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January 12, 2005

Questions and omissions

Looking back: What happens now to all the superceding indictments that were filed all summer long in thousands of cases?  What happens in all the cases sentenced under the (formerly mandatory) guidelines without Blakely factors that now have to be processed through the new world order (e.g., Martha Stewart)?

Looking forward: Based on a very quick search, it appears that the opinions for the Court in Booker and Fanfan do not even mention Harris or Almendarez-Torres.  Thus, it seems we today know nothing more about the long-term viability and application of these critical exceptions to Apprendi than we knew yesterday.  I am not sure I know how Congress and the US Sentencing Commission can build a new system on the uncertain foundation Booker and Fanfan has left, but I surmise they are going to have to try.

January 12, 2005 at 01:56 PM | Permalink


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Tracked on Jan 12, 2005 3:20:27 PM


Almendarez-Torres isn't mentioned by name, but the "any fact (other than a prior conviction) . . ." statement of the Apprendi rule remains.

Posted by: JDB | Jan 12, 2005 2:07:23 PM

Harris's omission may be particularly important given the discussion of McMillan in Stevens's majority opinion (which more generally reads as though his Apprendi majority had been untarnished by a loss in Harris).

JPS reintroduces the notion (rejected in Harris) that Apprendi problems emerge for anything that augments "the range of sentences possible for the underlying crime." Also, mmimums are described as part of the (impermissible) legislative movement "to increase the judge's power and diminish that of the jury."

As for A-Torres, for whatever it's worth, JPS's dissent still seems to pay lip-service to criminal history as different. (See Part II, para. prior to Stuntz block quote).

Posted by: Craig Green | Jan 12, 2005 2:10:16 PM

A critical question unanswered is what is the "statutory maximum" for Apprendi purposes? Is it the actual stat max (e.g, 10 yrs) and anything is ok within that (subject to "reasonableness").

The better argument, as suggested in Stevens' dissent is that the base offense level under the Guidelines still sets the "statutory max" for apprendi purposes. Any enhancements that would increase the exposure above that range must have been pled in the indictment and proved BRD to the jury or admitted BRD by the defendant.

(Defense Attorney)

Posted by: Matthew Siroka | Jan 12, 2005 3:11:20 PM

I think it is the actual statutory max, as set forth in the US Code. Stevens's opinion holds that the Guidelines created statutory maximums because they requires increased sentences beyond those authorized by the jury verdict or guilty plea. But now that, thanks to Breyer's opinion, the Guidelines aren't mandatory, they cannot set any maximums or minimums, statutory or otherwise. So a guilty plea to one .1 gram sale of crack now has a statutory max of 20 years (pursuant to 21 USC 841), where under a Blakeyized mandatory Guideline scheme it would have been 16 months (assuming no criminal history).

Posted by: JDB | Jan 12, 2005 3:26:46 PM

I am a defense attorney who just finished a Blakely-ized trial for conspiracy to commit bank fraud and bank fraud. The indictment alleged the sentencing factors and the jury returned findings on them. We are now preparing for the sentencing and would like to argue that the jury's loss findings were unsupported by the evidence. I'm still trying to sort through Booker and Fanfan and I am curious if anyone had any thoughts.

Posted by: David | Jan 12, 2005 3:27:38 PM

JDB - I'm hoping you're wrong, although it is the most straightforward application of Booker. The irony is that this makes the 5th and 6th Amd protections of Apprendi/Blakely very hollow indeed. All that need be pled and proved BRD is the bare elements of the offense as described in the US Code. All of Jones/Apprendi's lofty talk about the constitutional signficance of "enhancing factors" (i.e. that they are "functionally equivalent" to elements)is by the wayside.

This begs the question, then: what makes a post-Booker sentence "unreasonable."

Moreover, the argument in favor the Stevens dissent position is that it is more in keeping with Congressional intent re: sentencing disparity. If the statutory max is what's in the USC then the judge one again has tremendous discretion.

Which brings us back to what makes a sentence unreasonable.

Posted by: Matthew Siroka | Jan 12, 2005 3:45:19 PM


You're the converse of an earlier post I made today on this blog suggesting that a defense lawyer continue with the pending jury sentencing phase if he thought the jury would likely not find something proven BRD that the judge might find by a preponderance.

Now, faced with a BRD jury finding, you'll have a tough time collaterally attacking it before a judge who's probably required only to use a preponderance standard. My recommendation is to argue that the jury phase turns out not to have been authorized under the Sentencing Reform Act after all and that the findings are, therefore, a nullity, even as a matter of colleral estoppel because there was no jurisdiction for the jury to make these findings (the latter point is a tough one, tho).

Of course, you'll now be able to argue to the judge that he or she isn't bound by the guidelines and can use the other 3553 factors to decide a just sentence but as far as arguing that the jury's findings were not supported, I'd expect the "rational juror" test to be applied.

Posted by: Alex E. | Jan 12, 2005 4:02:05 PM

We had recently gone through a trial where NONE of the enhancements were added into the indictment, then in the middle of the trial the judge agreed to the prosecutions "additional facts" so after the defendant was found guilty, the judge instructed the jury to find loss, and fraud amounts.
Of course we are attacking double jeopardy, but what about the due process right to being able to create a defense to encompass all the facts that are relevant, our defense did not include the enhancements because we had no knowledge or formal presentment. Didnt the government start putting these "enhancement" into indictments for a reason?

Posted by: Jessica T. | Jan 12, 2005 4:02:43 PM

As a defense attorney here's what I see is the bottom line. The guidelines sentence will be calculated just as before but be only advisory. We will be free to argue for a more "just" sentence by urging the judge to consider the other statutory factors as laid out in the decision. We will also be able to argue, I think, that things listed as impermissible bases for downward departures can no longer be impermissible because the impermissibility of these bases is now only advisory. Therefore, things like addiction, upbringing, family commitments, etc. should all be on the table. That brings up discovery issues as well. Stuff that previously wasn't discoverable because of irrelevancy, etc. now is because the field seems wide open as to what can be argued at sentencing. Better than before? In some ways. But a Stevens majority all the way around would have been much better.

Posted by: Bob Kolstad | Jan 12, 2005 5:14:26 PM

I have a question, and I would appreciate it if any can respond. Since the court determined Blakely applies to federal sentencing guidelines, does this mean the decision is retroactive?

Posted by: Giovanni LoPresti | Jan 12, 2005 5:23:39 PM

Bob wrote:
"We will also be able to argue, I think, that things listed as impermissible bases for downward departures can no longer be impermissible because the impermissibility of these bases is now only advisory. Therefore, things like addiction, upbringing, family commitments, etc. should all be on the table. That brings up discovery issues as well. Stuff that previously wasn't discoverable because of irrelevancy, etc. now is because the field seems wide open as to what can be argued at sentencing."

Yes, Bob, but I'd be careful arguing about impermissible factors for a number of reasons. First, many post-SRA judges (meaning those appointed after 1984) are firmly entrenched in the Guidelines, and they might be nervous about applying impermissible factors (as opposed to a more generic balance of equities deterrence punishment, etc equasion)
Second, similarly situated appellate court judges might think that it would be "unreasonable" to consider an impermissible factor unless there was good cause to do so (instead of using a balance of equities--punishment, gen and spec. det., etc). Because then Scalia's worries presented in his dissent would really come true (courts' are as free as they were pre-Guidelines) and, in a macro sense, Congress would be more likely to enact rediculous knee-jerk reactionary legislation (like mandatory minima). Of course, on a case-by-case level, these arguments are not necessarily relevant... but still... just looking out for the big picture.

As to retroactivity -- did anyone else catch JPS's last few lines in his majority opinion? "Accordingly, we affirm our holding in Apprendi:..." (in other words, not a "new rule" for purposes of retroactivity??)

Posted by: District Clerk Battling Blakely | Jan 12, 2005 5:47:40 PM

Giovanni -- I'm no expert at retroactivity, but if I were to guess, I'd say not available on habeas relief (because, for no other reason, it appears that the second majority gave every defendant whose case is open or on direct appeal the right to be resentenced, whether or not there were sixth amendment problems with their case... to allow that part of the decision to be applied retroactively would, in effect, allow EVERY PRISONER to be resentenced under the "new" (old) scheme. I know SCOTUS is rather removed from day-to-day actions of courts (and NEVER makes result-oriented decisions... har har) but that just wouldn't happen.

Posted by: District Clerk Battling Blakely | Jan 12, 2005 5:51:08 PM

I agree with B. Kolstadt. And remember, Chapter 7 of the guidlines (revocation) has always been only advisory. Yet judges on the whole have complied with them. This will be determined in each of the circuits. And they will all do things differently. Those that have been more compliant with the guidlienes will continue to do so, others, like the 9th Cir. won't.

As to retroactivity, Justice Breyer said:
As these dispositions indicate, we must apply today’sholdings—both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act—to all cases on direct review. See Griffith v. Kentucky, 479 U. S. 314, 328 (1987) (“[A] new rule for the conduct of criminal prosecutions
is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception forcases in which the new rule constitutes a ‘clear break’ with the past”).

Posted by: Sharon V. retired fed | Jan 12, 2005 7:37:53 PM


I've been struggling with similar language in Blakely and Schriro (that the Court was'applying Apprendi' & 'our precedents make clear').

I think I've concluded that these statements do not, in and of themselves, satisfy the Teague standard (no reasonable jurist). Would be interested to hear your thoughts.

Posted by: Ron O'Neal | Jan 12, 2005 7:46:10 PM

Thank you for your response. I must assume the Great Writ's basic objectives--protecting the innocent against erroneous conviction or punishment and assuring fundamentally fair procedures is meaningless. It's kind of unfair for a new defendant to get the benefit of Blakely, and deny thousands of prior defendants of the same benefit. Finality seems to be more important, rather than correcting the wrongs that have been inflicted on some many people. How can finality be justified, when the law is constitutionally infirm?

Posted by: Giovanni LoPresti | Jan 12, 2005 8:30:07 PM

Has anyone considered what Stevens's interpretation of Edwards v. United States means for the elements of a drug conspiracy? My circuit (the Fifth) and others (the First) rely on Edwards to hold that the jury must find drug quantity for the conspiracy as a whole, but quantity "attributable" to the individual defendant is a sentencing factor for the judge to decide. Is that interpretation of Edwards undercut by the language in Stevens's Booker opinion (assuming, post-Booker, the only quantity determinations for the jury are those that distinguish 841(b)(1)(A) offenses from 841(b)(1)(B) and 841(b)(1)(C))? We, of course, want to argue that whether the defendant agreed to join a 50+ gram crack conspiracy or a less-than-50 gram crack conspiracy is for the jury.

Posted by: Robin Schulberg | Jan 13, 2005 3:19:31 PM

Dear Sir:

I am a defense attorney in Nashville with this question. Justice Stevens rights on page 8 of the majority opinion "We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range." Citing Apprendi, at 530 U.S. 481. My question is this: Is the "maximum sentence" whatever the statutory maximum is for the particular crime that the defendant has been found guilty of by a jury (or pleads guilty to), so that any sentence up to the statutory maximum will pass constitutional muster, subject only to the reasonableness standard on review?

Thanks for your time.

David Cooper

Posted by: David Cooper | Jan 13, 2005 3:22:10 PM

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