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October 9, 2004

Waiver: a Blakely "briar patch"

Some of today's panels at the Stanford Roundtable conference on Blakely (recently discussed here) will be covering plea bargaining and other post-Blakely litigation realities, and I am especially eager to hear discussion about waiver. Recall that, as detailed here, the Federal Public Defender in the Northern District of Texas was moved to file an amicus brief Booker and Fanfan simply to spotlight some of the issues surrounding the possibility and legalities of Blakely waivers.

Additional proof of the importance of these issues come from this interesting law.com article discussing disputes over the wording and usage of Blakely waivers in the California state courts. Here's a few snippits from a fascinating article:

San Francisco prosecutors have recently started using so-called Blakely waivers in felony plea bargains.... But across the board, deputy public defenders are refusing to sign. If necessary, they'll offer clients an alternative written by their office, said Public Defender Jeff Adachi....

[P]rosecutors across the state have started demanding Blakely waivers. Under San Francisco's, a defendant would agree to have a judge determine any aggravating fact under existing California statutes and court rules.

Though Blakely waivers may not have much of an impact in plea bargains where a defendant agrees to a prison term, probation deals present more of a battleground. If the client agrees to a Blakely waiver in such cases, Adachi said, "we're setting them up to receive the aggravated sentence when they violate probation."

Adachi said that with his form, the DA would have to let defendants know up front which aggravating factors they face if they violate probation. The DA's "form goes so far beyond what a Blakely waiver requires," Adachi said. Adachi's version specifies a judge would have to determine aggravating factors beyond a reasonable doubt -- not by a preponderance of the evidence.

The burden of proof issue flagged in the article is especially interesting since there is some real question whether a defendant can in fact "waive down" the burden of proof. (See generally the discussion of these issues here and here.)

Finally, it is worth noting that Judge Posner at the end of his opinion in LaGiglio discussing bail issues (detailed here) explained that the district judge might need to consider the government's claim that the defendant "waived or forfeited reliance" on Blakely/Booker issues or could perhaps avoid having "to enter that briar patch." Though such avoidance might be possible in LaGiglio, many courts indisputably will soon have no choice but to go deep into the waiver briar patch (or should it be "Breyer patch").

October 9, 2004 in Blakely Commentary and News, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

More fun(fun) from judge who decided Fanfan

Proving that certain judges have all the fun, US District Court Judge Brock Hornby — who is already famous for being the judge who sentenced Fanfan — earlier this week addressed in US v. Perez, 2004 U.S. Dist. LEXIS 20133 (Oct. 5, 2004), a request of a defendant in a drug case "who wants to plead guilty to the charge of conspiracy, but wants a jury trial on the drug quantities and on the scope of the conspiracy."

The whole opinion in Perez is a great and significnt read. Here are just a few highlights:

As a result of Blakely, the active judges in this District have ruled that a defendant is entitled to a jury trial and proof beyond a reasonable doubt as to all sentence-enhancing factors except criminal history. But there remains widespread disagreement and uncertainty across the country on what Blakely demands for federal sentences....

Since "an indictment must set forth each element of the crime that it charges," Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998), a guilty plea traditionally admitted all the "elements" of the crime. A defendant had to plead guilty to the entire offense or not at all, and a court could not, over the government's objection, accept a plea to a lesser included offense.... The defendant here says that pleading guilty to conspiracy covers the "elements" in this case. I do not believe that "scope" of the conspiracy can be extracted from the elements of the offense as that term has been used conventionally and therefore I would not entertain a partial plea that contested the scope of the conspiracy. Drug quantity is more difficult. Before Apprendi we were certain that drug quantity was merely a sentencing issue, not an essential part of the conviction. Apprendi taught us that where drug quantity elevated the statutory maximum sentence, it had to be proven beyond a reasonable doubt to the jury. But judges could still make all other drug quantity determinations at sentencing. In the post-Blakely world, however, all sentence-enhancing factors (other than criminal history) must be proven to a jury beyond a reasonable doubt. Have they thereby become "elements of the offense"? Since drug quantity now must be proven to a jury beyond a reasonable doubt regardless of what it is called, the old debate over whether it is an "element" seems to have lost significance. It certainly does not help resolve the issue before me. Therefore, I consider other factors.

It will be difficult for the government to try the issues of conspiracy scope and drug quantity without simultaneously presenting a good deal of evidence about the conspiracy itself. Permitting a plea of guilty to the conspiracy, but not the scope or quantity, therefore, will produce disputes at the resulting trial over what is material versus what is unduly prejudicial evidence. The appellate cases generally have said that defendants cannot stipulate their way out of the government's right to try a case the way it was charged.... This background counsels in favor of sustaining the government's objection to the partial plea as it affects both scope and drug quantity.

I cannot see any prejudice to the defendant in declining his partial plea. The primary benefit to the defendant in the proposed partial plea is the possibility of obtaining a reduced sentence for acceptance of responsibility under Guideline 3E1.1. That of course will depend on what the jury and I conclude about relevant conduct after trial. But if the defendant elects at trial to admit the conspiracy (as he proposes to do in his partial guilty plea), and contests only the drug quantity and scope of the conspiracy before the jury, he should be able to make the same arguments about acceptance of responsibility to me at sentencing. True, there may be somewhat more work for his lawyer in preparing for a broader trial (practically speaking the dimensions of the trial will probably not vary a lot) but, since the defendant has a court-appointed lawyer, this factor is an expense to the taxpayer, not the defendant.

After all is said and done, a defendant has a right to a jury trial, but he has no absolute right to plead guilty. Santobello v. New York, 404 U.S. 257, 261-62 (1971). "A court may reject a plea in exercise of sound judicial discretion." Id. at 262. I conclude that the defendant cannot enter a partial plea of guilty while reserving the issue of conspiracy scope for a jury trial. The ability to reserve drug quantity is a closer question. But I also conclude in the uncertain state of post-Blakely federal sentencing that the prudent course is to reject the partial plea on that score as well.

October 9, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Blakely: the academic gift that keeps on giving

I cannot resist the urge to end an amazing day at the Stanford Roundtable conference (details here and here) with a few very general reflections about the event and Blakely.

First, Professor Bob Weisberg (along with the Stanford students and staff) deserve great credit for setting the absolute gold standard for an academic event. (And I am not just saying this because I know event planners and participants may be reading.) The event's logistics have been wonderfully planned and executed. And, more importantly, the collection of superstars assembled — including not only so many leading sentencing academics, but also lawyers from all sides of Blakely and judges and members of sentencing commissions — is truly remarkable.

Second, the array of perspectives and insights which can be brought to bear on Blakely continues to astound me. Throughout the afternoon, I heard so many intriguing ideas and predictions — ranging from the "true" concerns of Justice Scalia, to the need for federal criminal code reform, to the possible impact of 9/11 on "regular" criminal justice policy to the expected fate of Harris and Almendarez-Torres — and I am leaving out dozens of other important matters. I am not even going to try to summarize this Blakely bacchanalia; I would need dozens of posts to even begin to do the event justice.

Third, I was very pleased to have an opportunity to articulate to this amazing group my nascent views about conceiving the Blakely rule — and more generally the broad project of sentencing reform — using two deceptively simple distinctions: a distinction between offense factors and offender factors and a distinction between factual determinations and legal determinations at sentencing. Like all simple distinctions, my budding notions of offense/offender and fact/law distinctions at sentencing are fuzzy and need considerable development. However, I continue to believe that such distinctions can significantly advance our understanding of the meaning and perhaps limited reach of the Blakely rule, and that they can also be of great value as we starting charting a new course for the future of sentencing reform.

Finally, as if the day was not entertaining enough, the evening was capped off with the excitement of knowing that we now may be only one game away from setting up another truly epic Yankees-Red Sox playoff battle.

October 9, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

October 8, 2004

Bail and Blakely/Booker

With many thanks to Crime & Federalism's post here, we now have Judge Posner's wisdom, writing for a unanimous three-judge panel, about when in light of Booker a criminal defendant is entitled to release pending appeal. Here, in lots of detail, is what Judge Posner explains in US v. Lagiglio, No. 01 CR 348-7 (7th Cir. Oct. 8, 2004), a case involving a 41 month sentence for a tax offense:

LaGiglio moved us to order her released pending appeal, arguing that Booker caps her sentence at 12 months and she has already been in prison that long. We directed the district judge to revisit his denial of her motion for release in light of the intervening decisions. He ruled that her sentence was unlawful under Booker and ordered her released, precipitating this appeal by the government.

The government points out that LaGiglio is entitled to be released only if she is likely to be resentenced to a term of imprisonment shorter than the length of time that she will have been in prison by the time her appeal is decided. The Bail Reform Act authorizes release pending appeal only if (so far as bears on this case) the appeal "raises a substantial question of law or fact likely to result in . . . a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." 18 U.S.C. § 3143(b)(1)(B)(iv). An imprisoned person is not to be released pending further proceedings if it is a certainty that however those proceedings are resolved, she will have to be returned to prison....

The district judge did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.

Should the judge be minded to release LaGiglio, he will have to consider the government’s argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.

October 8, 2004 in Blakely in Appellate Courts | Permalink | Comments (2) | TrackBack

Interesting morning reading

A few interesting newpaper articles on federal sentencing developments have my attention this morning. This article from the Oregonian reports on Judge Panner's dramatic decision in US v. Detwiler (discussed here with commentary here). The article partially confirms my concern that the distinct separation of powers issue which is the focal point of the legal ruling in Detwiler will be conflated with the Sixth Amendment issue now before the Supreme Court in Booker and Fanfan.

And speaking of Booker and Fanfan, this commentary at Bloomberg News does a nice job integrating a few quotes from this Monday's argument to explain what is before the High Court in these cases. I find notable that this commentary leads with the story of white-collar fraud offender Jamie Olis (whose case was briefly noted here); as I suggested here, I think a particularized concern for punishing white-collar fraud offenders has been driving the Acting Solicitor General's litigation strategy on the question of severability.

And speaking of white-collar fraud offenders, the Acting SG should be happy to see this article which details that at least one white-collar fraud offender won't be getting a "sentencing windfall" because of Blakely. The article describes in interesting detail the sentencing of a former manager of the Greater Springfield Entrepreneurial Fund who pleaded guilty in March to theft, money laundering and other charges. The article notes that the defendant was given the chance to undo his plea in the wake of Blakely, but he chose not to.

And speaking of sentencing windfalls, did Baltimore Ravens football star Jamal Lewis get such a windfall by being able, as this article explains, to make a plea deal to serve only four months' imprisonment on drug charges which could have led to the application of a 10-year mandatory minimum sentence?

October 8, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Forecasting Blakely's future

Though the first panel of this incredible Stanford conference I am attending is looking back at the jurisprudence which led to Blakely, the various other panels are in various interesting ways forecasting the future of Blakley. And yet, the main message I draw from the US Sentencing Commission's memo about Blakely (as well as from the SG's description of the memo) is that forecasting Blakely's future is a perilous endeavor.

Consider, for example, that the USSC memo instructively concludes that the ultimate impact of Blakely on the federal sentencing system is debatable:

[I]nitial estimates of the impact of the Blakely decision on the workload of the federal court community should be viewed with caution. Activities occurring in this period immediately following the decision will likely not represent longer term responses by the field and cause substantial overestimation of the impact. While a large number of cases may, at first blush, appear to be exposed to a Blakely effect, it is likely that far fewer cases will actually be affected because of the availability of 'solutions' (e.g., fully stipulated pleas, fully articulated indictments, waivers of Blakely, etc) in some courts or the likelihood that past practice will repeat itself (i.e., historically high plea rates prior to the advent of the federal sentencing guidelines) in courts where these options are not available.

Of course, the Acing SG states his views more directly on the uncertain impact and import of Blakely's application in the federal system, when he says in his letter to the Supreme Court that "the extent to which ...plea agreements could or would reduce the impact of applying Blakely to the Guidelines is unknown." Thus, based on both documents, it seems we can only be sure that we cannot be sure of Blakely's likely impact on the federal system.

October 8, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

October 7, 2004

The Data Underground

I am now in California, which means a lot of pacific time blogging in the days ahead. And I will, later tonight, have some substantive points to make about the USSC data memo which is now available to the world (and here). But for now I just cannot resist, as a fan of Lou Reed and the Velvet Underground, noting that it was Lou Reedt who analyzed the Blakely data that the USSC kept mostly underground until now.

So, let's all sing along with a true Lou Reed classic:
Take a walk on the Blakely side
Said, Hey babe
Take a walk on the Blakely side
And the Justices go
doo do doo do doo do do doo.....

October 7, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

West coast time

I am on my way to the airport again, heading out to California to participate in the exciting Blakely event organized by Professor Robert Weisberg starting tomorrow at Stanford Law School (discussed here). Professor Wesiberg has described the event, entitled "The Future of American Sentencing: A National Roundtable on Blakely," in this way:

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.

I fly through North Carolina, and a long day of travel will likely mean no more posts today. I hope to have internet connectivity at my hotel and/or during the conference, though my west-coast blogging may be light because of a focus on the conference and related activities.

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

The data plot thickens

As many readers know, I have long been obsessing over just how many federal cases have Blakely factors and how different rulings in Booker and Fanfan could impact the operation of the federal sentencing system. (See generally posts here and here and here and here.) And, as detailed here, I was fascinated by a representation in the Acting Solicitor General's reply brief concerning the number of cases that involve Blakely factors, which was apparently based upon a U.S. Sentencing Commission internal memo that I thought was not publically available.

This data story has taken an interesting turn based on a letter I received this morning (which can be downloaded below) that was apparently filed by the Acting SG with the Supreme Court yesterday. The letter "proposes to lodge material with the Clerk that is relevant to" Booker and Fanfan — namely "a copy of a three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath on the subject 'Estimate of Number of Cases Possibly Impacted by the Blakely Decision,' which the Commission’s General Counsel made available to the Office of the Solicitor General." As the Acting SG's letter explains:

The memorandum’s author, Dr. Lou Reedt, is Director (Acting), Office of Policy Analysis, United States Sentencing Commission. The memorandum's recipient, Tim McGrath, is Staff Director of the United States Sentencing Commission.

The Commission informs us that the memorandum is an internally generated staff document prepared in an effort to project what the impact of Blakely might be, and that it has been made available to anyone who has requested it.

Fascinatingly, this "lodging letter" to the Supreme Court then goes on to make substantive points — as if this letter was a supplemental brief — about the way the Supreme Court ought to interpret the data in the Sentencing Commission's memo:
The government does not agree with all of the assumptions and speculations made in the memorandum, particularly with respect to the extent to which plea agreements may reduce the impact of applying Blakely to the Guidelines through stipulations or waivers. The extent to which such plea agreements could or would reduce the impact of applying Blakely to the Guidelines is unknown. Even under the most conservative assumptions in the memorandum (i.e., that applying Blakely to the Guidelines does not increase the trial rate and that all guilty plea cases validly resolve Blakely issues), however, the data still suggest that 65% of the federal criminal cases that go to trial will pose Blakely issues. Despite the limitations of the document, the underlying data may prove helpful to the Court in assessing the impact of applying Blakely to the Guidelines.

I am very pleased to learn that the SG now wants the Supreme Court to see the US Sentencing Commission's memo, and I am also very pleased to learn that I can receive a copy of the memo upon request. And, if anyone official at the USSC is reading, please consider this post a formal request for the three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath (though I might have thought this prior post entitled "Please, please share your data USSC" should have reasonably been understood as a sufficient request).

Yet, as is always the case, questions abound:

Why didn't the US Sentencing Commission, supposedly an independent judicial branch agency, submit this memo directly to the Supreme Court with its own amicus brief (or, better still, a month earlier when the Supreme Court was considering a set of Blakely-related cert. petitions)?

Why won't the USSC, which is now representing that this memo is a public document, post this memo on its website?

Has the USSC made this information available to all — or any — lower federal court judges who have been considering Blakely cases?

Will the defense team in Booker and Fanfan have an opportunity to file a "reply letter" in order to provide its view of what should be drawn from the USSC's memo?
Download sg_booker_lodging_letter.pdf

UPDATE: Right before I have to leave for the airport, I got a copy of the aforementioned USSC memo from a friend of the blog. Here it is:
Download ussc_estimate_of_impact1_memo_form.doc

October 7, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, Severability of FSG | Permalink | Comments (6) | TrackBack

Remedies and remediation in Detwiler

The fascinating and potent decision by US District Judge Owen M. Panner in US v. Detwiler, CR 03-372-PA (D. Oregon Oct. 5, 2004) (detailed here) — which declares the federal sentencing guidelines unconstitutional after the passage of the Feeney Amendment "because it violates the separation of powers doctrine" — already has at least a few fans. Crime & Federalism here says the decision is "airtight" and "should go down as a separation of powers classic" and in blog comments here describes Detwiler as a "separation of powers masterpiece that should be included in most con law casebooks." Similarly, Robert Sheridan here has a long post on the federal sentencing system that starts by saying Detwiler shows "what a federal judge can do when hitting on all cylinders."

(UPDATE: Laurie P. Cohen, always on top of federal sentencing developments, has an article in today's Wall Street Journal entitled "U.S. Judge Rejects Constitutionality Of Sentence Rules." Among other interesting tid-bits, the article details that defendant Richard Detwiler is 60-year-old offender who "pleaded guilty to one count of interstate travel to have sex with a minor [and] faces as many as 30 years in prison.")

Though Detwiler could become a very important decision (especially if the Ninth Circuit or other courts follow its lead), I am still pondering some of its conclusions and possible reverberations. Especially with respect to remedies, I think the Detwiler decision raises many more questions than it answers. I am also left wondering how Congress could, if it wished, fix the constitutional problem identified by Judge Panner.

As I understand the Detwiler ruling, Judge Panner concluded that the passage of the Feeney Amendment — and particularly its elimination of the requirement that judges serve on the US Sentencing Commission — undermined a key premise of the Supreme Court's 1989 decision in Mistretta finding that the Sentencing Reform Act (SRA) created a constitutional sentencing structure. (Here it is worth clarifying that Mistretta only addressed the broad constitutionality of the institutional structure of the federal sentencing system created by Congress through the SRA. The federal Blakely issue being considered now by the Supreme Court in Booker and Fanfan, as noted here, concerns more narrowly the constitutionality of how the federal guidelines created by the US Sentencing Commission are being applied. In other words, it seems Judge Panner is holding that what was a constitutionally sound federal sentencing structure on April 29, 2003 became constitutionally unsound on April 30, 2003 when President Bush signed the Feeney Amendment into law as part of the PROTECT Act.

Though this initial conclusion can (and should) be widely debate, I am even more intrigued by the remedy Judge Panner decides is appropriate. Notably, the defendant in Detwiler requested that the court "invalidate the Feeney Amendment and pass sentence under the pre-Feeney Guidelines." But Judge Panner sees the matter this way:

The separation of powers issue addressed in this opinion is not a mere challenge to one particular guideline, that can be stricken without disturbing the Guidelines system as a whole. Either the Sentencing Guidelines scheme as it exists today is constitutional, or it is not. There is no middle ground.... [T]he issue presented here is not the constitutionality of "this Act" — which is a smorgasbord of unrelated provisions stuffed into a single bill for political reasons — but the constitutionality of the Guidelines sentencing scheme itself. The challenged provisions go to the heart of what the Sentencing Commission is today, and whether the present federal Guidelines system, as it has been constructed by Congress, passes constitutional muster. I cannot unilaterally alter the structure of the Sentencing Commission to bring it into compliance with the Constitution. Only Congress potentially has that power.

Accordingly, the only appropriate remedy here is to declare the federal Sentencing Guidelines system, in its present form, unconstitutional. I will sentence Defendant to a term within the minimum and maximum terms prescribed by statute, as I would have done prior to enactment of the Guidelines. I will consider the Guidelines when imposing sentence, but they are now just advisory guidelines, not binding mandates.

Though I am certainly no expert on remedies for separation-of-powers constitutional defects, this part of the Detwiler decision seems anything but "airtight." Especially in light of severability principles which call for upholding as much of a congressional act as possible, the remedy adopted by Judge Panner seems much too broad and also stunningly disruptive. I presume his ruling means that he won't apply the guidelines in any case, even in a case not at all impacted by the provisions of the Feeney Amendment or by subsequent Sentencing Commission action. Moreover, it is unclear based on Judge Panner's logic how Congress could even fix the constitutional problems he identifies, save for perhaps directly enacting into statutory law all of the existing guideline provisions through regular legislation. Moreover, his ruling necessarily calls into question every guideline sentence imposed since April 30, 2003 when the Feeney Amendment became law (and that's probably somewhere around 100,000 federal sentences). Wow!

I would be eager to hear from constitutional experts about what are the various possible and sensible remedies for the separation-of-powers constitutional defect that Judge Panner identifies. My uniformed opinion is that the defendant's proposed remedy in Detwiler makes a lot more sense than the remedy adopted by Judge Panner, and I also think there are likely a range of other possibilities as well.

October 7, 2004 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1) | TrackBack

The exclusive 500 club

As of this week, the Blakely decision has perhaps made its case for the legal Hall of Fame. As all true baseball fans know, the 500 Home Run Club is an exclusive group and every eligible member is in the Baseball Hall of Fame. Blakely has now officially joined the (less discussed) 500 On-Line Lower-Court-Decision Club.

On Lexis this morning, a search of "Blakely & Sentenc!" after June 24, 2004 produces a total of 510 "hits." Though a few of these "hits" do not involve a Blakely legal issue (but rather a defendant with the surname Blakely), I feel confident declaring that Blakely, barely more than 100 days since being decided, has now officially joined the 500 On-Line Lower-Court-Decision Club. (Interestingly, on Westlaw this morning, a search of "Blakely & Sentenc!" after June 24, 2004 produces only 486 hits. I suppose Lexis can claim more pop in its legal bats.)

Of course, there must be thousands, perhaps hundreds of thousands, of court determinations impacted by Blakely that do not appear in a written, on-line decision. Recall that Acting SG Paul Clement started his argument in Booker and Fanfan by noting that there are 1200 criminal sentencings in the federal system each week. That means there should have been, in just the federal criminal justice system, a total of 16,800 sentencings since Blakely was decided 14 weeks ago. My guess — and this is only a guess, because it is so hard to get hard data during these chaotic days — is that most of these sentencings have been delayed or otherwise impacted by Blakely. Throw in all the state cases affected by Blakely (only partially detailed here), not to mention the impact on charging, pleas and appellate practices, and I am feeling even more confident in my claim a few months ago here that "Blakely is the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."

And those of you really interested in numerology may be intrigued to know that this is my 521st post — tying the home run totals of both Ted Williams and Willie McCovey — and there have now been 638 comments to date on the blog.

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

Trying to be David Letterman

Without further ado, I now provide my "Top Ten List of Cool Moments from my DC Day." Though I could probably make a list of about 100 cool moments, here are 10 that still linger in my mind from spending Monday hanging out around the US Supreme Court and hearing the arguments in Booker and Fanfan.

10. Meeting fellow bloggers Tom Goldstein of SCOTUS Blog and Jason Hernandez of the Blakely Blog.

9. Interacting with a number of US Sentencing Commissioners (who were still willing to talk to me despite my frequent criticisms of their work post-Blakely).

8. Discovering that the barbeque wings in the Supreme Court snack bar are quite good.

7. Feeling the palpable excitement in the courtroom when the Justices took the bench (exactly on time).

6. Watching Acting SG Paul Clement raise oral argument to an art form (and also seeing that Blakely uber-genius Deputy SG Michael Dreeben shares my hair line).

5. Hearing Justice O'Connor make a scoffing remark about Judge Martin's Bizarro amicus brief.

4. Receiving a gift of (overpriced) golf balls with justice scales from the Supreme Court gift shop.

3. Having a chance to talk in person with many superstar members of the media throughout the day and being consistently impressed with how well they all understood the issues.

2. Hearing the Justices ask many good, fair, hard questions to all the advocates.

1. Leaving the courtroom with a positive feeling that the High Court would do the right thing.

October 7, 2004 in Blakely in the Supreme Court | Permalink | Comments (2) | TrackBack

October 6, 2004

Close enough for government work

State appellate courts have, perhaps unsurprisingly, endeavored to minimize the impact of Blakely by finding clever ways to affirm previously-imposed sentences even when Blakely issues are implicated. Many of these affirmances are coming from California, though other states are following suit.

For example, in People v. Vaughn, 2004 WL 2223299 (Cal. App. 2 Dist. Oct. 05, 2004), the court affirmed an enhanced sentence by concluding that the judicial findings to support the enhancement were "inherent in the jury's verdict, and required no separate findings by the trial court." Meanwhile, in People v. Washington, 2004 WL 2202033 (Cal. App. 2 Dist. Oct. 01, 2004), the court affirmed an enhanced sentence because "three of the five factors in aggravation found by the trial court are not affected by Blakely and support selection of the upper term [and] there is no reasonable possibility that upon remand the trial court would exercise its discretion other than to again select the upper term." Similarly, in People v. Sylve, 2004 WL 2189339 (Cal. App. 2 Dist. Sept. 30, 2004), the court concluded that even giving "defendant the benefit of the argument as to whether Blakely prohibits several of the factors, this leaves us with two legitimate aggravating factors and no mitigation [and thus the] trial court was justified in imposing the upper term on the burglary count."

And, showing that such affirmances are not only a California phenomenon, in State v. Shaw, 2004 Tenn. Crim. App. LEXIS 826 (Tenn. App. Sept. 28, 2004), the court in a similar way concludes that Blakely problems are of no ultimate consequence:

In sum, we conclude that enhancement factors (2) and (10) were appropriately applied under Blakely, but that the trial court erred in applying enhancement factors (9) and (11). We further conclude that the strong weight to which the trial court assigned the applicable enhancement factors more than justifies the enhanced sentence imposed. Accordingly, we affirm the twenty-four-year sentence.

October 6, 2004 in Blakely in the States | Permalink | Comments (0) | TrackBack

More on having more in indictments

As noted before here, the legitimacy of Blakely-ized indictments depends in large part on whether (and how) Blakely impacts federal guideline sentencing. In a thorough recent decision covering these realities, Magistrate Judge Stephen L. Crocker in US v. Dennis, 2004 U.S. Dist. LEXIS 19919 (W.D. Wisc. Oct. 1, 2004), recommended denying a motion to strike sentencing allegations from a Blakely-ized indictment. Here is some of the key language from the Magistrate's report and recommendation:

The bottom line is that the current law of this circuit requires the government to include sentencing allegations in its indictments even though it doesn't want to, and none of the defendant's counter-arguments are sufficiently persuasive to justify striking the allegations....

Defendants argue that this court should strike the two sentencing allegations for three reasons: 1) The allegations are prejudicial surplusage; 2) The government does not have statutory authority to include sentencing allegations in an indictment; and 3) Presenting sentencing allegations to a jury for proof beyond a reasonable doubt to increase defendants' sentences violates the constitutional principles of separation of powers and the prohibition against the legislative branch delegating its powers to the executive branch. The government demurs, noting that it has no choice but to include sentencing allegations in the indictment under the current law of this circuit. The government is correct.

October 6, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Severability of FSG | Permalink | Comments (0) | TrackBack

State of state Blakely appeals

A very knowledgeable reader reports that the interesting Van Buren decision from Washington state (discussed here) "is likely to have a very short shelf life" because the Washington Supreme Court has "recently granted review in no fewer than 6 Blakely cases — each with a different issue of retroactivity, the extent of the prior conviction exception, the scope of Blakely facts, etc." According to this report, "oral arguments will be held on November 9 and 10."

In addition to providing an interesting example of a state supreme court's proactive approach to settling a host of unsettled Blakely issues, this report leads me to wonder (1) how many state supreme court decisions addressing Blakely we may see before the end of the year, and (2) whether and when the US Supreme Court will get involved if state supreme courts reach different conclusions about fundamental Blakely issues such as the decision's retroactivity, the extent of the prior conviction exception, the scope of Blakely facts, the application of Blakely to judicial fact-finding to support imposition of consecutive sentences, etc.

October 6, 2004 in Blakely in the States | Permalink | Comments (0) | TrackBack

Being Antonin Scalia

Though surely it would not make for as entertaining a movie as Being John Malkovich, these days it is hard to resist the urge to try to get inside Justice Scalia's head to figure out exactly what makes him tick and explains his votes in the Blakely line of cases. Helpfully, those interested in doing just that can perhaps get a bit of the experience through two articles recently sent my way.


First, from Professor Rory K. Little, we have an article which appeared on Monday in the Daily Journal (and appears here with permission) entitled "Supreme Court Decisions on Sentencing Ignore Intentions of Constitution's Framers." Professor Little, who drafted an unsuccessful re-hearing petition for the state of Washington after it's "loss" in Blakely (available here), speculates in this piece that "Justice Scalia has foreseen, well ahead of most observers, the overall negative results for criminal offenders in his post-Blakely world." The piece contains a number of other interesting observations, and can be downloaded here:
Download blakely_daily_journal_article_october_04.rtf

Also trying to get inside Justice Scalia's head is attorney Donald V. Morano, though his piece entitled "Justice Antonin Scalia: His Instauration of the Sixth Amendment in Sentencing" mines the written words of the author of Blakely. Indeed, Morano's piece provides a formal analysis of the words of Justice Scalia going back to Mistretta, and it develops intriguing ideas about not only where Blakely might go, but also about the decision's potential retroactivity. Here's the article:
Download justice_scalias_insaturation.doc

October 6, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

More proof the guidelines limit "windfalls"

I have explained previously here and here that I am more concerned about lowered sentences if the guidelines are made wholly advisory than if they are severable if (when?) Blakely is applied to the federal system. A decision I received today from the Ninth Circuit, US v. Antondo-Santos, No. 04-10095 (9th Cir. Oct. 6, 2004), confirms my view that at least some sentences could be far more lenient after Blakely if the guidelines are made wholly advisory.

In Antondo-Santos (available below), the Ninth Circuit reverses for the third time a significant downward departure for a (first-time) drug offender. Indeed, this time, the Ninth Circuit granted the government's request for a remand to a different sentencing judge:

In light of the history of this case and our previous remands, it is clear that the district court would have substantial difficulty in putting out of its mind its repeated, previously-expressed views that a 66 month sentence is appropriate in this case.

Significantly, since it appears that the district judge in Antondo-Santos strongly (and perhaps accurately) believed that 5+ years for the defendant was "a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment as required by 18 USC 3553(a), I think the Ninth Circuit would have had to affirm the sentence in this case if the guidelines were simply advisory. Food for thought.
Download Antondo-Santos.pdf

October 6, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

West coast offense

My Dad taught me the old saying that "the best defense is a good offense." Though many would debate whether this holds true in football for adherents of the West Coast Offense coaching philosophy, the very important (and very entertaining) decision by Oregon US District Judge Panner in US v. Detwiler (available here) suggests that at least one judge is ready to try out the philosophy in the arena of federal sentencing.

In Detwiler, Judge Panner provides a thorough and thoughtful account of how the Feeney Amendment has changed certain premises that were key for the Supreme Court in upholding the structure of the Sentencing Reform Act in Mistretta v. US, 488 U.S. 361 (1989). Following an introductory section with frequent quotes from Mistretta and the Federalist Papers, Judge Panner first documents the history and passage of the Feeney Amendment in stark and provocative terms:

Nominally sponsored by a freshman Congressman, the Feeney Amendment actually was authored by Attorney General Ashcroft's subordinates at the Department of Justice.... This legislation, of vital importance to the Judicial Branch, was "enacted without any consideration of the views of the Judiciary." Chief Justice William Rehnquist, 2003 Year-End Report on the Federal Judiciary. The public likewise had no opportunity to be heard.

This stealth route clearly was intended to prevent close scrutiny of the Feeney Amendment, or a fair opportunity to oppose the measure. No emergency mandated acting in such a precipitous manner, without consulting a coordinate Branch of government or allowing opportunity for public input or Congressional debate. The legislative record also is replete with remarks by some members of Congress, and the Attorney General's deputies, expressing hostility toward the Judicial Branch and toward judges who fail to decide cases in the manner favored by those individuals....

Judge Panner thereafter documents the impact and consequences of the Feeney Amendment's changes to the structure of the US Sentencing Commission and the operation of federal sentencing law:
The alterations to the Sentencing Commission effected by the Feeney Amendment require re-examination of a fundamental premise of Mistretta, namely, that the Sentencing Commission is part of the Judicial Branch.

I see no principled basis on which to distinguish the Sentencing Commission, post-Feeney, from the myriad of other administrative agencies that populate the Executive Branch.... For separation of powers purposes, if it walks like a duck, and quacks like a duck, then it's a duck, even if Congress chooses to label it a cow. The Plan of the Constitution cannot be circumvented through mere labels.

The practical consequence of the Feeney Amendment is that, regardless of what it may say on the office door, the Sentencing Commission is now a captive of the Executive Branch. Any involvement by the Judicial Branch in the Commission's work is solely by the grace of the Executive Branch.

Consequently, explains Judge Panner, because the "Executive Branch has usurped control over the tasks that Mistretta viewed as historically within the realm of the Judicial Branch," the "only appropriate remedy here is to declare the federal Sentencing Guidelines system, in its present form, unconstitutional."

Detwiler is a powerful and important ruling (not to mention a great read), and it opens up another critical front in the pitched battle between the US Congress and the Federal Judiciary over sentencing law and policy. Moreover, as Howard Bashman astutely notes here, because the Ninth Circuit will surely be called upon to review this decision, "this matter is likely to remain interesting for quite some time to come."

October 6, 2004 in Federal Sentencing Guidelines, Sentences Reconsidered, Severability of FSG, Who Sentences | Permalink | Comments (6) | TrackBack

Confining Blakely's impact in its home state

As folks in Washington monitor the recent activity of the Mount St. Helens volcano, an intermediate appellate court in Washington has done its best to limit the impact of the Blakely earthquake. In State v. Van Buren, 2004 WL 2222263 (Wash. App. Div. 2 Oct. 05, 2004), the court makes the following rulings about the reach and application of Blakely under Washington sentencing law:

First, Blakely applies to all cases in which review was not final on June 24, 2004. Second, under Blakely, a jury must find disputed facts beyond a reasonable doubt before the sentencing court may rely on these facts to impose an exceptional sentence above the standard range. Third, Blakely does not require a jury determination of a defendant's criminal history. Fourth, the calculation of a defendant's offender score is not a question of fact but a legal calculation made by the sentencing judge after consideration and resolution of legal issues and rulings on statutes and laws that apply to the defendant's criminal history. Thus, a defendant's offender score is not a question of fact that must be proved to a jury beyond a reasonable doubt. Fifth, whether there are substantial and compelling reasons to impose an exceptional sentence is a "proportionality" type judgment for the sentencing court. Sixth, whether a defendant with an offender score greater than nine receives "free crimes" if sentenced within the standard range is part of the calculation of a defendant's offender score and is not a question of fact for the jury.

The thorough and thoughtful opinion in Van Buren thus serves to limit the impact of Blakely in various important ways: it calls Blakely a new rule and consequently only applicable to cases still on direct review, and it relies upon the "prior convictions" exception and a robust fact/law distinction to restrict the number and type of findings that must be made by a jury under Washington law.

Though some of the conclusions reached in Van Buren about Blakely's reach might be disputed, the court's decision is well-reasoned and paints a picture of how Blakely can be reasonably integrated into at least some existing guideline systems without creating too much "carnage and wreckage."

October 6, 2004 in Blakely in the States | Permalink | Comments (0) | TrackBack

October 5, 2004

Big doings from the District of Oregon

I had been thinking that there had not been any big rulings from the federal district courts lately, and then today United States v. Detwiler, CR 03-372-PA (D. Or. Oct. 5, 2004), arrives in my in-box. In Detwiler, Senior US District Judge Owen M. Panner declares the federal sentencing guidelines unconstitutional.

Ho hum, you might say in our post-Blakely world. But Judge Panner's holding is based on Congress's passage of the Feeney Amendment; he concludes that the "practical consequences of the Feeney Amendment is that, regardless of what it may say on the office door, the Sentencing Commission is now a captive of the Executive Branch" and consequently the federal sentencing system is unconstitutional based upon separation of powers principles. Here's the opening of an opinion you can download below:

Pending before the court is Defendant's motion to declare the Feeney Amendment unconstitutional and to impose sentence under the pre-Feeney version of the federal Sentencing Guidelines. That motion is granted in part. I hold that:
1. The federal Sentencing Guidelines system, in its present form, is unconstitutional because it violates the separation of powers doctrine.
2. The defects are not severable.
3. The federal Sentencing Guidelines will be treated as true guidelines, and not mandates, when imposing sentence in this and all future cases, pending further directions from a higher court or the Congress.

More commentary later on what seems to be now another front in the on-going war between the US Congress and the Federal Judiciary over sentencing law and policy.
Download detwiler_opinion_order_final_corrected.pdf

October 5, 2004 in Federal Sentencing Guidelines, Severability of FSG, Who Sentences | Permalink | Comments (1) | TrackBack

Now, the more intersting story...

Though I still have pages and pages of undeveloped notes from yesterday's Booker and Fanfan argument, I have already worn myself out with the half-dozen posts about the event to be found below. Moreover, when all is said and done, I think the story of Blakely in the states is even more interesting (and often less discouraging) that the federal Blakely story. And, as is now true nearly every day, there are new state Blakely developments to report.

Specifically, from North Carolina, today we get a Blakely reversal in State v. Harris, 2004 WL 2215184 (N.C. App. Oct. 05, 2004), in a case involving the imposition of an aggravted term based on a judicial finding that the defendant's offense was "especially heinous, atrocious, or cruel." From Minnesota, we get remands in two cases involving upward departures so that sentencing courts can consider the impact of Blakely. See Santiago v. Minnesota, 2004 WL 2221929, (Minn. App. Oct. 05, 2004); Minnesota v. Seelye, 2004 WL 2219663 (Minn. App. Oct. 05, 2004). And, of course, no week would be complete without a California Blakely cases from the state's intermediate court, and in People v. Gaitan, 2004 WL 2212089 (Cal. App. 1 Dist. Oct. 04, 2004) we get a thoughtful remand for resentencing on Blakely grounds.

But the big state news today comes from Blakely's home state, Washington: an intermediate appellate court decision in State v. Van Buren, 2004 WL 2222263 (Wash. App. Div. 2 Oct. 05, 2004), makes an array of (interesting and debatable) rulings about what sorts of findings a judge can and cannot make under Blakely and Washington law. I hope to discuss the Van Buren case at some length later tonight.

October 5, 2004 in Blakely in the States | Permalink | Comments (0) | TrackBack

Justice Breyer's (lack of) perspective

As noted here, Duke University Law Professor Erwin Chemerinsky has been saying that Justice Stephen Breyer should recuse himself in Booker and Fanfan because he "is one of the 'parents' of the federal sentencing guidelines." Though I am not sure recusal is appropriate, it was clear from many of Justice Breyer's questions at oral argument yesterday that, like all parents, Justice Breyer does have a somewhat rose-colored perspective when he considers his guidelines "baby."

Only with the oral argument transcript (whenever it is available here) will I be able to effectively highlight how Justice Breyer's questions revealed his essential affinity for the existing guidelines. But I can here report that the overall tone of his questions — just like the overall tone of his Blakely dissent — seems infused with the belief that the federal guideline system he helped create (with its "relevant conduct" rules which require punishment on uncharged, unproven and even acquitted conduct) is the only way to develop a workable guideline system that limits the impact of prosecutorial plea bargaining and matches up real conduct and real punishment.

Beyond basic concerns about "parental" bias, Justice Breyer's positive views about the federal guidelines seem to be largely out-of-touch with the real day-to-day operation of the system (at least as I hear it described by trial judges and lawyers). Consider as evidence of a more sober reality the recent report (available here) from the American College of Trial Lawyers, tellingly titled "United States Sentencing Guidelines 2004: An Experiment That Has Failed." This report, which should be a must read for everyone contemplating the future of federal sentencing reform, thoughtfully explains why:

— "the [existing federal] Guidelines have created a sentencing system wherein the power to make decisions about sentencing has effectively been transferred from the judge to the prosecutor"
— "the 'real-offense' feature of federal sentencing greatly exacerbates unfettered prosecutorial discretion and promotes questionable prosecutorial practices"
— "difficulty in uniformly applying the multiple and complex provisions of the Guidelines and the variations in prosecutorial practice [together with variable departure practices] have resulted in disparate sentences imposed under the same Guideline provisions"

and finally
While the goal of eliminating unfair disparity in federal sentences was laudable, the Guidelines themselves are an experiment that failed. The Guidelines, together with the increasing number of mandatory minimum sentences, have created a system that is too complex, rigid and mechanistic. The existing system places the goal of uniformity above all other policies and, most significantly, above the goal of justice in the individual case. The elimination of unfair disparity in sentencing, to the extent this has been accomplished, has been only superficial.

Put another way, though Justice Breyer's vision of the federal guidelines may be sound in theory, it has proven problematic in practice. Moreover, though Justice Breyer obviously fears a charge-offense guidelines system could exacerbate the impact of pleas and prosecutorial power, the basic success of most state guideline systems has shown that charge-based systems can be generally effective. (Or, at the very least, they are not obviously much worse than the existing federal system when it comes to the impact of prosecutorial power). See generally Richard S. Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999).

In sum, reports from inside the system indicate that Justice Breyer's federal guidelines "baby" in fact suffers from at least a touch of jaundice. Whether the application of Sixth Amendment rights will cure the "baby" remains to be seen, but I hope Justice Breyer is able to appreciate that the baby may at least need some sort of legal check-up.

October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (16) | TrackBack

Justice Kennedy's interesting interest

In the course of my Legal Affairs debate last week (available here), I lamented that the Blakely line of cases has a troublesome "binary" quality because some matters of relevance at sentencing are getting labeled "elements" (or the functional equivalent), in which case the full panoply of constitutional procedural rights are deemed fully applicable. But other matters, so-called "sentencing factors," garner the application of very few procedural rights. As I explained in the Debate Club:

Instead of relying on the Sixth Amendment to regulate sentencing procedures in this binary way, I might have preferred the Supreme Court to have developed more nuanced sentencing regulations through the Due Process Clause in order to give legislatures (and sentencing commissions) more flexibility to develop other procedures that would protect defendants' rights at sentencing.

Because of this view, I was quite intrigued when at oral argument Justice Kennedy seemed interested in exploring with Acting Solicitor General Paul Clement whether different sorts of facts might justify different sorts of treatment under the Blakely rule. Though the oral argument transcript (whenever it is available here) will reveal that this line of questioning did not go anywhere, I am somewhat hopeful that Justice Kennedy may try to develop a more nuanced approach to the (still developing) Blakely doctrine as the Justices start writing all this up.

Specifically, I would think it could be very beneficial for the Supreme Court to start working through a distinction between "offense facts" and "offender facts." It make a lot of sense to me — and even loosely fits with the existing Apprendi/Blakely jurisprudence — to require the government to prove to a jury beyond a reasonable doubt any and every fact relating to the offense, but to allow facts relating to the offender to be treated "administratively" under more lax procedures (see generally my post here distinguishing adversarial and administrative justice).

Helpfully, some courts and commentators have already started working through distinctions of this sort. Most notably, as explained in State v. Kaua, 72 P.3d 473 (Hawai'i 2003), the courts of Hawai'i have developed a jurisprudence in which so-called "intrinsic factors" are "required to be pled in the indictment and found by the jury" because they "are contemporaneous with, and enmeshed in, the statutory elements of the proscribed offense." Whereas, in contrast, so-called "extrinsic factors," which are factors "separable from the offense itself in that they involve consideration of collateral events or information" can be "found by the sentencing court after the defendant's adjudication of guilt at trial by the trier of fact." Similarly, in articles such as Kyron Huigens, Solving the Apprendi Puzzle, 90 Geo. L.J. 387 (2002), and David Yellen, Illusion, Illogic, and Injustice: Real Offense Sentencing and the Federal Sentencing Guidelines, 78 Minn. L. Rev. 403 (1993), and others, commentators have done important work exploring the nature and consequences of different sorts of facts for proof and procedure purposes.

Of course, as Hawai'ian jurisprudence reveals, a distinction between intrinsic and extrinsic facts is not self-defining. Or, slightly recast, there can be reasonable disputes over what qualifies as an offense fact and as an offender fact (e.g., role-in-the-offense might be arguably in either or both categories). Nevertheless, redefining Blakely's rule in terms of requiring jury trial and proof beyond a reasonable doubt not of all sentence-enhancing facts, but just of all sentence-enhancing "offense facts" I think advances the ball usefully. At the very least, I think an offense/offender distinction could be a more fruitful jurisprudential foray than the tail-wagging-dog jurisprudence that Justice Scalia regrets having lost in footnote 13 of his Blakely decision.

October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Severability of FSG | Permalink | Comments (4) | TrackBack

A Fall Classic?

With a full slate of baseball playoff games starting today, hard-core baseball references will likely pervade this blog in the weeks ahead. As noted here and here, there are many compelling MLB playoff stories, and it is great fun to talk about Blakely through the lens of baseball lore. For example, it is easy to think of (Yankee fan) Justice Scalia as something of a modern-day legal Babe Ruth, with Blakely perhaps being his called shot.

Today I am thinking about whether we will have a World Series champion or a decision in Booker and Fanfan first. I encouraged guessing about the likely date of a ruling here, and a knowledgeable SCOTUS-watcher yesterday suggested November 1 as when we would see a decision (note that this schedule indicates the World Series will be wrapped up no later than October 31).

Though I continue to expect to see a decision in Booker and Fanfan sometime in November, the need for a quick ruling is considerable and yesterday's argument has me thinking we might see a decision this month. That possibility leads me to ask who could be the Supreme Court's "Mr. (or Ms.) October"?

Justice Thomas seems to have a bit of swagger like Reggie Jackson, the original Mr. October, and it is fun to speculate about the Justice's views on Booker and Fanfan. As is his custom, Justice Thomas did not say a word at yesterday's oral argument. But he has been one of the most "vocal" Justices in the Apprendi line of decisions, and I think there is a real chance he will get to write the opinion for the Court in Booker and Fanfan.

In honor of the greatest month in sports, I highly encourage readers to use the comments for more baseball-Blakely talk. Should we think of Justice Breyer as Abner Doubleday or Alexander Cartwright because of his role in creating the federal guidelines? Is Justice O'Connor the High Court's Jackie Robinson for breaking through the SCOTUS gender line (and might that in turn cast Justice Ginsburg in the role of Satchel Paige)?

Gosh this is fun, please join in. Football fans should feel free to chime in, too. However, since the departure of superstar Justice Byron "Whizzer" White — who was runner-up for the famed Heisman Trophy in 1937 — I think only Chief Justice Rehnquist has the stature to hold his own on the gridiron.

October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

What was not discussed at oral argument

Posts here and here and here provide a sea of coverage of what was said at yesterday's oral argument in Booker and Fanfan. As many of these media and blog accounts highlight, there was plenty of discussion of how present and future federal sentencings might be handled in the wake of Blakely. (It is worth remembering here that if (when?) Congress gets involved, the realities of Ex Post Facto doctrine will limit its ability to impact existing cases; any changes which operate to lengthen federal sentences can only have prospective application.)

But not discussed at all during the argument was the critical question of how past cases could be impacted by Blakely — that is, no one mentioned the issue of retroactivity in any way. This is not really surprising; the retroactivity issue was not formally before the High Court in Booker and Fanfan, nor was it mentioned at all in any of the briefs. However, as I noted here and here, whatever the Justices say in Booker and Fanfan could have at least an indirect impact on the realities and the perceptions of whether the Blakely rule must be applied to sentences that became final before June 24, 2004.

Moreover, my crackerjack research assistant recently pointed out to me that in the modern uber-case on retroactivity, Teague v. Lane, 489 U.S. 288 (1989), Justice O'Connor writing also for Chief Justice Rehnquist and Justices Scalia and Kennedy suggested that "the question whether a decision announcing a new rule should be given a prospective or retroactive effect should be faced at the time of that decision." Id. at 300 (citation omitted). Obviously, the Supreme Court did not speak directly to retroactivity issues in Blakely. Indeed, the High Court has not yet even officially addressed Apprendi's retroactivity, even though Ring's non-retroactivity was settled with Shriro (see here and here for some general discussion of Blakely retroactivity issues).

I would be surprised if Booker and Fanfan formally address retroactivity questions, though there is certinly a huge prison population eager to make Blakely claims even when sentences long ago became final. As but one example, consider the recent state case of People v. Schrader, 2004 WL 2192550 (Ill. App. 1 Dist. Sept. 30, 2004): a defendant sentenced in 1982 raised Blakely to assail his 70-year murder sentence because the sentencing judge was able to add 30 years to the defendant's maximum sentence based on the find that the defendant's behavior was "brutal and heinous."

October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

More reports on Monday's oral argument

On the assumption that you can never get bored reading accounts of the Booker and Fanfan arguments, after you read all the stories previously linked here you can then consider the reports from USA Today, The Chicago Tribune, The Boston Globe, The LA Times, The Pittsburg Post-Gazette, and The Houston Chronicle. Defendant focused reports come from The Wisconsin State Journal and The Portland Press Herald. Also, though I cannot provide a link, I am sure the Wall Street Journal continues its great coverage this morning, too. Perhaps with all of this coverage, DOJ can find one or two accounts of the argument which suggest they still have a chance of keeping Blakely from applying to the federal guidelines.

To follow up some of my late night reflections from last night to be found here and here, later today I will have some comments on the way I think Justices Breyer and Kennedy are looking at the cases. I also hope to finish my "Top Ten List of Cool Moments from my DC day."

October 5, 2004 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Reflections on the arguments on severability

Ultimately, the real action in Monday's argument concerned severability because the five Justices in the Blakely majority essentially decided Blakely's applicability to the federal system when they decided Blakely. Everyone understood back in June the impact of the ruling in Blakely for the federal system, and Fanfan's lawyer Rosemary Scapicchio astutely started her argument by reminding the Court that the government argued back in Blakely that if the Washington guidelines fell then so would the federal guidelines. (Indeed, Scapicchio came very close to accusing the SG of flip-flopping.)

On the issue of severability, Tom Goldstein's post here and a report from Mark Stancil here provide some helpful (though distinctive) head-counting of the Justices' apparent views on severability. What fundamentally makes this issue so hard is that the two primary options facing the Court both seem problematic: the SG's argument for advisory guidelines, as Justice O'Connor observed, seems to fly directly in the face of Congress's obvious interest in creating binding sentencing guidelines; the defense bar's argument for jury fact-finding is a potential administrative nightmare because of how many complex factual issues the guidelines sometimes make relevant to sentencing.

However, as I have detailed in a number of posts (see here and here), I do not think the mess created by jury fact-finding would be so great, and I think the mess created by treating the guidelines as advisory in some cases would be considerable. Justices Stevens and Scalia both seemed to appreciate this first reality: at oral argument, Justice Stevens embraced the idea beautifully developed in the NAFD's amicus brief that plea deals will take care of most cases and trials can be adjusted in the remaining cases, and Justice Scalia suggested that the consequences of applying Blakely to the guidelines would have just a "one-shot impact" for on-going cases.

Moreover, because everyone seems to want the guidelines to apply in cases without Blakely factors, as Tom Goldstein explains here, I do not see how the Court could ultimately adopt the SG's "dual system" proposal. Two judges who have really grappled with the SG's dual system proposal (Judge Gertner in Meuffleman and Judge Presnell in King) have forcefully explained the illogic and inconsistency with congressional goals of uniformity which results from having the guidelines fully applicable in cases without Blakely factors, but wholly advisory in cases with Blakely factors.

Mreover, even putting aside concerns of logic and congressional intent, I just do not understand how the SG's proposed dual system goes about deciding which cases are in which system. Let's consider, as just one example, the Enron defendants. I believe these defendants had their indictments "Blakelyized;" because the government is alleging some Blakely factors, it would seem the Enron defendants if/when convicted would be subject to advisory guidelines sentencing. But what if the defendants contest the alleged Blakely factors? Does the judge have to make an initial determination of whether a Blakely factor exists to answer the threshold question of whether the guidelines will be binding or advisory? Critically, in order for plea negotiations to be able to develop effectively, the parties are going to want to know which sentencing system is going to apply as soon as possible. But it is hard to understand exactly when and how that determination is to be made; indeed, it seems possible that the "which system" determination could change at the last minute if/when a probation officer discovers some unrealized Blakely factor during a pre-sentence investigation.

The defense lawyers have complained the SG's proposed dual system permits prosecutorial manipulation because a prosecutor could allege or not allege a Blakely factor depending upon which system the prosecutor wants applicable. But, critically, the dual system would also be subject to defense manipulation. If a defendant thinks he might do better with advisory guidelines, he might try to concoct a minor Blakely factor — e.g., offer a $10 bribe to the probation office to implicate the obstruction of justice enhancement — with the goal of freeing the judge from the guidelines. And, in addition to the struggles the parties will have at the charging and plea stages if they cannot know what system of sentencing will apply, probation officers may be placed in a very difficult position if their pre-sentence reports are going to have a dispositive impact on whether the guidelines are fully applicable or wholly advisory.

In sum, though the idea of making the guidelines advisory on the surface appears more tenable than requiring jury fact-finding, the nuts-and-bolts challenges of administering a dual sentencing system seem enormous. Perhaps defense attorneys and line prosecutors will report in the comments that they can envision how such a dual system would work, but I suspect it is an idea that (like alternative sentencing) makes a lot more sense in theory than in practice.

October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Severability of FSG | Permalink | Comments (1) | TrackBack

October 4, 2004

Reflections on the SG's argument on Blakely's applicability

Arguing for the government, Acting SG Paul Clement very effectively framed the issues facing the Supreme Court in an effort to highlight the "carnage and wreckage" that would flow from applying Blakely to the federal guidelines. Clement noted at the outset that there are 1200 federal criminal sentencings each week, and he suggested they could all be suspect if Blakely applies to the federal system. He also strongly argued that Dunnigan, Witte, Watts and Edwards all conveyed a particular understanding of the guidelines as distinct from the statutory maximums enacted by Congress.

Clement cleverly focused on the fact that in Watts essentially the whole court, save Justice Stevens, in summary fashion rejected a challenge to the use of acquitted conduct in guidelines sentencing. He also ultimately asserted that the key precedent really at stake was Mistretta, as he suggested that Mistretta itself would have to be reversed because the respondent’s argument would essentially mean that the US Sentencing Commission has functionally created elements for thousands of new federal crimes.

I think Clement is right when saying that extending Blakely to the federal guidelines would essentially overrule Watts. But that is, in my view, another argument for extended Blakely. Every year I teach Watts in my sentencing courses, and every year students are aghast that the existing guidelines require judges, based on preponderance findings, to enhance sentences based on facts relating to charges on which a defendant was acquitted. It is very hard for a criminal justice system to endorse Watts and also claim to have a serious commitment to the jury right.

But I think Clement is wrong when saying that extending Blakely to the federal guidelines would essentially overrule Mistretta. This claim is based on the assertion that extending Sixth Amendment rights to guideline factors would turn them into de facto elements. But because such guideline factors require judges to impose longer sentences, they truly are already de facto elements (and this is why Ex Post Facto law limits the application of new guidelines to old cases). In other words, defendants now feel substantively the impact of guidelines factors as if they were elements, and the SG is just arguing that defendants should not be provided the usual procedural protections that accompany such elements. This is what gives the government's argument a "through the looking glass" quality: according to the government, defendants get full procedural rights when Congress substantive increases sentences, but they do not get these rights when a (less democratically accountable) administrative agency increases sentences.

As I noted in a prior post and as others have noted throughout the blogsphere and in the media, it does not seem Clement was winning any converts with his (well crafted but very uphill) arguments. Indeed, the most interesting interchange during this part of the argument was when Justice Kennedy started to explore with Clement whether different facts might get different treatment under the Blakely rule. This led me to wonder whether Justice Kennedy was hoping to engineering a more nuanced approach to the (still developing) Blakely doctrine. No one followed Justice Kennedy's lead at oral argument, but I think he may be on to something that could merit some time and energy as the Justices start writing all this up.

October 4, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (6) | TrackBack

Read (and read some more) about the oral argument

Helpfully, fellow bloggers and the traditional media continue to do a great job covering the essentials of today's SCOTUS arguments. The SCOTUS Blog has great posts by Tom Goldstein here and here, and the Blakely Blog fills out its play-by-play here and here.

And, the media chimes in on the argument through pieces from The New York Times, Legal Times, The Washington Post, The Baltimore Sun, The Dallas Morning News, and Knight Ridder. Bonus points to any reader who works through all these accounts and comments upon whether they paint similar or distinct pictures of what happened today. I can tell you that Dahlia Lithwick, as is her special gift, provides the most entertaining version of the argument at Slate here.

I have no plans to try to replicate any of these efforts. Rather, in a series of posts to follow tonight and tomorrow, I plan to contribute a variety of reflections about a variety of aspects of the arguments. I'll start, in a few minutes, with reflections on the Petitioner's arguments on applying Blakely to the federal guidelines.

October 4, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Media report on today's oral argument

Though many more will surely follow, here and here and here you can find the first reports on today's oral argument in Booker and Fanfan provided by the traditional media.

UPDATE: And now you can get the promised "reports from the front" from How Appealing here and from the Blakely Blog here. Both reports are fantastic, and I now have to go catch a plane. I expect by the wee hours tonight I will be able to share some more of my own perspectives on today's fun.

October 4, 2004 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

First reactions to the Booker/Fanfan oral argument

Though I will need many, many posts to fully capture my take on today's oral argument, a few moments of wireless access allow me to provide some quick first reactions.

First, I agree with Tom Goldstein's post here that the Blakely five will stay together to apply Blakely to the federal system. The pre-argument buzz was that Justices Souter and Ginsburg might shrink away from extending Blakely, but their questions to Acting SG Paul Clement (who did a brilliant job) suggested that they both were firm on this issue.

But oral argument also suggested everyone is still struggling with the remedy after concluding Blakely applies to the federal system. Justice Stevens pressed the SG about how many cases would really be impacted if Blakely applies to the guidelines, and this may be a critical concern for the Justices as they work through the severability question. (This also lead me to reiterate the plea I made here for the US Sentencing Commission to shed more light on this issue by making widely available whatever data it has assembled).

How (and when) the Justices will sort through the severability matters remains the biggest question in my mind after hearing today's arguments. More commentary -- a lot more -- later tonight.

October 4, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (2) | TrackBack

One last revving up for First Monday

I could not help but post one more time this morning to highlight that fellow bloggers are likely to have nearly up-to-the minute reports on today's arguments in Booker and Fanfan, or at least so claim Howard Bashman at How Appealing here and Jason Hernandez at the Blakely Blog here.

I expect that in the wee hours tonight I will have a chance to review their accounts and provide my own perspective on today's big argument. In the meantime, remember you can check out some of my recent posts of note here and other Blakely basics here.

October 4, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

October 3, 2004

A final gearing up

I likely won't get a chance to post at all tomorrow as I spend the day around the Supreme Court and attend the Booker and Fanfan arguments, and then fly back home in the evening. I plan to report on the arguments no later than Tuesday, though I suspect traditional media outlets will do a better and quicker job than me on the essential play-by-play.

As a final prep for the big day, Linda Greenhouse has here her preview of the coming SCOTUS term, with Booker and Fanfan getting the lead. And The Christian Science Monitor has this thoughtful article about these cases. And Jason Hernandez of the Blakely Blog has done some interesting forecasting here about the oral argument and here about the possible outcome in Booker and Fanfan.

October 3, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Inside the Beltway and thinking about Congress

I am now inside the Beltway and gearing up for tomorrow's action in the Supreme Court. But Professor Mark Osler's sobering report from DC (details here) has me really thinking about the likely action in Congress after Booker and Fanfan are decided (whenever that might be).

In written testimony a few months ago, I encouraged Congress to "go slow" in response to Blakely (available here). But though Congress has been patient so far, Professor Osler's report suggests that Congress (aided by the Department of Justice) has its pencils sharpened with plans to write and enact a litany of mandatory minimum statutes if the existing federal structure is nicked in any way by the rulings in Booker and Fanfan. However, while in transit today, I thought of at least a few legal and policy factors that should give Congress pause before rushing forward with a raft of new mandatory minimum sentencing statutes:

1. The ruling in Harris is not rock solid. Though everyone seems to assume mandatory minimum sentencing is immune from the Apprendi/Blakely rule due to the High Court's decision in Harris, Justice Breyer expressed great reservations about his vote in that case. If Congress passes an array of mandatories after Booker and Fanfan, serious reconsideration of Harris might come sooner rather than later.

2. Judge Cassell might lead an Eighth Amendment charge against mandatories. Judge Cassell's serious questioning of the substance of mandatory sentencing outcomes in the Angelos case (discussed here) could set a model for other judges concerned about harsh mandatory outcomes. If Congress passes an array of mandatories after Booker and Fanfan, judicial questioning of the application of mandatory minimum statutes could become the norm rather than the exception.

3. High-profile cases show the flaws of severe mandatories. While Judge Cassell is putting the spotlight on the harsh possibilities of mandatory sentences, the lenient plea deal struck by football star Jamal Lewis spotlights the impact of prosecutorial discretion in the operation of these laws. As this article details, Lewis is accused of an offense with a 10-year mandatory minimum, but apparently a pending plea deal will mean he serves less than six months. If Congress passes an array of mandatories after Booker and Fanfan, scrutiny of prosecutorial discretion in the operation of these laws might become more significant.

4. The federalism revolution might really come to criminal law. As many SCOTUS preview articles highlight, another huge criminal case this fall considers, in the context of a medical marijuana case, Congress's authority to criminalize "local" drug crimes. If Congress passes an array of mandatories after Booker and Fanfan, the courts could get even more serious about requiring a serious connection to commerce before allowing federal criminal laws to operate.

October 3, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

And away we go

Today marks First Monday Eve, a day that is always exciting for a law geek like me. And in today's newspapers, we find still more interesting SCOTUS preview articles (previous pieces in this genre can be found here and here). For example, this article suggests we can expect a "nuts-and-bolts term," while this preview article predicts "more drama," while this article optimistically asserts that the High Court will "clarify confusing opinions." Distinctly, here is an interesting op-ed about Justice Clarence Thomas, and Howard Bashman at How Appealing has his usual comprehensive coverage for your reading pleasure.

But of course, for a sentencing geek like me, First Monday this year is extra exciting because of the Booker and Fanfan arguments scheduled for tomorrow afternoon. And today's papers have some effective coverage of these cases: this article does a nice job going over the basics, as does this article from Maine which also gives special attention to the Fanfan case. This piece from Oklahoma discusses the local angle vert well, as does this piece from California (despite misspelling Blakely). And, not surprisingly, this article at law.com provides the most legalese about the case in its review of the parties' arguments.

Joyously, thanks to a long-time friend and colleague, I was able secure a ticket to tomorrow's argument. I head to DC later this morning and may be off-line until Tuesday morning while traveling (though I do hope to have a hotel internet connection late tonight). Though I would blog live from the SCOTUS argument if that was permitted, I may not get a chance to report on the arguments until Tuesday. Helpfully, Jason Hernandez of the Blakely Blog reports here that has made arrangements for transcription of his thoughts of the big event and I would expect the big hitters at the New York Times and Wall Street Journal will do a great job reporting on the argument in the more traditional media outlets.

October 3, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Ivory tower optimism meets inside the Beltway realism

I explained earlier this week here why I am optimistic about the future of sentencing reform, but I have conceded here that meaningful sentencing reform may seem much more possible when considered from the ivory tower than from inside the Beltway. Additional proof of these dynamics comes from a set of "DC Observations" I received from Baylor Law Professor Mark Osler this morning.

Long-time readers know that Professor Osler (writing now, of course, from the ivory tower) has suggested one of the most sensible and straight-forward "solutions" to reforming federal sentencing after Blakely. (Professor Osler's thoughtful "3x Solution" can be accessed here.) But, after a trip to DC for research purposes, Professor Osler shares these sobering observations of the future of federal sentencing reform:

Below are my four principle observations from my DC adventure:

1. In the end, Booker and Fanfan aren't very important (unless the Court does not apply Blakely to the Guidelines). As you have written, given the composition of the Blakely majority it is hard to believe that anyone in the majority will defect, and it is clear that Blakely will be applied to federal sentencing. All of our fussing about severability, however, will be pointless. Once Blakely is applied to federal sentencing, Congress will act, regardless if all or part of the Guidelines fall. It is Congress, not the Court or the USSC, that will remake sentencing — the Court's role will be just to provide the impetus for change, and the USSC's job will be to follow very specific Congressional mandates, ala Feeney.

2. Once the Guidelines fall, there will be no great debate on what comes next. Rather, as with Feeney, the new rules will come down without significant debate. Newt Gingrich has a lot to do with this. When he became House Majority Leader, he did two things to the process: (1) He curtailed the power of the committee chairs, increasing the power of the party whips; and (2) He halved the staffs of the committees. This latter change had profound effects. Because there are no longer enough staffers to write legislation, this job is largely performed now by lobbyists. On any given bill, the Republican powers assemble relevant lobbyists to draft legislation (at least on the House side) and pass it in party-line votes. For sentencing matters, the relevant lobbyists are from DOJ — they will, in the end, write the new legislation in the House. This means more mandatory minimums are on the way because that will be Main Justice's preference (as evidenced by the recent letter-to-the-editor campaign by DOJ bolstering current minimums), despite the opposition to same from AUSA's who actually try cases.

3. Don't count on decision-makers caring much what you think. Once I was convinced that the House was not approachable based on the above, I put on a full-court press to meet with someone from the office of Sen. John Cornyn (R-Tex), who is on the Senate Judiciary Committee. I contacted Cornyn's office by phone, email, and fax seeking only a few minutes with a staff member. In my communications, I made it clear that I was a constituent, and that I was a former AUSA who now teaches sentencing law in Texas. My pleas were ignored, and my calls went unreturned.

4. Finally, in all of the academic discussion of these matters, almost no one has discussed what may be ultimately most important: The election. That may be because many of us (myself included) are not very partisan politically. However, we can't ignore politics in making our prognostications. If Bush wins (and a Republican majority remains in the House, a near-certainty), all of the above will remain true. If Kerry wins, all of the above may also remain true, but there is a chance it won't. If the new legislation is stalled until a new administration comes in, the difference won't be at the end of the process (Kerry's ability to veto) but the front end — it is likely that the new AG will be less inclined to lobby for mandatory minimums, and will have a broader mind as to what reforms will be considered.

All of Professor Osler's observations are trenchant and provocative, and I hope I might reflect and comment on them late tonight. But, as I will explain in a following post, I am soon to be heading inside the Beltway myself, and I am now ever more fearful of what I will discover upon leaving the lovely confines of the ivory tower.

October 3, 2004 in Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1) | TrackBack