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January 12, 2005

The remedy mess

Rightfully, I am already being asked by many "Now what?"  Of course, the answer to that question has many institutional permutations: Now what for Congress, now what for the Sentencing Commission, now what for state actors of all sorts.  But I am especially scratching my head on the "now what" question for all the federal cases "in the pipeline."  Here's the cryptic final paragraph from Justice Breyer on these issues:

As these dispositions indicate, we must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review.... That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the "plain error" test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.

I must admit that I am not completely sure what this means for on-going cases, except that we are likely to have lots and lots of litigation over what this means for on-going cases.  In addition, it seems that, as suggested in my prior Rule by Judges post, the instruction that "reviewing courts [are] to apply ordinary prudential doctrines" will ensure that appellate courts have enormous sentencing powers in the days ahead.

I am especially eager to hear from litigants and lower courts personnel if they are any concrete idea what this means -- or, more generally, on how advisory guideline sentencing is really going to work.

January 12, 2005 at 12:19 PM | Permalink


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Surveying the blog scene, this is shaping up to be an active week in blogshere: First and foremost, The US Supreme Court's announcement of the Booker and Fanfan decisions has created much buzz in the legal blogs. You will hear... [Read More]

Tracked on Jan 12, 2005 3:58:48 PM


It looks to me like it will start off pretty much the way that guideline sentences always worked. The government will provide a position paper to the Probation Office, the defendant may object, and the Probtation Officer will file a presentence report. The parties will then, if they object, file briefs stating their sentencing positions. The judge can (should?) then hold a sentencing hearing to decide the guideline range. The prosector, on most issues, will have the burden by a preponderance. (That will include proof of relevant conduct, such as extra drugs, fraud, etc.) The court will then decide the guideline range, and either sentence within the range, or explain why he/she is sentencing outside the range. If the departure from the range is slight, nobody will appeal it (though the guideline calculations may be appealed, if the defendant disagrees, or the prosecution thinks a substantial error was made). If the departure is substantial, the disaffected litigant will appeal.

Posted by: A prosecutor | Jan 12, 2005 12:28:50 PM

I am a criminal defense attorney. Any ideas of what Booker and Fanfan mean for collateral review? Does Summerlin mean that Booker and Fanfan do not assist Defendants whose judgments are now final? Thanks.

Posted by: Anne K. Albright | Jan 12, 2005 12:36:09 PM

I have more general concern: I had though that Booker would resolve the question whether Scalia's dissent in Neder -- i.e., failing to submit elements for jury determination is structural error -- applies to Apprendi/Blakely errors.

Since the Court excised the Guidelines, anyone who preserved a 6th Amendment violation will likely get a remedy, but the remedy will be to remand for resentencing under the "severed" regime. Does anyone have an opinion as to whether Booker/Fanfan affect Neder?


Posted by: Steve Sanders | Jan 12, 2005 12:36:57 PM

At the end of Breyer's opinion pg. 25 he indicates that this opinion will apply to all cases on direct review. This must mean they regard this as a "new rule". How then could the Stevens opinion continually reference the fact that this is an application of Apprendi and within the "Apprendi line" of cases? Wouldn't someone who AT LEAST preserved the Apprendi issue at sentencing and appeal have the right to relief? This is rather confusing. I am not an attorney but a paralegal who works with pro-se defendents. Any thoughts?

Posted by: Anne | Jan 12, 2005 12:43:40 PM

I know a mail fraud case where the defendent and the federal govt agreed in a plea bargain to put forth the sentence increasing and decreasing facts before a judge.The facts in the plea bargain give the defendant a sentence of 18 months by applying the guidelines.This is a case that has been going on for 5 years. The federal judge has stated several times that there has been "serious deprivation of defendant rights in this case".

My questions:
Will the new decision limit the defendant's exposure to a max of 18-24 months based on the conduct that the defendant agreed to in the plea?

or is the 18-24 mths itself not valid as they were based on the guidelines?

The defendent is not asking for a new sentencing jury. Can the govt ask and get a sentencing jury and if so will that deprive the defendent the right to not having double jeopardy (the govt could rework their faults from the first sentencing before the judge)

Can the defendent put forth new motions before based on what the judge said in open court that there has been "serious deprivation of defendant rights in this case".

If the govt is willing to agree to say a 12-18 mth sentence, is it better to take that?

Or is it better to ask the defendent to take his chance that the judge will give him something lower based on the judge's feelings expressed in open court.

Law student

Posted by: Christopher Stewart | Jan 12, 2005 12:45:01 PM

I agree with "A prosecutor." Courageous district court judges who want to move off the guidelines (is there such a thing as a departure now?) will load the record with reasons that will be reviewed by the court of appeals. Will they be deferential despite the "reasonableness" language? I think that will depend on the circuit. I'll bet there will be evolving caselaw on different levels of deference based on whether the "departure" is favored or disfavored.

Defendants challenging a sentence within a range will have a tough time arguing that it was "unreasonable," since the courts of appeals will likely defer to the Sentencing Commission's "study" of these issues.

So, I believe this will be a one-way ratchet that may help defendants get and defend lower sentences from judges who disfavor the guidelines and hurt defendants who appeal sentences from judges who favor them.

What a mess but still better than where we were on Tuesday of this week.

Posted by: Alex E. | Jan 12, 2005 12:48:11 PM

on further reflection, the very fact that the Court granted a remedy to Booker -- i.e., remanded for resentencing -- without applying any harmless-error analysis (or directing the Seventh Circuit to do so on remand) means that the error is structural . . . .

Posted by: Steve Sanders | Jan 12, 2005 12:56:35 PM


See my responses to your other post of this question. http://www.typepad.com/t/trackback/1662930

Posted by: Alex E. | Jan 12, 2005 1:10:05 PM

Sorry, http://sentencing.typepad.com/sentencing_law_and_policy/2005/01/rule_by_judges.html#comments

Posted by: Alex E. | Jan 12, 2005 1:11:22 PM

But if Blakely error is structural error, how could plain error review apply? And wouldn't a structural error also probably be retroactive?

Posted by: Bob (appellate attorney) | Jan 12, 2005 1:12:59 PM

So let me sure I understand this catastrophe.

1) The guidelines are advisory and the sentencing courts can now do whatever they want within the stated statutory maxim, not the "relevant statutory maximum."

2) A presentence report would still be prepared by a probation officer and it will simply state, "If the guidelines were in place they would dictate a sentencing range of XX-XX months, but the guidelines are advisory only and you can sentence the defendant from probation to 10 years."

3) The government no longer has any burden of proof at sentencing on the "sentencing enhancments" because the guidelines are only advisory. Essentially everything comes in at sentencing and the Judge just gets to sentence the defendant to whatever he/she wants to.

4) For all of my clients that are on direct appeal pursuant to Blakely/Booker/Fanfan, the Court of Appeals now will simply determine whether the sentence was unreasonable in light of the statutory maximum.

Well this has simplified my practice. If the government comes at me with your standard felon in possession case and they do not give me a Rule 11(c)(1)(C) agreement as to a sentence then I might as well go to trial. My sentence could be higher or it could be lower, but I cannot give my client any reasonable guarantee about what the sentence should be.

My appeals will now only be for trial errors because the unreasonableness standard is so vague and the Fifth Circuit is so generous with unreasonableness...

Posted by: AFPD | Jan 12, 2005 1:14:16 PM


If Booker is getting re-sentenced, then every one of your clients who preserved the Blakely error will have to be resentenced. The court of appeals cannot review the sentence for reasonableness under the abuse of discretion standard unless the district court has applied the proprer standard (advisory guidelines) in the first instance, no?


Posted by: Steve Sanders | Jan 12, 2005 1:27:16 PM

Does this eliminate "relevant conduct" time for cases on appeal?

Posted by: Shelly | Jan 12, 2005 1:27:34 PM

I've got a good one for anyone that can help. I tried a drug case in F. Ct. last May. Blakely was issued. We wrangled several months over what to do. On Monday we started our sentencing trial. I'm in day three with a jury empaneled. We just took a break to digest this. The original jury convicted of conspiracy to distribute more than 500 grams of a substance containing meth. Now the govt. is presenting evidence regarding role in the offense, a weapon enhancement and a lot more dope. My inclination is to send this jury home and let the judge sentence. Please email your thoughts to me - right away! I've got two more hours before the judge hears arguments.

Dennis Charney

Posted by: Dennis Charney | Jan 12, 2005 1:36:20 PM

I'm a defense attorney. I'm not sure I get it. If a fraud defendant is convicted but the loss amount is not submitted to the jury (as apparently it shouldn't be), what does it mean to say that the Guidelines are advisory if you first have to know the amount of the loss before you can take the Guidelines' "advice"? How can the judge decide that the loss is in a certain amount when the defendant is entitled to a jury trial on the issue?

Posted by: Fred Friedman | Jan 12, 2005 1:47:34 PM

I thought in order to "submit" those to a jury it has to be on a presentment of an indictment.

Posted by: Jessica T. | Jan 12, 2005 1:54:09 PM

What about if someone signed a Blakely waiver
before this recent decision? Would the waiver
trump this opinion and force the judge to
apply the unconsitutional aspects of the
guidelines (i.e. the amount of loss in a
fraud case)
Any ideas or help would be truly appreciated.

Posted by: Pat | Jan 12, 2005 1:54:27 PM

In response to Mr. Friedman, the defendant is only entitled to a jury trial on the loss amount, I think, if the guideline is mandatory. If it is advisory, as now held, the judge makes a guidelines determination under the old scheme, by the preponderance of the evidence, and then considers the guideline range in reaching his sentence (and presumably can't deviate too much from it without a good reason).

Posted by: A prosecutor | Jan 12, 2005 2:07:05 PM

I am ready to hire an attorney who is educated on all the Blakely/Booker updates. I understand we are unsure if this applies retroactively, but let's find out. Basically, the case involves a fire arm enhancement after the plea was signed. It was never admitted to being in connection with the crime, and in the PSI it was stated that it was not in relation to the drugs. Enhancing factors not plead guilty to are affected by this new rule, correct? I'm not a lawyer, I don't know much about law, I need a lawyer, because we are READY to try to make something happen and adjust this sentence so my husband can come home on immediate release. Anyone ready, willing, and able?

READY (Family member searching for guidance)

Posted by: READY | Jan 12, 2005 2:15:45 PM

If "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt," how can a judge then still determine a loss/drug amount that was not found by a jury, and enhance a sentence, notwithstanding that the FSG are advisory? Advisory or not, the Defendant's Sixth Amendment must still be vindicated. Would appreciate your thoughts.

Posted by: A defense attorney | Jan 12, 2005 2:23:22 PM

Because they guidelines are advisory only this enhancement does not implicate your clients 6th Amendment rights.

Posted by: steve | Jan 12, 2005 2:25:21 PM


If you think the jury is going to go your way but the judge would not (because of the different standards of proof, for example), then I'd argue you must stay with the jury using an analogue to double jeopardy in a bench trial (i.e., the jury has already begun to hear evidence). If it's the other way around, I'd hate to have to argue the judge wouldn't have to be bound by a jury finding, beyond a reasonable doubt. Even so, you could still argue the equivalent of "departures" whether the judge or jury decides the weight issue.

Maybe the jury wasn't required after all, but that's the assumption the parties acted upon, so you could argue that it's the same as if the government included elements in an indictment that needn't be there. I've never found case law supporting or rejecting that argument but as a matter of logic, you could say if it's in a Blakely-ized indictment (or some pleading), then the government is stuck with what it asked for.

Bottom line, I wouldn't be so quick to dispense with the jury process if you're not sure you get a benefit you'd lose if you proceeded with it. At the very least, I wouldn't drop the jury with only a few hours to think about this. Can you get a few days?

Good luck.

Posted by: Alex E. | Jan 12, 2005 2:28:32 PM

To Ready: There is noway that a firearm enhancement could of been applied to your husband's case if the PSI stated that the firearm was not in connection with the crime. The PSI would of made the determination one way or another. I think that you may not be aware of all the sentencing facts. Furthermore, despite what all Federal defendants have been lead to believe (by defense attorney's or jailhouse attorney's) any ruling on Blakely does not make them less guilty or anymore guilty for that matter.

Posted by: David | Jan 12, 2005 2:32:30 PM


Couldn't the judge have rejected the PSR's (favorable to the defendant) finding and agreed with the government after a hearing or argument, assuming the government objected to this finding? You might be right that the family member doesn't know all the facts but it's worth some more investigating to see what actually occurred.

Posted by: Alex E. | Jan 12, 2005 2:38:25 PM

Does the trial judge still have to rule on the objections to the PSI? I have a case ready for sentencing, actually more than ready, whene we have made numerous objections to the facts in the PSI. Does the judge still have to rule on these point by point. The Sixth Circuit has held that the District Court must rule on each objection.

Posted by: Gary Crim, defense attorney | Jan 12, 2005 2:42:44 PM

For what they are worth, here are my thoughts on retroactivity:

1. Anyone who failed to raise the issue at trial and on appeal is procedurally barred from raising a Blakely [Booker/Fanfan] claim on collateral review. See Bousley v. United States, 523 U.S. 614, 621 (1998). Note that the defendant must raise the issue of the facts being found beyond a reasonable doubt by a jury, not merely arguing against the merits of the enhancement.

2. Anyone who has previously filed a 2255 motion is barred from filing a successive motion under 2255. The Court did not specifically state that Blakely is to be applied retroactively, and therefore it does not allow an inmate to file a successive petition under 2255. See 28 U.S.C. § 2255 para. 8(2).

3. Anyone whose conviction became final over one year ago is prohibited from filing a motion under 2255. The rule in Blakely is procedural. It is the procedure by which a defendant is sentenced--by which trier of fact, by what standard--that is at stake. Blakely did not create a watershed rule, because the rule in Blakely does not implicate the accuracy of the conviction. See Teague v. Lane, 489 U.S. 288, 313 (1989) (noting that exception applies only to “those new procedures without which the likelihood of an accurate conviction is seriously diminished”). The Court remanded Booker and Fanfan for resentencing. The convictions stand. Therefore, Blakely would not restart the one-year limitation period. See 28 U.S.C. § 2255 para. 6(3). It is also possible that Blakely is not a new rule at all, but then it certainly would not restart the limitation period.

4. This leaves people whose convictions became final within the last year, who raised Blakely claims at trial and on appeal, and who have not filed a previous 2255. If Blakely et. al. did not announce a new rule, then anyone in this category could file a 2255 if their sentence was increased as a result of facts found by the judge. However, if Booker announced a new non-watershed procedural rule, then because Blakely did not announce a new rule re: the USSG--as the Court specifically stated that the USSG were not under consideration--then anyone whose conviction became final prior to today would be out of luck.

5. Of course, under Booker the judge could simply resentence the defendant based on the same criteria, which are no longer mandatory, or refuse to resentence if the existing sentence was not reasonable.

See generally Lilly v. United States 342 F. Supp. 2d 532 (W.D.Va 2004).

John Eisinger
Pro Se Law Clerk

Posted by: John Eisinger | Jan 12, 2005 2:52:22 PM


When did the 6th Circuit rule? Was it on your appeal or are you referring to the general practice it approved?

Anyway, I'd think if the judge is going to use disputed facts under the new scheme, you'd have to be given the opportunity to ask for a specific finding on them. The judge may all too happy to make them now (and by a preponderance) that he or she has that power again. Unfortunately, if the findings go against you, you'd now probably be limited on appeal to arguing that they were clearly erroneous, a tough task.

I don't think any court would countenance a sentence based on disputed facts without a finding. You might not get an evidentiary hearing to challenge them but if there wasn't a trial, you should push for one (the equivalent of a Fatico hearing here in the Second Circuit).

Posted by: Alex E. | Jan 12, 2005 2:55:22 PM

Ok, let me see if I have this straight. The Sixth Amendment guarantees that all facts relevant to sentencing enhancements must be proven beyond a reasonable doubt by a jury (see Stevens opinion). But since the mandatory provisions of the Sentencing Guidelines have now been excised, the court should evaluate all sentencing factors so long as the court views the Guidelines as merely advisory and not mandatory in nature (see Breyer opinion).

Maybe I am overlooking something, but it seems to me that there may be an argument that post-Booker, although it is within the court’s discretion to determine to what extent to apply the Sentencing Guidelines, to be consistent with the Sixth Amendment the court’s determination of factors not proven by a jury, must instead/now be proven by the court beyond reasonable doubt. What do you all think?

Posted by: Michael K. Bachrach | Jan 12, 2005 3:10:58 PM

To Fred Friedman: As I read the decisions, defendants in fraud cases can be tried, and defendants found guilty, with the amount of the loss unspecified. After conviction, the process will work much like it did before Booker. There will be a PSI, in which a purportedly neutral probation officer will decide the size of the loss, and the sentencing guideline range based on that loss. The only difference is that the guideline range is now strictly advisory. The judge can depart upward or downward for any reasons he wants, as long as those reasons are "reasonable." That is, of course, considerably more discretion than judges have had until now. We've all read opinions where judge says, "This is unjust, but unfortunately, under the guidelines, I have no choice." Now, they have a choice, and as long as their decision is *reasonable*, it should survive appellate review. Jamie Olis will probably be coming back to Judge Sim Lake's courtroom, and he will probably get a reduced sentence.

Posted by: Marc Shepherd | Jan 12, 2005 3:14:42 PM

Michael, I don't think so. My read is that the Court basically says:

Imagine how it would be if there were no guidelines. The sentencing court could issue any sentence within the statutory min/max for the proven sentence. Well, that's exactly how it's going to be now, but the court might keep in the back of its mind what the guidelines say.

So essentially, nothing has to be proven beyond a reasonable doubt except that which forms the basis of the statutory min/max. By making the guidelines advisory, the Court has removed all standards of proof for other factors considered by the sentencing court.

Posted by: Guest | Jan 12, 2005 3:18:19 PM

By the way, I meant to write, "...must be determined by the court beyond a reasonable doubt," not "proven by the court."

Posted by: Michael K. Bachrach | Jan 12, 2005 3:20:17 PM

Responding to Guest:
I'd phrase it differently. The court must keep in the front of its mind what the guidelines say, but can take other factors into account and pronounce a different sentence with a good reason. A sentence that is substantially different from the guideline range, without a good reason, will be found unreasonable and reversed.

Just a prediction. We'll see soon enough how DOJ and the courts interpret it.

(Anyone want to start a pool on which Circuit issues the first opinion?)

Posted by: A prosecutor | Jan 12, 2005 3:23:36 PM

It strikes me as odd that Breyer, Kennedy, Rehnquist, and O'Connor vote simultaneously that there is no constitutional violation in applying the Guidelines as always, and then determine the remedy for that violation in part II of the opinion.

Posted by: Kevin | Jan 12, 2005 3:23:37 PM


You might be right, but then why include the Stevens opinion as a holding for the majority as opposed to a partial dissent? Either way, I agree with Scalia's sentiment, this is not the opinion anyone was expecting.

Posted by: Michael K. Bachrach | Jan 12, 2005 3:25:42 PM

To Alex: true that a Judge could of ruled for a sentencing enhancement although none may of been in the PSR. However, Ready's original post indicated no objections to the PSR by the government or defendant. I find it hard to believe that a Judge would just apply an enhancement for the fun of it. Again, like so many cases, defendant's don't necessarly tell love one's the whole truth regarding their cases. I'm not saying this is the case here, just seems odd. I still believe however that the defendant's are not less guilty or anymore guilty based upon this ruling. The ruling will simply change how we get to an appropriate sentence.

Posted by: David | Jan 12, 2005 3:33:19 PM


I wish that were true but I keep harking back to the old days, when sentences weren't mandated but only determined as a matter of discretion. I can't imagine that system being invalid if disputed facts were not found beyond a reasonable doubt if a judge could ignore them if he or she wanted. Of course, that's not entirely possible because the judge has to be acting reasonably or the sentence has to be reasonable, whatever that means. If that chills decent sentences, then maybe the sixth amendment kicks in.

But, boy, if beyond a reasonable doubt is one of the favorable outcomes of today's ruling, that would be great.

Posted by: Alex E. | Jan 12, 2005 3:41:45 PM


You're right - front of the mind :) My slip reflected the sleight of hand I felt was being used there.

The thing I'm wrestling with most is the last paragraph of the second majority opinion and trying to decipher what is means for the application of this holding to the various procedural postures of cases.

Posted by: Guest | Jan 12, 2005 3:51:05 PM

What is a post-Booker "Sixth Amendment violation"?

Posted by: A defense attorney | Jan 12, 2005 4:00:41 PM

It's there - just past the looking glass.

Posted by: Bob Kolstad | Jan 12, 2005 4:15:51 PM

I think Booker represents at best a pyrrhic victory for fans of Apprendi and opponents of the rigidity of the Guidelines. Indeed, the remedy seems to swallow the rule. For example, rather than require proof of drug quantity beyond a reasonable doubt, the Government can prove enough to get into a broad category of statutory maximum/minimum. Once there, the court may sentence anywhere within the Guidelines and not have to comply with the Sixth Amendment. So Booker on remand could get the statutory maximum under the pretense that his Sixth Amendment rights have been protected. The judge need not even see a PSR or have a preponderance hearing or make specific findings. Absent legislative reform soon, or a mass of messy appeals, criminal defendants could be assaulted by the harshness of the Guidelines as never before. Anyone have a response?

Posted by: Jason Marks | Jan 12, 2005 4:26:36 PM

On a somewhat different topic - mandatory minimum sentences, I found something very interesting in the Booker opinion. In discussing the pitfalls he foresees were Justice Steven’s approach adopted, Justice Breyer states:

“...Prosecutors would thus exercise a power the Sentencing Act vested in judges: the power to decide, based on relevant information about the offense and the offender, which defendants merit heavier punishment.
...A system that would require the jury, not the judge, to make the additional “566 grams” [a reference to the enhancement in Booker] finding is a system in which the prosecutor, not the judge would control the sentence. That is because it is the prosecutor who would have to decide what drug amount to charge. He could choose 658.5 grams, or 92.5, or less. It is the prosecutor who, through such a charging decision, would control the sentencing range. And it is different prosecutors who, in different cases - say, in two cases involving 566 grams - would potentially insist on different punishments for similar defendants who engaged in similar criminal conduct involving similar amounts of unlawful drugs - say, by charging one of them with the full 566 grams, and the other with 10. As long as different prosecutors react differently, a system with a patched-on jury factfinding requirement would mean different sentences for otherwise similar conduct, whether in the context of trials or that of plea bargaining.” Opinion delivered by Justice Breyer, at 14.

The above example applies with just as much force to what is already occurring with respect to cases where there are outrageous sentencing discrepancies based on whether or not the prosecutor chooses to charge a particular offense for which there is a mandatory minimum. For instance, in a case I’m currently involved with, the defendant was alleged to have thrown a Molotov cocktail through the window of an apartment building, causing a fire which severely damaged the building and slightly injured two firefighters. He was tried and convicted of arson under 844(i) and possession of an explosive device under 924(c). The mandatory minimum for the arson is seven years, which seems plenty harsh enough. The mandatory minimum under 924(c) is thirty years and must be consecutive! So he has to do 37 years unless we can find some way to prevent it. But, in another case, the prosecutor could have chosen to simply not charge the 924(c) violation, taking 30 years off the sentence. I’m hoping to use the above language to show a violation of separation of powers, or something...

Posted by: Kathy Manley | Jan 12, 2005 4:34:12 PM

As Professor Kerr put it, maybe this is a "slow revolution." But not one just in sentencing, but rather one in the very nature of the criminal justice system. Professor Berman once suggested that at the heart of the Blakely debate were two different views of our system: one, an adversarial system, supported by Justice Scalia and the other Justices who sought to give more content to the Sixth Amendment right to jury trial by requiring jury findings on so-called sentencing factors; and two, and administrative system, defended by Justice Breyer in his Blakely dissent. Although I was initially disappointed in Justice Ginsburg's "switch" on the remedial question in Booker, maybe she's onto something. Maybe this approach will bring some "adversariness" back into the system. After all, if we inject some uncertainty back into the system, we may remove some of the power currently vested in the hands of prosecutors and curtail at least in part "plea bargaining's triumph." Defendants may opt for trials more often, particularly because they will no longer have to rely on acceptance points as the sole means of decreasing their potential Guidelines exposure. And plea negotiations may become more meaningful, or at least more truthful, in the absence of fixed sentences. Both sides will now have to weigh not only the strengths and weaknesses of the evidence and the applicability of various (advisory) Guidelines, but also the fairness of any resulting sentence (as well as the particular disposition of their district court judge). Had Justice Ginsburg voted with the Stevens' four on the question of remedy and required the jury to make factual findings relevant to all Guidelines enhancements, Congress' reaction would likely have been swift and severe: more mandatory minimums and more prosecutorial power. But now with some breathing room, with the likely practical result that the Guidelines will continue to be applied in the majority of cases, perhaps Congress will hold back, take its time, and see how things play out. In the meantime, maybe we can see more of an adversarial system in action.

Posted by: Former Fed | Jan 12, 2005 5:02:08 PM

My loved one didn't have to tell me anything, I've reviewed his file and read his transcripts. Of 87 months, he got 46 for relevant conduct (yes I've verified that too).

It's a waste of taxpayers' money and a travesty of justice to have ever allowed "relevant conduct." Anyone who can read and has any common sense at all should realize that you shouldn't do time for something of which you haven't been convicted or to which you have not pled guilty. I realize prior convictions have an impact and I have no problem with that, but that's as far as it should go.

The SG's have always been wrong and I applaud those who finally took a stand and corrected the wrong.

Posted by: Shelly | Jan 12, 2005 5:33:49 PM

Former Fed:
True, only if you think that more trials ON BASE OFFENSES are a good idea. The fact is, the VAST majority of defendants in the fed system did what they're charged with (as a base offense). But the real questions these days are: did they actually USE that gun in the corner of the room? Did they KNOW (or should have known) about the 12.5 kilos of coke that their boss's boss's boss was planning to sell? More trials may result, but, sadly, it's pretty hard to go to trial when you're charged with selling coke and an undercover agent did a buy with you and wore a wire. You'll be convicted for the basic offense, and have exposure to the full range of punishment (especially since you "wasted" the court's time with a trial and will get a "penalty" for doing so).

Posted by: District Clerk Battling Blakely | Jan 12, 2005 6:07:49 PM

Fed: I also disagree with your projected response from Congress. Had the Guidelines remained mandatory, but additional sentencing procedures been required (the JPS solution) members of Congress could say "well, a few more hoops, but still we get uniformity and our harsh sentences. those granola-crunching judges can't get out of the guidelines." Some legislators might have even applauded the decision, saying that it would reinforce the truth not only of convictions but of sentences too. But now, both sides lose. Congress, fearful of judges with discretion, figures out how to tighten the leash even more; there's likely less truth-in-sentencing (and more fact bargaining or Rule 11(c) pleas!)and more disparity, despite what the remedy majority might say.

Posted by: District Clerk Battling Blakely | Jan 12, 2005 6:11:33 PM

Former Fed:

It's reassuring to hear someone else out there echo my own view that Justice Ginsburg took a pragmatic step (perhaps misguided, only time will tell) to try to keep Congress out of the mix. As the day has gone on, however, I've begun to question my own early optimistic comments (similar to yours) because I'm becoming afraid that the concept of "reasonableness" is too vague to insulate responsible sentences from appellate reversal. Specifically, I'm afraid appellate courts will find most sentences below recommended guidelines ranges presumptively or actually "unreasonable."

As an example, if a district court were dumb enough to explain a sentence below the recommended range by saying the sentences for crack cocaine are just too high or unreasonably disparate from those for cocaine powder, would it be reversed on a government appeal because that's not a "reasonable" explanation for the "departure"? Would the appellate court find the district court's findings on these issues invalid because they conflict with the Guidelines Commission's legislative/policy judgments in this area?

If so, would any such departure from the recommended range become more reasonable if the court also stressed compelling factors such as the defendant's youth or advanced age, educational background, superior vocational skills, significant mental and emotional conditions, unique physical appearance, history of drug dependence, positive employment history, strong family ties and responsibilities, relevant socio-economic status, history of service in the military, civic or charitable, public-service work, employment-related contributions, record of prior good works and lack of guidance as a youth?

While all of that might look like a strong basis for upholding a sentence below the recommended range, fans of the guidelines will recognize all of these factors--ones upon which judges traditionally relied when they had discretion--are deemed "not ordinarily relevant" under the guidelines. See section 5H1.1 - 5H1.12 ("Specific Offender Characteristics"). What has become of that Guidelines Commission determination? Will extensive and objectively reasonable reliance on one or a combination of several of these factors now insulate a lenient sentence from reversal on appeal or compel reversal because it is based on factors disfavored or prohibited by the Commission, albeit permitted under section 3553? Which authority will prevail in the tension between section 3553 and the guidelines? I fear it will be the Guidelines, cloaked as they are with legislative analysis.

In short, will district judges be reversed if they "disagree" with Commission determinations on central policy grounds? I can't see the Supreme Court of the Courts of Appeals blessing that practice because of the fiction (operative, once again now that the Feeny amendment is out) that the guidelines are judge-made rules. What's to prevent us from, once again, having de facto mandatory guideline sentences? Moreover, won't we end up retracing the steps leading up to Koon and end up identifying permissible bases upon which to deviate from the "discretionary" guidelines? If we do, what's to stop the Guidelines Commission from identifying Koon-type departure factors as "not ordinarily relevant" in future amendments to take them out of the mix?

Simply put, I'm wondering if we will end up with the same old process in a new guise. Ever the optimist, I'm hoping judges show their independence from the Guidelines Commission by considering even disfavored factors and circuits acting with similar courage by deferring to distict court findings as long as the process (not just the result vis-a-vis the guideline range) appears reasonable.

If they don't though, I wonder if Booker/Fanfan will eventually be viewed as Mistretta II--an endorsement of the constitutionality of centralized, strict, across-the-board, judge-made, sentencing rules, simply because they are theoretically discretionary.

I'm going to remain optimistic, because I have no other choice. Perhaps if push comes to shove and the Courts of Appeals reject too many sentences using this type of analysis, the Supreme Court will view it as coming too close to a mandatory system and revisit this issue. I won't be holding my breath, though.

Posted by: Alex E. | Jan 12, 2005 6:58:36 PM

If a case is remanded for resentencing, wouldn't it have to be resentenced under the THEN relevant guidelines that Sevens said are now restricted by Apprendi and not under the new "reasonable" plumbline? I thought it was unConstitutional to have ipso facto law after the fact. The defendants did not expect to be sentenced under the "reasonable standard" at the time the trial took place.

Attorneys out there - what do you think?

Posted by: Anne | Jan 12, 2005 7:23:40 PM


Tough to tell from your post what actually happened on appeal in the case you're discussing. Assuming it was remanded for some other reason that Blakely ones, I believe the sentencing judge must now use the only constitutional system available--the new, post Booker/Fanfan one. You raise interesting questions that could be litigated (can the judge impose a higher sentence than the one required under the remand, under ex post facto analysis, must the court use the guidelines and accompanying sentencing scheme in force at the time of the original sentencing?).

My horse sense is, however, that you'd have a tough time persuading the district court or the appellate judges in an appeal, that the defendant was prejudiced by the district court's failure to follow a practice now held unconstitutional. With a few exceptions, the fiction is that a sentence vacated on appeal becomes a nullity. Perhaps your remand was for only a limited purpose and the entire sentence wasn't vacated. Those facts might make a difference.

Posted by: Alex E. | Jan 12, 2005 8:26:35 PM

The reasoning in Booker is easy to follow. A criminal statute which requires the trial court to violate the defendant's constitutional right to, say, a jury trial, violates the, say, Sixth Amendment, where as a statute which merely permits the court to violate a defendant's constitutional rights does not implicate the constitution.

Since the FSG mandated the trial court to increase the defendant's sentence beyond the statutory maximum based on facts established in violation of the right to a jury trial, the FSG, as enacted, is invalid. The remedy is to amend the statute to remove the offensive mandate and replace it with disretionary authority.

An appeals court faced with a claim the defendant's constitutional rights were violated must first determine whether any statute required the court to commit the violation. If so, the appellate court should amend the statute to replace the mandatory language with permissive language. Then, the appellate court should either determine if the trial court in the case before it was unreasonable in violating the defendant's rights, or, alternatively, remand the case to the trial court to exercise its discretion to decide whether to violate the defendant's rights.

Posted by: Williams | Jan 13, 2005 1:47:41 PM

Any thoughts on the nature of plain error analysis given the resolution in Booker? In particular, how should the fourth plain error prong be assessed? It seems that the plain error analysis here will differ from that in the wake of Apprendi (no plain error where evidence was "overwhelming and essentially uncontroverted") - since fact resolution by the jury is not the Court's chosen solution. Also, any thoughts as to whether appellate courts will latch onto a notion that if the district court sentenced defendant in the middle of the Guideline range, there is no plain error on the theory that the sentence was not affected by the mandatory/advisory status of the Guidelines (whereas the sentence might have been so affected if the district court went for a "corner solution" at the limits of the range)? I am a civil appellate attorney.

Posted by: Rich D | Jan 13, 2005 4:11:40 PM

Is it possible that the applicable Guideline range to be considered is the unenhanced, Apprendi-compliant range, rather than the one with the judicially decided enhancements? Could the decisions be taken to mean that the Guidelines could be used in determining whether to apply the upper or lower end of that range? (defense attorney)

Posted by: deborah b | Jan 14, 2005 3:22:42 PM

I am a probation officer for Milwaukee County, Wisconsin. My question is; Are the sentencing enhancements factored in at the federal level now unconstitutional? Does this apply to past cases as well as cases that are now going on in the system?

If the enhancements are deemed unconstitutional does it require a trip to the court to have them removed?
Can the terms of confinement in a federal institution then change in regards to an incarcerated person?

Thanks for your time

Posted by: Bob Zima | Jan 19, 2005 4:00:56 PM

I am wondering if my husband has a chance in appealing his case. We are confused with enhancement and adjustment. They have him as a ring leader. (showing as an adjustment) Also, is there any cases that have dropped charges where there is empty bags of no drugs but yet the probation officer guesses that there was a certain amount.

Posted by: DIANA PASTRANO | Feb 14, 2005 9:40:20 PM

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