines. Therefore, district courts within the Fourth Circuit are hereby instructed to continue sentencing defendants in accordance with the guidelines, as was the practice before Blakely. In the interest of judicial economy, however, we recommend that district court within the Fourth Circuit also announce, at the time of sentencing, a sentence pursuant to 18 USC 3553(a), treating the guidelines as advisory only. Majority and dissenting opinions will follow in due course. Entered at the direction of Chief Judge Wilkins, with the concurrence of the court.

August 2, 2004 in Blakely in Appellate Courts | Permalink | Comments (2) | TrackBack

Updating the Blakely scorecard

Tahlia Townsend was kind enough today to pass along her "tally of Blakely cases to date, prepared for the Federal Defenders in Manhattan." The document, which you can download here, organizes the cases in the form of string-cites for various key propositions — e.g., "Blakely Does Not Apply to U.S.S.G. Enhancements" or "Blakely Applies to U.S.S.G. Enhancements"; "Sentencing juries endorsed / criticized"; etc.

I have not had a chance to review the document closely, but it looks accurate and up-to-date. In other words, though I cannot personally vouch for the document's accuracy, I can say it seems like an extremely helpful resource.
Download latest_blakely_scorecard.pdf

August 2, 2004 in Blakely Commentary and News | Permalink | Comments (6) | TrackBack

Reading SCOTUS tea leaves

Lyle Denniston over at the SCOTUSBlog has this brief commentary on today's cert. grants in Booker and Fanfan. Lyle says "The Court implicitly rejected the argument of criminal defense lawyers to take a slower approach to the constitutional questions, and their separate argument that the questions posed by the government petitions were too narrow in scope."

Though I agree that the decision to take the Acting Solicitor General's suggested cases is a bit of a blow to the defense, I am inclined to view the decision to have argument on October 4, rather than the SG's requested earlier date of September 13, as at least a small (perhaps a very small) endorsement of the defense's "go slow" message (background here). Moreover, it is important not to lose sight of the fact that the SG, in his reply papers (available here), made important concessions about the ability for the High Court to reach certain key issues and questions in the context of considering Booker and Fanfan.

Thus, in the end, I come away from the cert. grants with the view that the Justices realize how important it is for the Court to clarify Blakely's meaning ASAP (and, how could they not, given these assertion by the SG), but also realize that a rush to judgment may only muddy the waters. Thus, the prudent course now is for the Court to accept the cases that the SG is pushing and then take enough time to work through all the issues.

As noted before, the High Court did not speak to the State of Washington's petition for rehearing or the Second Circuit's certified questions. In addition, I do not believe the Court acted in any way on the petitions for cert. being pushed by the defense team. Though I do not know the intricacies of Supreme Court practice or custom, I would assume the Court has the power to take another Blakely case and/or to adjust the questions presented doing so seemed important later.

Among the interesting questions which now follow are (1) who will write amicus briefs, and (2) what will they say? Will the US Sentencing Commission officially weigh in? Will state sentencing commissions? Will Congress? How about state legislatures or state AGs? And though I would expect a number of public policy groups to file amicus breifs, I am going to be very interested to see what positions different groups stake out.

August 2, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Help is on the way(?)

With apologies to John Kerry for borrowing his slogan, it is official now that the Supreme Court will be returning to the Blakely world, and doing so soon. Of course, since the Court is responsible for starting the Blakely mania, and because so many critical Blakely questions now need answers (details here), no one should expect the new cases to resolve all the uncertainty that now surrounds sentencing law and policy. Nevertheless, any additional guidance on the meaning and consequences of Blakely should be very helpful for all the lower courts, legislatures, sentencing commissions and litigants struggling to make sense of the post-Blakely world.

Interestingly, the Supreme Court this morning decided to accept for review exactly what the Acting Solicitor General urged by granting cert. in Booker and Fanfan on the questions presented in those petitions. (Perhaps this is a first sign that the jurisprudence in the post-Blakely world will not be quite as pro-defense as many in the defense bar are hoping.) The Court did not follow the SG recommendation to schedule argument as early as September 13; argument is set for the afternoon of October 4. The Government's brief will be due Septmber 1, Respondents' briefs due September 21, and the Government's Reply due September 27.

You can get some of the details over at the SCOTUSBlog, and I am sure lots of commentary will soon follow here, there and elsewhere.

UPDATE: Set forth below is the full text of the Supreme Court's grant (and notably, on today's order list from the Court, I see no mention of the State of Washington's petition for rehearing or the Second Circuit's certified questions):
The motion of the Acting Solicitor General for leave to file a reply brief in excess of the page limits is granted. The petition for a writ of certiorari is granted, and the petition for a writ of certiorari before judgment is granted. The cases are consolidated, and a total of two hours is allotted for oral argument. The brief of petitioner is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednesday, September 1, 2004. The briefs of respondents are to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Tuesday, September 21, 2004. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, September 27, 2004. Oral argument is set for Monday, October 4, 2004.

August 2, 2004 in Blakely in the Supreme Court | Permalink | Comments (2) | TrackBack

A calm start to a big day

After a weekend with a lot of interesting and important media coverage of the Blakely story (details here and here), the Blakely news this morning is limited. However, you can still find this article providing broad insights about the Blakely decision and about how it is playing in Peoria.

Of course, the day seems unlikely to stay calm. Today there is already scheduled an en banc hearing of the Fourth Circuit to consider Blakely issues, and I also believe the Minnesota Sentencing Guidelines Commission is due to release its short-term report on Blakely. And, most court watchers are predicting that the Supreme Court will make the biggest news this morning by granting cert. to consider the effect of Blakely on the federal guidelines. In other words, stay tuned.

August 2, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

August 1, 2004

Blakely in the blogsphere

Marcia Oddi over at the Indiana Law Blog has completed Part II of her helpful posts reviewing the status of Blakely in the Seventh Circuit and in Indiana state courts, which is available here. And Ken Lammers over at CrimLaw has usefully recapped his thoughts and posts on Blakely here.

And now all Blakely fans and junkies (myself included) should get some rest, because I suspect tomorrow may be a big Blakely day.

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

Read all about Blakely

The Sunday papers have a lot of Blakely coverage, and I am ever thankful that Howard J. Bashman over at How Appealing continues do a great job assembling the headlines here. His hard work allows me to focus on providing some of the highlights.

An absolute must-read this morning is this (long) article in The Boston Globe by Emily Bazelon, Senior Editor of Legal Affairs magazine. The article is the most comprehensive and insightful piece of journalism about sentencing reform that I have seen since Blakely was handed down, and it includes a fascinating focus on Justice Stephen Breyer's place in the eye of all the sentencing reform hurricanes. It ends with this trenchant post-Blakely observation: "Breyer will have to decide whether to concede that his vision of federal sentencing is dead — and whether to cast his future votes in a way that makes the best of the new reality."

Also worthy of attention and praise is this piece from The Denver Post in which law professor Robert Hardaway astutely notes that military defendants and civil litigants have long had access to juries:

Military courts ... have traditionally applied the Sixth Amendment. Indeed, the sentencing phase is considered equal, if not greater in importance, to the guilt or innocence phase. Punishments are imposed not by the trial judge considering hearsay or opinion evidence produced by a probation officer, but rather by a jury (called a court panel) after a full hearing at which all the rights of due process are accorded the defendant and the rules of evidence are applied. In civil cases, of course, courts routinely extend to parties the right to a jury not only during the liability phase but also during the damage phase of a traditional tort or breach of contract case.

The piece in The Denver Post also includes this cool graphic, and closes with this dramatic assertion: "The high court's decision in Blakely redresses one of the blackest marks in the history of American criminal justice and restores to civilian defendants a precious constitutional right long granted to an accused in the military courts."

Also of interest is this article about new indictment practices after Blakely, and this article about the post-Blakely world in Virginia (which cites fellow blogger Ken Lammers of CrimLaw).

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