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January 25, 2005

More stunning post-Booker work from a district court

As I noted in this post after reading Judge Cassell in Wilson (basics here, commentary here and here), the new federal sentencing structure will be really built from the ground up, opinion by opinion.  And today I am pleased to be able to share (downloadable below) the contribution of ND Okla Chief Judge Sven Erik Holmes, who has entered an order in US v. Barkley, 04-CR-119-H (ND Ok. Jan. 24, 2005), addressing his view of sentencing post-Booker.

Chief Judge Holmes, as some may recall, did important pathbreaking work post-Blakely in US v. O'Daniel (details here and commentary here).  And we get more of the same in Barkley, as Chief Judge Holmes concludes, in answer to a question I raised in this post, that "pursuant to the discretion granted in Booker, courts may constitutionally apply the Guidelines if the manner of application fully protects the Sixth Amendment rights articulated in Blakely....  [And] law, policy, and common sense dictate that this Court should exercise its discretion by strictly applying in all cases the Guidelines, modified to satisfy Blakely." 

In other words, Chief Judge Holmes has decided in a remarkable opinion in Barkley that the discretion afforded by Justice Breyer's remedial opinion for the majority in Booker allows him to adopt the remedy proposed by Justices Stevens and Scalia in their remedial dissents!  I will need a lot of time to take in this opinion, but I especially want to highlight that Chief Judge Holmes supports his ruling by suggesting that "when Congress undertakes to develop a new sentencing system in accordance with Blakely, there will be a body of judicial experience to inform the development of these policies."

Lots of commentary soon to follow on this fascinating and important ruling.  For now, let me just quote in full the Barkley opinion's introductory passage:

[T]he Court finds as follows: (i) under Booker, the Sixth Amendment rights set forth in Blakely apply to the Guidelines; (ii) pursuant to the discretion granted in Booker, courts may constitutionally apply the Guidelines if the manner of application fully protects the Sixth Amendment rights articulated in Blakely; (iii) law, policy, and common sense dictate that this Court should exercise its discretion by strictly applying in all cases the Guidelines, modified to satisfy Blakely in the manner described more fully below; and (iv) in the instant case, the Guidelines should be applied consistent with the principles described in Blakely and Booker, and as a result sentencing Defendant under the Guidelines here will be constitutional.

Download cj_holmes_barkley_opinion.pdf

January 25, 2005 at 01:04 PM | Permalink


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While there are some good points to this decision, doesn't fail utterly to take into account the 3553 factors? Doesn't it thereby become appealable on those grounds with a remand to consider those factors? This decision seems pretty lawless to me.

Posted by: Bob Kolstad | Jan 25, 2005 3:29:26 PM

I have to agree... From my quick read of the decision, the tone of the whole opinion seems to be: "The remedial majority decided that Congress would rather have nonbinding Guidelines but I don't agree. Therefore, I'm going to continue doing what I have been doing since Blakely, regardless of the explicit instruction I've been given by SCOTUS." There are no mentions of 3553(a) factors, an explicit denial of the reinvogorated responsibility of a judge to make individualized determinations, and even a lack of recognition that, well, Blakely is for the states and Booker is the (only) word for the Feds. Blakely principles may apply, but SCOTUS has rejected the exact remedy utilized.
Judge Holmes appears to think he's "sneaking" out of this because (1) he's using his "discretion" in formulating his plan and (2) as long as the sentence passes Blakely constitutional muster, it will be OK. But just because a sentence would be constitutional under a Blakely standard doesn't mean that it will be "reasonable" under Booker. (Because, IMO, the Booker reasonableness standard is grounded in due process rather than in the Sixth Amendment right.) Therefore, I would speculate that an appellate court would say that a particular binding Blakey-ized Guideline sentence could be unreasonable if the lower court does not consider the remaining 3553 factors (it could either be too high or too low....) and make a reasoned, individualized determination that the guideline sentence is appropriate (or that the modified guideline sentence is appropriate).
This is the same as the crazy, pre-Blakely appellate standard about departures. 'Round these parts, a district judge's failure to depart is unreviewable so long as the judge realized he had discretion to depart and chose not to exercise it. Here, it looks like Judge Holmes is explicitly stating "I do not realize I have discretion." That sounds "unreasonable" to me.

Posted by: District Clerk Battling Booker | Jan 25, 2005 4:19:16 PM

It seems somehow appropriate that a district judge who uses his "discretion" to ignore the Supreme Court would also repeatedly misspell a Justice's name. (See pages 12 & 13).

Posted by: CA law clerk | Jan 25, 2005 4:27:41 PM

Holmes looks a little like an idiot here,huh? Sounds like he's just been itching to put his two cents worth in...now he's done it and will prove to be foolish. I'm afraid the judges like Holmes will use their opportunity post Booker to finally have their say...scarey!

Posted by: Fred | Jan 25, 2005 4:33:46 PM

After reading Holmes I can see why Congress did what they did to reform sentencing. Any more opinions as stupid as Holmes and Congress will have to ask the President to conduct an idiot test before appointing any more judges to the bench.

Posted by: Fred | Jan 25, 2005 4:38:55 PM

I agree with the prior comments. This decision is “pathetic”. I may have come to the same conclusion - for the “final sentence”, but the means to justify the process seems very odd and disgraceful. The Hon. Judge should have kept his mouth shut, if he cannot articulate his reasoning and his method to arrive at the conclusion. Instead, he keeps on harping the “mandatory” guidelines as the sole “benchmark and barometer” for his process. The guidelines are advisory and one can articulate from that point on, to arrive at the proper destination. Sorry to see, that we have such judges on the bench, who should have been taught in their jurisprudence class the fundamental and the sanctity doctrines of “equity, justice and fairness”

Posted by: AKS | Jan 25, 2005 5:30:35 PM

Obviously, the Okla. Chief Judge disagreed with the holding of the remedial majority in Booker. And his decision appears geared toward paving the way to circumvent the remedial majority's holding. But is this effort at circumvention any less palpable than Justice Breyer's effort to circumvent the constitutional holding in Booker?

Posted by: Victor Haltom | Jan 26, 2005 11:40:11 AM

I'm a little surprised at all the animosity directed toward a judge who is doing his best to reconcile the competing principles that guide the Stevens and Breyer decisions. It seems to me that many judges will ultimately conclude that the most reasonable sentence (and the one most respectful of the right to jury trial) will be guided by facts that the government proves beyond a reasonable doubt.

Posted by: TChris | Jan 26, 2005 1:05:50 PM

I think the animosity stems from the fact that the judge basically said, "I don't agree with Breyer so I'm going to ignore his opinion." There was no discussion of any 3553(a) factors, except for the Guideline range, which the Court now requires district courts to consider at sentencing. Maybe they would have changed the outcome, but we (and the Circuit court that reviews this sentence) will never know, because the judge just ignored them.

The judge in Barkley could have rightly concluded that Booker requires (or at least allows) jury finding beyond a reasonable doubt for facts that set the Guideline range and then moved on to a consideration of that range and other relevant factors. Instead he just breezed right past them.

Posted by: JDB | Jan 26, 2005 1:30:34 PM

I think the Barkeley opinion is werry good.

Posted by: PG | Jan 26, 2005 2:37:59 PM

To a certain extent, I have to agree with the principle of Judge Holmes opinion cause it would be improper for a defendant to get to take a plea and then, try to resurrect their right to a jury trial only because they think that they will get a sentencing windfall. If the defendant had taken this matter to jury trial before Blakely, I would expect a different result. But given the fact that he waived his right to a jury trial and took a plea, I cannot sympathize.

Posted by: Laura | Jan 26, 2005 7:32:51 PM

for Laura

This is not about sympathy - those may be trial tactics (even bargaining tactics), which have been utilized and employed both, by prosecutors and defense attorneys in various phases of a criminal proceeding. The end result should probably be the SAME (at least I would arrive at the similar result). But the "means to achieve the end" is really in question as to the Judge's disposition (or lack thereof) of the legal precedents and the prevailing law as should be applied in a more responsible way.

Posted by: AKS | Jan 26, 2005 9:37:37 PM

Before I begin, I must disclose that I am a former law clerk for Judge Holmes.

As a criminal defense attorney, I really actually like this opinion quite a lot, prior affiliations aside.

It's clear from Judge Holmes' opinion, and I tend to agree, that what is at the heart of Booker and the Court's discomfort with the Guidelines, is not the right to a trial by jury, although that is the vehicle by which we get Booker. It is the notion that sentencing factors found by a judge under the Guidelines are subject to a lower burden of proof than those facts found by a jury. That is what has been so disturbing about the Guidelines for me -- the notion that we are putting people away for long long periods of time without requiring the factfinder to clear that high hurdle of "beyond a reasonable doubt" and thus, prosecutors get to end run not charging certain offenses because they have bad facts by simply getting higher sentences under "relevant conduct" under a lower burden of proof.

It's especially applicable and true in cases where quantity or loss must be established that the lowered burden of proof seems so -- unfair, and yet it is in these types of cases that the Guidelines are most needed to ensure uniformity across the country. A guy who distributes a kilo in Manhattan should, in theory, get the same sentence as the guy who distributes a kilo in, say, El Paso or Sioux City. But we as a society need to be damn sure before we stick someone in prison that we've PROVEN that those guys in fact dealt a kilo, beyond a reasonable doubt.

Booker has for the time being revolutionized how the federal criminal defense bar is looking at sentencing, and that's good. But it has also created a lot of uncertainty, and that is not so good for those of us in the trenches. Yes, we can be creative, and yes, there's lots of opportunity to bring in information we couldn't use before. But it also leaves our clients particularly vulnerable to the peccadilloes of individual judges. I don't like that. And that is precisely what Judge Holmes seeks to limit -- the uncertainty and unfettered discretion that is keeping us (well, at least me) awake at night.

Will Judge Holmes' opinion be appealed? Absolutely. Will he be reversed? Probably. Has he spoken unequivocally to the Sentencing Commission about how to intelligently solve the problems Booker has created in the trenches? Yep.

Posted by: Donna Thompson-Schneider | Feb 4, 2005 12:54:05 PM

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