Sentencing Law and Policy

Seeking restitution on restitution

Because restitution orders are becoming more common in state and federal courts, many have wondered whether and how Blakely might impact such orders. As noted here, the Tenth Circuit previously spoke quickly (perhaps too quickly) to this issue in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004).

Yesterday the Ninth Circuit in US v. DeGeorge, 2004 WL 1920922 (9th Cir. Aug. 30, 2004), contributed a view on the restitution issue in a case applying an older federal law on victim restitution. Here's what the court said:

We first review the restitution order made by the district court pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. §§ 3663-3664, which is unaffected by Blakely. See, e.g., United States v. Baker, 25 F.3d 1452, 1456 (9th Cir. 1994) ("[R]estitution determinations under the VWPA are quite different from sentencing determinations under the Sentencing Guidelines.").

Because I believe that the VWPA, passed by Congress in 1982, made an award of restitution wholly discretionary, the Ninth Circuit may be right that Blakely does not affect its application. However, in 1996, Congress passed the Mandatory Victims Restitution Act (MVRA), which now makes restitution mandatory for particular crimes, and thus the Blakely analysis might be different under that statute. See generally US v. Alalade, 204 F.3d 536, 538-41 (4th Cir. 2000) (discussing changes in sentencing court's discretion after passage of MVRA). And, of course, state restitution provisions will need to be distinctly examined to see if and how their structure and terms could be impacted by Blakely.

In the end, as will be the case with so many post-Blakely issues, a lot of litigation may be needed to sort this all out.

More guidance from the 9th Circuit

We know that, pending decisions in Booker and Fanfan, at least four circuit courts are trying to proceed with business as usual in applying the federal sentencing guidelines. But, of course, in the Seventh and Ninth Circuits binding precedents require coping with a new (and uncertain) post-Blakely sentencing reality. Today in US v. Castro, No. 03-50444 (9th Cir. Aug. 27, 2004), the Ninth Circuit issued a per curiam opinion which helps sort out more of the post-Blakely litigation uncertainty. Here's the heart of what the court says:

In US v. Ameline, 376 F.3d 967 (9th Cir. 2004), we held that Blakely v. Washington, 124 S. Ct. 2531 (2004), applied to the US Sentencing Guidelines and, thus, the imposition of an enhanced sentence on the basis of judge-found facts violates the Sixth Amendment....

As we recognized in Ameline, “the Blakely court worked a sea change in the body of sentencing law.” 376 F.3d at 973. Whatever the outcome of the Supreme Court proceedings in Booker and Fanfan, those decisions will likely have a profound impact upon our disposition of sentencing issues in direct criminal appeals and will certainly affect the continued vitality of Ameline. Accordingly, in a case in which the defendant appeals both his conviction and his sentence, if we decide to affirm the conviction and if the sentence imposed implicates Blakely or Ameline, we would ordinarily withhold our decision until the Court decides Booker and Fanfan.... Similarly, if we have already issued our decision in such a case, but have not yet issued the mandate, we would ordinarily stay further proceedings....

Here, however, circumstances prompt us to act on the sentencing issues at this point, instead of staying proceedings pending the Court's decisions in Booker and Fanfan. Had Castro’s sentence been based only on the facts that were found by the jury and not on those found by the district judge, he would already have completed serving his sentence. Where the portion of the sentence that is clearly unaffected by Blakely and Ameline has expired or will expire shortly, we deem it appropriate to remand the case to the district court for whatever action it determines to be proper under the circumstances. Among the options available to the district court, within the exercise of its discretion, would be to reconsider its sentence or to stay further proceedings pending the outcome of Booker and Fanfan, with or without granting bail to the defendant. FN3

FN 3: In Ameline, we held that we are not precluded from addressing Blakely issues even when a defendant raises them for the first time after the case is submitted. 376 F.3d at 972-74. Although we have the authority to identify and consider such sentencing issues sua sponte, it would be appropriate for parties with pending cases to inform this court by letter at any time, jointly or severally, when a potential Blakely or Ameline issue exists, or when particular circumstances warrant action on our part prior to the Supreme Court’s decisions. We note with approval that Castro filed a letter advising this court that his re-sentencing was affected by Blakely. Absent particular circumstances warranting earlier action, a motion to file a supplemental brief or a supplemental petition raising Blakely or Ameline issues will ordinarily be denied without prejudice to renew following the Supreme Court’s decisions. A petition for panel rehearing or for rehearing en banc raising Blakely or Ameline issues will also likely be held in abeyance in most cases. If further proceedings have been stayed, no such petition need be filed until the stay expires or is terminated. If no stay has been issued, either party may request that one be entered.

Distinguishing the federal system structurally?

In Koch, Judge Sutton's defense of the federal guidelines for the Sixth Circuit en banc majority (details here) goes to great length to highlight distinctions between the Washington guideline system at issue in Blakely and the federal guideline system. Particularly noteworthy is Judge Sutton's extended efforts to spotlight (and give legal significance to) structural differences in who created these guideline systems, and his emphasis on the US Sentencing Commission's placement in the Judicial Branch.

I find this portion of Koch fascinating because, in my own writings, I have stressed the significance and role of different sentencing lawmaking institutions, see A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stan. L. & Pol'y Rev. 93 (1999), and I have also urged sentencing commissions to take a proactive and leading role in developing sentencing procedures. See Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 37 Crim. L. Bull. 627 (2001). But, Judge Sutton's structural defense of the federal system in Koch includes one particular passage that could alone justify a dozen more law review articles. He says:

While it may be true that agencies are no less capable of violating the Sixth Amendment than legislatures, the Guidelines come from the very branch of government that all nine Justices of the Court agree has long exercised considerable discretion over sentencing determinations based on the same kinds of factual determinations that the Guidelines ask federal courts to make. If federal judges, in other words, may consider facts that increase sentences in an indeterminate sentencing regime, is it not permissible for this branch of government collectively to channel the consequences of these facts based on their group experience?

This passage is so interesting because it raises a host of fascinating theoretical and factual issues. Fundamentally, of course, we start with curious questions of how and why the scope and reach of an individual's Sixth Amendment and Due Process rights would turn on the way in which criminal sentencing laws are written and enacted. Then we have to consider whether it has ever been accurate to describe the USSC's work as an effort by the judiciary to "collectively channel ... their group experience" in sentencing.

If the federal sentencing guidelines were written by the Judicial Conference of the US — as Professor Kate Stith and Judge Jose Cabranes have recommended in their wonderful book Fear of Judging (at p. 159) — I would find Judge Sutton's question above deserving of extended attention. But, as evidenced by judicial griping since the federal guidelines became law, I doubt many federal judges would say the USSC has in fact developed sentencing laws that channel their collective experiences.

Moreover, as Steve Chanenson has so astutely noted in his recent article (described here and revised version here), Congress' recent passage of the PROTECT Act has constrained and transformed the USSC to make it more like a "traditional" agency and less like a group of judges making sentencing rules for themselves. Recall that the PROTECT Act changed the requirement that the seven-member USSC have at least 3 judges to now provide that the USSC cannot have more than 3 judges. Some have suggested that this change alone entails that Mistretta, which Judge Sutton emphasizes in Koch, is no longer good law.

In short, whatever we think theoretically of the distinction Judge Sutton spotlights, it is not a distinction that comfortably describes the modern reality of the federal sentencing system. And, of course, Judge Martin's dissent in Koch accuses the majority of emphasizing "a distinction without a difference":

I presume that the majority would agree that were the challenged provisions of the Guidelines enacted by Congress in the first instance, they would be unconstitutional under the rule announced in Blakely. I fail to see how the fact that Congress delegated its authority to the Sentencing Commission to set presumptive sentencing ranges saves the federal scheme from constitutional attack.

Interesting facets of the Koch dissent

Of course, the big news from the Sixth Circuit's Koch decision (details here) is Judge Jeffrey Sutton's majority opinion, which makes a spirited defense of the federal guidelines in the face of Blakely (and makes no defense of the Sixth Circuit's curious order in Koch recommending the announcement of alternative sentences). But the dissent, authored by Judge Boyce Martin and joined by Judges Daughtrey, Moore, Cole, and Clay, has a number of interesting and noteworthy facets. Here are just a few of many possible observations on this front:

1. Politics as usual? Unlike the unusual coalitions of Justices in Blakely, the decision in Koch nearly reflects the judicial equivalent of a "party-line vote." If my calculations are correct, all five judges joining the Koch dissent were appointed by Democratic Presidents, while seven of eight judges in the Koch majority were appointed by Republican Presidents(Judge Gilson is the exception).

2. Surprising civility? For a court which has made headlines for its infighting (details here and here), the tone and the language of the dissent is more civil than I might have expected.

3. Can a dissent have dicta? Interestingly, the last three pages of the dissent address whether a Blakely claim can qualify as plain error. Though it is said that history is written by the winners, apparently the Koch dissenters hope that plain error doctrine can be written by the losers.

4. Better not to decide? Amusingly, before reaching out to address plain error, the dissent makes a spirited argument that "the most appropriate course of action would be to withhold our decision until the Supreme Court has spoken." Indeed, the harshest words in the dissent are at the outset when Judge Martin asserts that the "majority’s opinion in this case amounts to nothing more than an exercise in futility and a waste of time and resources, in light of the Supreme Court’s grant of certiorari" in Booker and Fanfan.

5. The duties of lower court judges? Though necessarily a secondary issue to the merits, so much of the post-Blakely, pre-Booker/Fanfan jurisprudence wonderfully spotlights the challenges for lower court judges. As noted before, Judge Sutton invokes Learned Hand for the proposition that circuit courts ought not anticipate the overruling of Supreme Court precedents. But Judge Martin responds by asserting that, in Koch, "the majority ignores our very duties as United States Circuit Judges:"

Having insisted upon declaring its view regarding the applicability of Blakely to the Guidelines, rather than – as I would do – awaiting the Supreme Court's impending resolution of the issue, the majority is obligated, as we all are, to interpret and apply Supreme Court precedent to the facts of this case, regardless of whether its analysis leads to a result that it does not like.

The 6th Circuit Speaks!!

Making me proud of my home circuit, at least for its timing if not the specifics its opinion, the Sixth Circuit has today beaten the Fourth Circuit to the punch and has released its opinion in US v. Koch, which can be accessed here.

Here's the line up of the judges: Sutton, J., delivered the opinion of the court, in which Boggs, C. J., Guy, Batchelder, Gilman, Gibbons, Rogers, and Cook, JJ., joined. Martin, J. delivered a separate dissenting opinion, in which Daughtrey, Moore, Cole, and Clay, JJ., joined.

Analysis about this major development to come soon.

UPDATE: I am just getting started on the opinion, but it seems that the underlying case involves intricate facts in which the defendant was sentenced for a killing that was never charged nor considered by the jury. Also, I am already proud that (OSU alum) Judge Jeffrey Sutton starts his substantive analysis with a quote from Judge Learned Hand. It looks like this opinion was worth the wait.

Here are just a few of the many choice quotes from the majority opinion:

in each of the post-Mistretta cases, the Court addressed a question not dissimilar to the one presented here: May federal judges find facts under the preponderance standard that increase a sentence beyond the facts found by the jury under the beyond-a-reasonable-doubt standard? Because the Court said “yes” in each case, this line of authority by itself suggests that a lower court should be skeptical about concluding that Blakely’s invalidation of a state-sentencing scheme suddenly dooms the Federal Sentencing Guidelines....

While sentencing statutes and the Guidelines both have the force of law and both bind courts, the Guidelines are agency-promulgated rules enacted by the Sentencing Commission — a non-elected body that finds its home within the Judicial Branch, the very branch of government in which sentencing discretion has traditionally been vested.... This precise distinction, notably, was central to Mistretta’s decision to uphold the Guidelines in the first instance.

Whether this distinction will carry the day in Booker and Fanfan remains to be seen, but it at least undermines the view that Blakely compels us to invalidate the Sentencing Guidelines....

All of which brings us back to our central concern. It may be that the trajectory of Apprendi, Ring and Blakely will end with a nullification of the Guidelines. But, in the face of these relevant precedents, it is not for us to make that prediction or to act upon it. Not only would such a ruling be of some consequence to the Guidelines, but it also would be in tension with whole bodies of law that the lower courts long have been obliged to follow.

Partial Analysis of Majority Opinion: Indeed making me proud to be a Buckeye, Jeff Sutton has penned a wonderfully written defense of the federal sentencing system in the face of Blakely; in my view, this is the best defense of the federal system "on the merits" to date (with apologies, of course, to Judge Easterbrook). We will find out before too long whether Judge Sutton's former boss, Justice Scalia, may find this defense convincing.

Though I will have more commentary on the substance of the majority's opinion later today in a separate post (as well as a separate post about the dissent), I have to comment now about the curious absence of a single mention, let alone any defense, of the Sixth Circuit's prior recommendation that its district courts issue alternative sentences (background here).

Has the curious alternative sentencing recommendation been (officially or unofficially) withdrawn? Upon reflection, did the Sixth Circuit agree with Judge Goodwin that alternative sentencing is inappropriate (details here)? Inquiring minds want to know. And, as my colleague Marc Spindelman suitably added, criminal defendants in the Sixth Circuit deserve to know.

The First Circuit chats about ineffective assistance

In the course of figuring out how Blakely might apply to pending and past cases, I have been speculating with others about whether the failure to make or preserve a "Blakely claim" before the time Blakely was decided could be deemed ineffective assistance of counsel. More generally, it seems clear that in addition to all the "on the merits" short-term and long-term Blakely issues, courts will eventually have to sort out a series of short-term and long-term Blakely-related ineffective assistance claims.

In the first decision I have seen starting to speak to these sorts of issues, today in the unpublished case of Campbell v. US, 02-2387 (1st Cir. Aug. 25, 2004), the First Circuit holds in a federal habeas corpus setting that "Campbell is not entitled to a [certificate of appealability] to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely." The First Circuit reasons, in a decision that can be downloaded below, that Campbell's "case does not require us to decide whether Blakely applies to the federal sentencing guidelines or whether it applies retroactively to cases on collateral review." The court continues:

Because Campbell stipulated at trial to a drug quantity that corresponded to the base offense level used to calculate his sentence, he cannot show that he was prejudiced by the failure to charge the specific drug quantity in his indictment. Moreover, counsel's failure to anticipate Blakely would not constitute unreasonable performance under Strickland because 'First Circuit jurisprudence on this point ha[d] been well established.' Campbell, 268 F.3d at 7, n.7. Therefore, reasonable jurists could not find that he has made a substantial showing that the Blakely issue would have been clearly stronger than the issues raised by appellate counsel.

At the end of this passage, the court adds this informative footnote:

To the extent that petitioner is seeking to assert a new claim based on Blakely (rather than to provide supplemental support for his ineffective assistance claim), he would be required to present that claim first in the district court. Certification to file a second or successive petition could not be granted unless the Supreme Court had held that Blakely applied retroactively to cases on collateral review. 28 U.S.C. § 2255.

Though this per curiam decision is unpublished and thus formally non-precedential, it obviously speaks to some very important issues in a very important way.
Download campbell_v. US.pdf

The Third Circuit chats about Blakely

In the world of sentencing, you can run, but you cannot hide from Blakely. Well, actually, the en banc courts in the Fourth and Sixth Circuits have been able to run and hide from a written opinion for some time, but I am sure a full account of their orders in Hammoud and Koch are coming real soon.

A full two months after Blakely was handed down, a handful of federal circuit courts — the 1st, 3rd, 10th and DC Circuits, by my count — have still managed to avoid any significant Blakely rulings to date. (The Federal Circuit, to my knowledge, does not have jurisdiction over any criminal cases, though I wonder if anyone out there is working on Blakely-related patent applications.)

The Third Circuit, however, is trying to get on with the business of deciding sentencing cases and has thus had to chat a bit on the record about Blakely. Specifically, in US v. Dickerson, 2004 WL 1879764 (3d Cir. Aug. 23, 2004), a case which is interesting in part for its discussion of guidelines departures, the Third Circuit dropped this noteworthy footnote:

We will address the Government's arguments regarding Dickerson's downward departure notwithstanding the fact that they involves sentencing issues that are completely based on the Federal Sentencing Guidelines, which have recently come under attack in the wake of the Supreme Court's decision in Blakely. We do so because the question here involves the application of a downward departure, rather than an upward departure or a sentencing enhancement. Thus, unless the entire Guidelines regime falls, the decision in Blakely is not clearly implicated here. Further, in response to questioning by the Court at oral argument, the parties conceded that no Blakely-related problems are likely to arise on the facts of this case.

Meanwhile, another decision from the Third Circuit this week, US v. Pepsny, 2004 WL 1873996 (3d Cir. Aug 23, 2004), includes this somewhat cryptic paragraph on Blakely:

In a notice to us subsequent to oral argument, [the defendant] DiFeo, citing Blakely challenges the nine-level increase to her base offense level for having caused losses in excess of $400,000. On appeal, however, DiFeo did not contest the computation of the dollar sums included in the amount of loss calculation (i.e., she did not dispute the propriety of the judge's fact-finding). Rather, she simply argued that these losses should not have been included in the calculation (i.e., she took issue with the application of the Sentencing Guidelines). Thus, while we have rejected DiFeo's attack on the District Court's Guidelines application, we have not said anything regarding the underlying factual determinations. Since we remand for resentencing, DiFeo can attempt to raise the Blakely issue in the District Court.

Finally, in the unpublished US v. Coplin, 2004 WL 1790169 (3d Cir. Aug. 09, 2004), the Third Circuit briefly discussed Blakely in the context of an Anders brief. Based on the defendant's various factual admissions, the court in Coplin explained that "without delving into the many complex questions raised by Blakely, we conclude that under any interpretation of Blakely, Coplin has no nonfrivolous ground for appeal." And at the tail end of a discussion of Apprendi and Almendarez-Torres, the Third Circuit added this entertaining tidbit:

We are absolutely bound by those decisions, for it is the "[Supreme] Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Even if we believe that the foundation of a prior Supreme Court decision is thoroughly undermined, it is up to the Supreme Court to complete the demolition of its own decision.

Noteworthy Circuit Snippets

Though we have not had a major ruling from the federal circuit courts in some time, we continue to get regular snippets from those circuit courts which have already weighed in on Blakely. And though these snippets often appear in so-called unpublished opinions, they are still frequently consequential and interesting.

For example, in cases like US v. Bowden, 2004 U.S. App. LEXIS 17937 (6th Cir. Aug. 24, 2004), and US v. Musleh, 2004 U.S. App. LEXIS 17742 (4th Cir. Aug. 20, 2004); US v. Shipman, 2004 U.S. App. LEXIS 17743 (4th Cir. Aug. 20, 2004), we see the Sixth and Fourth Circuits quickly disposing of Blakely claims in footnotes based on their Koch and Hammoud rulings. Obviously, the fact that these circuits still have not yet explained their en banc Koch and Hammoud orders in written opinions has not slowed their efforts in other sentencing cases.

In recent unpublished decisions from the Ninth Circuit, we see the court continuing its efforts (first noted here) to keep its Ameline decision from disrupting too many sentences. For example, US v. Chetty, 2004 U.S. App. LEXIS 17935 (9th Cir. Aug. 23, 2004), involved an interesting application of plain error. The Chetty court, citing Ameline, explained "it is plain error under the Sixth Amendment to increase punishment beyond the maximum standard range based on facts not admitted by the defendant or found by a jury beyond a reasonable doubt, unless the right to jury trial is waived." Yet Chetty's sentence is not reversed because, though "Chetty's eight-level enhancement for loss found by the district judge by a preponderance of the evidence was plain error," to warrant reversal "the error must have been prejudicial and have affected the fairness of the proceedings." Because Chetty was only disputing part of the loss attributed to him, the sentences he received was still "within the range of the offense level Chetty sought." Thus, through "the district judge's enhancement based on his finding of loss amount was plain error, it was not prejudicial and does not warrant remand for resentencing."

And, in a brief decision in US v. Green, 2004 U.S. App. LEXIS 17911 (9th Cir. Aug. 20, 2004), we get a different variation on important waiver questions. In Green, the Ninth Circuit relies on an appeal waiver to avoid dealing with Blakely: "Defendant waived the right to appeal her sentence, and we therefore dismiss her appeal. Because defendant's waiver also precludes us from considering her argument based on Blakely, we deny her motion for supplemental briefing."

From the Eighth Circuit we get US v. Mohr, 2004 U.S. App. LEXIS 17861 (8th Cir. Aug. 23, 2004), where the defendant was sentenced as a career offender and contested the characterization of one of his predicate prior felonies, commercial burglary, as a crime of violence. In another stretch of the "prior conviction" exception, Judge Murphy in a footnote comes to the debatable conclusion that "Mohr's case is unaffected by Blakely because ... the only enhancement to Mohr's sentence was because of his prior convictions." Interestingly, Judges Heaney and Bright each have separate concurrences in Mohr to discuss the characterization of the defendant's prior conviction, but neither mentions the possible Blakely issue.

It really is the end of the world, when...

this blog gets cited as "official authority." Yes, you read that crazy bit of news right. I just received (and make available below) a copy of an order entered today in US v. Onunwor, NO. 1:04-CR-211 (N.D. Ohio Aug. 19, 2004), by US District Judge James Gwin of the Northern District of Ohio. Here's the heart of the sentencing discussion:

With regard to the sentencing factors, the Court notes that the Sixth Circuit has recently determined that the Federal Sentencing Guidelines remain constitutional despite Blakely. See United States v. Koch, No. 02-6278 (6th Cir. Aug. 13, 2004). Because the Court cannot locate an official opinion published on this case, it presumes accurate the following order, as quoted on the Sentencing Law and Policy weblog [the opinion then quotes the Koch order and cites my post here, including the title "I'm home . . . and grumpy about the Sixth Circuit"]

Because the Sixth Circuit has instructed United States District Courts to apply the Guidelines, but also to provide as an alternative the sentence that the Court would enter under a discretionary sentencing regime, the Court intends to do just that. Thus, the Court will not bifurcate the trial into a "guilt phase" and a "sentencing phase." Nor will the Government need to put on at trial any additional evidence regarding sentencing factors. The only way such additional evidence would be necessary is if the Supreme Court were to rule that the Guidelines are severable. Only then will the Government need to prove sentencing factors to a jury, beyond a reasonable doubt. Should the Supreme Court later determine that the Guidelines are non-severable --- FOOTNOTE 1: For the reasons articulately expressed by Judge Gertner in United States v. Mueffelman, No. 01-CR-10387-NG (D. Mass. July 26, 2004), the Court finds that this outcome is the most likely. --- once any Guideline runs afoul of Blakely, the entire Guideline system will fall. Should that occur, we will return to a regime of discretionary sentencing, which of course would not require the Government to prove sentencing factors to a jury, beyond a reasonable doubt.

Needless to say, this is an important decision for reasons other that this (slightly comical) citation, and for me is just another remarkable example fo the different forms of chaos Blakely has engendered.
Download onunwor_order.pdf

The 11th Circuit Speaks (again on plain error)!

In a decision seemingly dated August 15 but filed today (and citing a decision on August 16), the Eleventh Circuit in US v. Duncan, No. 03-15315 (11th Cir Aug. 18, 2004), decided as they had previously suggested in a footnote in US v. Curtis (background here), that the state of the law after Blakely is not "plain" and thus a Blakely problem does not constitute plain error. Here's some of the key language:

In the instant case, neither the Supreme Court nor this Circuit has resolved the issue of whether Blakely applies to the Federal Sentencing Guidelines, and as indicated above, the circuits that have addressed the issue are not all in agreement. Indeed, the majority of circuits that have addressed the issue reject Duncan's position that Blakely applies to the Guidelines. Thus, Duncan cannot satisfy the second prong of the plain error analysis.

This decision is noteworthy for many reasons, including that it moves the Eleventh Circuit, without an express holding, pretty close to joining the new majority position in the circuits that Blakely is inapplicable to the federal guidelines. In addition, the Duncan opinion takes some swipes at the Eighth Circuit's (now vacated) panel decision in Pirani finding a Blakely error to be plain:

We do not agree with the Pirani panel’s dismissal of the Fifth Circuit’s opinion [upholding the federal guidelines]. While we need express no opinion on whether we actually would reach the same conclusion as the Fifth Circuit if a Blakely challenge was properly before us, we believe that the Fifth Circuit’s view is rational–i.e. a reluctance to find that Blakely has undone years of Supreme Court precedent focusing on the maximum sentence as stated in the United States Code. We believe this is a rational view despite the fact that other circuits, although not the majority, have held that Blakely has in fact undone this established understanding.

Question 4 answered: Eighth Circuit takes Pirani en banc

At least one of my exciting Blakely questions for the week (listed here) has been partially answered. Specifically, my sources report that the Eighth Circuit has officially granted, upon the court's own motion, rehearing en banc in US v. Pirani (background here). As with the previous order by the court to rehear en banc the panel decision in Mooney, the Eighth Circuit has only indicated that en banc argument "will be held at a time and place to announced."

With both Mooney and Pirani now officially vacated, the status of federal sentencing in the Eighth Circuit returns to being undefined. For three full weeks (and four fun-loving weekends) since the July 23 decision in Mooney, binding precedent in the Eighth Circuit was that the federal guidelines were wholly unconstitutional. Now we are back to square one until a new en banc ruling "at a time and place to announced."

I'm home . . . and grumpy about the Sixth Circuit

Though I am very happy to be home and lucky to have dodged two hurricanes, I am very grumpy to find out that the Sixth Circuit in US v. Koch, No. 02-6278 (6th Cir. Aug. 13, 2004), yesterday "pulled a Hammoud" — i.e., they mimicked the work of the Fourth Circuit in US v. Hammoud (background here) by affirming en banc a guideline sentence while entering this order:

We hold, with a formal opinion and dissenting opinion to follow, that the decision of the U.S. Supreme Court in Blakely V. Washington, 124 S. Ct. 2531(2004), does not invalidate the appellant's sentence under the federal Sentencing Guidelines. Accordingly, the district courts within the Sixth Circuit are hereby instructed to continue sentencing defendants in accordance with the Guidelines, as they did prior to Blakely. In the interest of judicial economy, and pending a definitive ruling by the Supreme Court, we recommend that the district courts within this circuit also announce at the time of sentencing a sentence pursuant to 18 U.S.C.A. Sec.3553(a) (West 2000 & Supp.2004), treating the Guidelines as advisory only.

That my adopted home circuit has gone this route is troubling for a number of reasons: (1) we now have a fourth circuit essentially copping out by refusing to explore what Blakely could really mean for federal guideline sentencing (see concerns here); (2) the assertion that the announcement of an alternative sentence will serve the interest of judicial economy seems to defy reality, if not also the rule of law (see explanation here and here), and (3) the practice of issuing an important order without supporting opinions seems to foster confusion and uncertainty, and also is at least a partial abdication of a judicial commitment to provide a fully reasoned explanation for all decisions.

I guess I should not be too upset with the Sixth Circuit for following the Fourth Circuit's lead in Hammoud, since that decision nearly two weeks ago was so compellingly justified in the Fourth Circuit's written opinions. Oh, wait, my mistake — we still have not heard why or how the Fourth Circuit reached its conclusion in Hammoud; a full two weeks later an opinion has not been issued in Hammoud. Hmmm.... I guess the Fourth Circuit's complete silence is more persuasive to the Sixth Circuit than all the thoughtful district court opinions which have found that guidelines constitutionally problematic after Blakely (details here).

Finally, there is a great bit of irony in the Koch ruling: the Sixth Circuit is now recommending the announcement of an alternative sentence following the logic of the original Sixth Circuit panel decision in Montgomery (background here). The Sixth Circuit might have saved a lot of time and energy — and also, in my view, have been far more jurisprudentially honest — if it had simply left the Montgomery decision in place, and then simply "recommended" that district courts also announce a guideline sentence at the time of sentencing.

Has the Sixth Circuit ruled?

I received a report that the Sixth Circuit handed down a decision late yesterday in US v. Koch, the case taken en banc to consider Blakely issues. This link on the Sixth Circuit site reports this for yesterday's Sixth Circuit dispositions:

02-6278 USA v. Koch
ORDER filed - AFFIRM

But I cannot find anything else about the ruling. I am about to head into the car for at 10-hour ride home, but in the meantime I hope that readers might be able to fill in the missing details in this obviously noteworthy development.

The Empire Strikes Back

After another week of quirky work by the federal circuit courts, as of this writing there are now more circuits which are requiring its district courts to apply the federal guidelines as written (the Second, Fourth and Fifth), than circuits which are requiring modifications in light of Blakely's constitutional requirements for sentencing enhancement (the Seventh and Ninth). Of course, there were periods of time in which the federal guidelines were unconstitutional in the Sixth and Eighth Circuits, but en banc efforts of these courts have clouded the applicable rules in these jurisdictions.

This new circuit reality is stunning, in part because the vast majority of district court judges to issue written sentencing opinions since Blakely have concluded that they can no longer constitutionally apply the federal guidelines as written. It also is disconcerting because, as Ron noted in his discussion of the Second Circuit's Mincey ruling (details here), it would be very valuable for the Supreme Court and Congress and the Sentencing Commission to be able to draw on the insights and experiences that emerge when lower court judges seriously struggle with developing a constitutionally viable and sound sentencing system in the wake of Blakely.

I know my own understanding of both Blakely and post-Blakely sentencing realities has been critically informed and enhanced by district court rulings like Judge Goodwin's work in Johnson and Shamblin, and Judge Enslen's work in Hakley, and Judge Holmes' work in O'Daniel, and Judge Lynch's work in Emmenegger, and Judge Battaillon's work in Swan and Terrell, and Judge Singal's work in Zompa, and Judge Gertner's work in Meuffleman, and Judge Presnell's work in King, and Judge Rakoff's work in Marrero, and Judge McMahon's work in Einstman, and Judge Kaplan's work in Roberts, and Judge Weinstein's work in Khan, and Judge Stewart's work in Montgomery, and of course Judge Cassell's work in Croxford. And this long list of insightful and informative district court decisions necessarily leaves out all the other important and thoughtful work done by federal district judges (more details here and here and complete reports at this link).

Sadly, the list of thoughtful, insightful and informative post-Blakely circuit court rulings is much, much shorter.

Second thoughts about the Second Circuit

The circuit court for which I worked for two years, and which made me proud with its certification gambit in Penaranda (background here), has now disappointed me with its work today in US v. Mincey (details here). I can conceive of pragmatic reasons for why the Second Circuit might want to "adhere to the law of this Circuit" and have its courts "continue fully to apply the Guidelines." But in Mincey, the Second Circuit provides no jurisprudentially sound reasons for how after Blakely it can still "adhere to the law of this Circuit" and have its courts "continue fully to apply the Guidelines."

Perhaps the Second Circuit believes the distinction between administrative and statutory guidelines permits judicial enhancements based on a preponderance of the evidence in the federal system; but the court neither articulates nor defends this position in Mincey. Perhaps the Second Circuit believes that application of the old guidelines until the Supreme Court renders a decision on their constitutionality will be least disruptive and can still preserve defendants' rights during this period of uncertainty; but the court neither articulates nor defends this position in Mincey. In other words, Mincey is really just an order, not a decision -- akin to what the Fourth Circuit has done so far in Hammoud. But the Fourth Circuit at least has said a fuller explanation of its order will be forthcoming in full written opinions. It seems that all we will be getting from the Second Circuit is this per curiam opinion in Mincey. For a host of reasons, I wish the Second Circuit at least tried to do more.

I am also left to wonder if this means that all the thoughtful district judges in the Second Circuit who had thoughtfully concluded that the federal guidelines could not be fully applied after Blakely (details here and here and here and here and here and here and here and here and here) must now go back and apply the guidelines they believe are constitutionally problematic.

Second Thoughts in California's Fifth District

As discussed in this effective law.com article, California's Fifth Appellate District Court of Appeal yesterday substantially modified the standing order it entered last week (background here), which stated that the court would "no longer compensate appointed counsel for research or briefing directed to any issue presented by Blakely v. Washington." The Fifth District's modified order, which has somewhat mollified defense counsel concerned about safeguarding their client's rights and can be accessed here, states:

Pending opinions by the California Supreme Court in People v. Towne (review granted Jul. 14, 2004, S125677), and People v. Black (review granted Jul. 28, 2004, S126182), if appellate counsel wishes to raise any issue presented by Blakely v. Washington (2004), he or she may file a letter consistent in form with the attached “Supplemental Argument Pursuant to Standing Order No. 04-1,” thereby preserving the issues for further state and federal review. Counsel need not file an application for leave to file the supplemental statement....

The purpose of this order is to ensure that the subject issues will be raised and preserved for review in an efficient manner.

The Second Circuit's Backup Plan

Post from Ron:
Reader Alex Eisemann just brought to my attention a decision from the Second Circuit that appears to give up on the court's unusual move (background here) to certify Blakely questions to the Supreme Court. Here is a link to the opinion in United States v. Mincey, which is functionally a unanimous decision of the en banc court (known in local parlance as a "mini en banc").

The court more or less recognizes that its certification strategy is not holding water:

Although our Court, acting in banc, has certified to the Supreme Court questions concerning whether Blakely applies to the Guidelines, we now conclude that, pending the Supreme Court’s answers to these questions, either in response to our certification or in the decisions in Booker and Fanfan, or both, it is appropriate to give the district courts of this Circuit guidance as to whether and how to employ the Guidelines when sentencing defendants. We therefore proceed to decide the sentencing aspects of this case on their merits.

After a review of pre-Blakely precedent on jury factfinding in guideline sentences in the Second Circuit, the court refuses to revisit the question until the Supreme Court speaks:

The pending issue for us is whether we should now abandon the prevailing law of this Circuit because of arguments based on what the Blakely decision might portend for the future of Guidelines sentencing. We conclude that we should not. In the first place, the Supreme Court explicitly stated in Blakely that “[t]he Federal Guidelines are not before us, and we express no opinion on them.” Secondly, because of the Supreme Court’s grants of petitions for certiorari in Booker and Fanfan and the setting of an expedited schedule, we can expect to be advised soon in the event that the Supreme Court intends to apply Blakely to the Guidelines. Under these circumstances, we will adhere to the law of this Circuit.

We therefore reject appellants’ arguments that, in this Circuit, the Sixth Amendment now requires every enhancement factor that increases a Guidelines range to be pleaded and proved to a jury beyond a reasonable doubt. Unless and until the Supreme Court rules otherwise, the law in this Circuit remains as stated in Garcia, Thomas, and our other related case law. We conclude that the district court did not err in sentencing defendants in accordance with the Guidelines as previously interpreted by this Court.

In so holding, we expect that, until the Supreme Court rules otherwise, the courts of this Circuit will continue fully to apply the Guidelines.... The mandate in this case will be held pending the Supreme Court’s decision in Booker and Fanfan. Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part. Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its opinion that address the defendant’s sentence until after the Supreme Court’s decision in Booker and Fanfan. In that regard, the parties will have until 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker and Fanfan.

This new strategy, like the certification gambit, takes the Second Circuit out of the business of crafting a viable sentencing system in the months that must pass before the SCOTUS rules. What a shame. We need as much variety of experience as possible if and when Congress turns to the job of redesigning the federal sentencing system, and the judges in the Second Circuit could have contributed some terrific ideas here.

Blakely's impact on restitution and habeas

With so many possible Blakely cases and dockets already overburdened, it is perhaps not surprising to see courts giving a judicial stiff arm to many Blakely claims. (The Eleventh Circuit's recent work in Curtis and Levy denying defendants even the opportunity to raise Blakely in pending cases is an obvious example.) But the sloppy jurisprudence we are seeing as courts sack defendants' Blakely arguments is both discouraging and disconcerting.

For example, the Tenth Circuit yesterday seemed to fumble a Blakely issue concerning a restitution order in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004). In Wooten, the court rejected the defendant's claim that a restitution order based on judicial factfinding violated Apprendi, and in a footnote stated that "Mr. Wooten's Blakely argument fails for the same reason as his Apprendi argument, which is that the amount of the restitution award does not exceed any prescribed statutory maximum." But because Blakely changed our understanding of what Apprendi means by "prescribed statutory maximum," I am pretty certain that the analysis is not so easy. More generally, the playbook on exactly what Blakely means for restitution orders is going to take a lot of judicial time and energy to work out.

Similarly, US District Judge Philip G. Reinhard in US v. Lowe, 2004 U.S. Dist. LEXIS 15455 (N.D. Ill. Aug. 9, 2004), also dropped the ball concerning the possible application of Blakely in a habeas case. In Lowe, the court relies on the Supreme Court's decision in Shriro to find "that Blakely does not apply retroactively to motions under § 2255." But, as previously stressed here and here, it is improper for a court to rely on Shriro alone to find Blakely not retroactive (in part because Shriro did not have to consider the critical issue of a change in the applicable burden of proof).

P.S. Blame Sports Illustrated's early publication of its college football preview issue for the overuse of football metaphors. Go Bucs!

Spanning the Circuits

With big circuit news on the horizon — e.g., we still await written opinions from the Fourth Circuit in Hammoud and I believe the Sixth Circuit has an en banc Blakely case scheduled for hearings today — smaller news emerges daily as the circuits cope with a range of post-Blakely litigation realities.

For example, yesterday the First Circuit issued an extremely long opinion in US v. Cianci, 2004 U.S. App. LEXIS 16421 (1st Cir. Aug. 10, 2004), affirming the convictions of the former mayor of Providence and some associates on public corruption charges. At the end of the opinion, the First Circuit panel explains in this way how sentencing issues will be handled:

In light of the Supreme Court's recent decision in Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004), we do not decide the sentencing appeals raised by all defendants as well as challenges by defendants and the government to the district court's forfeiture order. By separate order, we have requested additional briefing and oral argument on these issues.

In something of a contrast, yesterday the Eleventh Circuit in US v. Curtis, No. 02-16224 (11th Cir. Aug. 10, 2004), continued its (questionable) efforts to keep certain defendants from being able to raise Blakely claims. As Howard Bashman first reported here, in Curtis the Eleventh Circuit rejects a defendant's request to file post-oral argument, pre-decision supplemental brief raising Blakely issues. As Howard astutely notes: the Curtis "order demonstrates [that] the Eleventh Circuit is strictly enforcing the waiver rules that normally apply in appellate litigation. Some other circuits, in contrast, appear to be taking a more lenient approach."

The Curtis decision is noteworthy (and troubling) not only for expanding the Eleventh Circuit's restrictions on who can now raise Blakely claims (details here), but also because tucked into footnote 2 are important (and contestable) conclusions about plain error analysis in light of Blakely. Specifically, the Eleventh Circuit says, "as an alternative basis for our decision, we conclude that Curtis has failed to demonstrate plain error," and in support of this conclusion the court asserts that "we discern no miscarriage of justice in the case, nor do we believe this case presents a situation that seriously affects the fairness, integrity or public reputation of judicial proceedings." Though I do not know if the case's facts support or refute this conclusion, but I cannot help but wonder how can the Eleventh Circuit be confident there is no miscarriage of justice without even allowing Curtis to brief this issue.

Relatedly, a defense attorney reports from the Ninth Circuit that the court is issuing orders in some previously decided cases (which are not yet officially "final") which essentially postpones final determination of sentencing issues "pending resolution of the effect of Blakely v. Washington on the United States Sentencing Guidelines." But, as this attorney insightfully notes, "I thought that the Ninth Circuit has already decided that issue in Ameline. I guess everything is on hold in the Ninth Circuit until the Supreme Court issues its decision."

Finally, the Tenth Circuit yesterday issued an opinion in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004), with a questionable Blakely ruling concerning a restitution order, but this issue merits its own distinct post.

Full Mooney en banc hearing

Post from Ron:
As reported by Jason Hernandez and Howard Bashman, the Eighth Circuit made it official today: they will decide Mooney en banc. Here is a link to the court's order.

Doug commented earlier on the players involved in the Mooney case, and pointed out the opinion's cryptic statements about waiver and severability. It will now be interesting to see whether and how the passage of a few weeks or months — and very eventful weeks and months in every circuit — will sharpen the Eighth Circuit's analysis.

Addition from Doug:
Though the order to take Mooney en banc vacates the decision by (two members of) the Mooney panel declaring the guidelines unconstitutional and (generally?) non-severable, I do not believe the Eighth Circuit has (yet) voted to consider en banc the "companion" decision of US v. Pirani (details here).

Thus, technically speaking, there is still precedent in the Eighth Circuit holding that at least portions of the federal sentencing guidelines are unconstitutional. Perhaps Pirani will soon be taken en banc as well, or perhaps district courts in the Eighth Circuit can still march to their own beat as did Judge Bataillon in US v. Swan, 2004 U.S. Dist. LEXIS 14883 (D. Neb. Aug. 2, 2004) (details here). Whatever the case, following the bouncing precedent in the Eighth Circuit remains quite a task.

P.S.: Ron's post title got me thinking that perhaps the Eighth Circuit is just suffering from Full Moon(ey) Fever, and I noticed that the great Tom Petty album Full Moon Fever has more than a few song titles that could reasonably be used to describe various aspects of the post-Blakely world.

What is it about the even circuits?

Perhaps it is something in the coffee, but it seems that the "even" circuits keep acting odd in our new Blakely world. The Second Circuit has been curious and clever through its recent order trying to freeze Blakely cases (details here), following up its prior efforts to certify Blakely questions to the Supreme Court (details here). The Fourth Circuit has now kept us waiting a week for opinions to explain and support its opaque order in Hammoud recommending "alternative" sentencing (background here and commentary here). And the action in the Eighth Circuit has been fast and furious and often hard to completely fathom (latest news with links to all the action here).

Of course, the Sixth Circuit has also had its role in this story, with an initial panel decision declaring the guidelines wholly unconstitutional (details here) that was then vacated en banc only five days later (details here). And I expected the Sixth Circuit to get back in the action this week with a scheduled en banc hearing planned for Wednesday.

But I was surprised to just discover that the Sixth Circuit in fact got back into the action, indirectly, through an unpublished opinion handed down last week in US v. Springs, 2004 U.S. App. LEXIS 16265 (6th Cir. Aug. 4, 2004). Though the opinion for the court in Springs never even mentions Blakely, the court affirms a sentence imposed under the federal guidelines that depended greatly on (contestable) judicial factfinding. Especially because the Springs opinion is unpublished, it should not be read as a definitive ruling on the post-Blakely status of the federal guidelines in the Sixth Circuit. Nevertheless, it is both interesting and a bit disconcerting that the Sixth Circuit is issuing an opinion which reads as if Blakely never happened — though Judge Moore, dissenting in part, does obliquely note that the case was argued before Blakely and that the "parties may wish to explore what effect, if any, that decision has on the instant case."

Get in Line

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

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

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

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

Is the Eighth Circuit taking Mooney en banc?

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

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

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

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

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

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

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

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

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

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

More fireworks in the Eighth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Smith, 2004 WL 1729821 at n.3 (emphasis added). Huh??

Do-overs?

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

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

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

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

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

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

Judicial economy?

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

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

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

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

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

The Fourth Circuit speaks!!!

This just in from one of my helpful readers:

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

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

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

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

What should the other circuits do?

With a Supreme Court grant of cert a near certainty, it is tempting to suggest (perhaps even hope) that the sentencing world can take a breather until the High Court decides what Blakely means for the federal guidelines. However, it could be two more months until the Supreme Court even hears argument on a Blakely federal sentencing case, and perhaps at least a few more months before the Supreme Court renders a decision. I doubt that the thousands of federal criminal cases now pending in district and circuit courts can be put completely on hold during this period.

Of course, those circuits which have already weighed in on Blakely have given their district courts interim guidance, although that guidance is sketchy at best everywhere except in the Fifth Circuit where court have been told to continue with business as usual. But what approach should other circuits, including the Fourth and Sixth where en banc arguments are scheduled for the next few weeks, take during this interim period of great uncertainty?

Interestingly, the Second Circuit has recently been taking what I might call a "duck and cover" approach to Blakely issues. For example, in US v. Jasper, 2004 U.S. App. LEXIS 15543 (2d Cir. July 28, 2004), a case involving a challenge to two guidelines enhancements, the Second Circuit in an unpublished disposition explained:

Our Circuit has recently certified to the Supreme Court several questions related to Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004). We will defer consideration of Jasper's sentencing challenge pending resolution of our request for certification. Once that is resolved, we will set a timetable for further briefing, should such briefing be appropriate. All of Jasper's other arguments are unavailing, and we reject them for substantially the same reasons expressed by the district court.

Similarly, in US v. Lenoci, 2004 U.S. App. LEXIS 15530 (2d Cir. July 28, 2004), a case involving a challenge to the federal guidelines' complicated grouping rules, the Second Circuit dropped this slightly comical footnote:

Oral argument was heard in this case on April 2, 2004, nearly three months before the Supreme Court decided Blakely v. Washington. While we bring the grouping issues raised in this case to the attention of the United States Sentencing Commission, we recognize that in light of Blakely, the Commission may be presented with more pressing matters to which it must attend. In this case, the parties have not raised any Blakely issues, nor do we believe that any such issues are immediately apparent. However, out of an abundance of caution, we stay the issuance of the mandate in this case until further direction from the panel. See, e.g., United States v. Penaranda, Nos. 03-1055(L), 03-1062(L), 2004 WL 1551369 (2d Cir. July 12, 2004) (in banc).

This "duck and cover" approach certainly is understandable (though perhaps a bit disturbingly reminiscent of the (in)famous Duck and Cover government film). However, for the sake of litigants and district courts, I am inclined to think that the Second Circuit, and other circuits that have not yet spoken to Blakely issues, should make a definitive ruling about the guidelines' status even though the Supreme Court will soon return to the fray.

The Second Circuit merits, in my view, great praise for initially sending a bold and loud message when it certified Blakely questions to the Supreme Court; but I do not think circuits can or should now completely avoid speaking to what Blakely means for federal sentencing while we all await Supreme Court action. Though the Second Circuit's "punt" made a valuable symbolic point, the failure of the Supreme Court to quickly "run with the ball" now leaves district courts in the Second Circuit and elsewhere adrift. Though district court innovation and experimentation concerning how to apply Blakely in the federal system can be quite valuable, I believe circuit courts should at least endeavor to provide a sound, sensible and consistent framework for that innovation and experimentation.

More news from the Sixth Circuit and elsewhere

The Sixth Circuit has now officially selected US v. Koch for en banc consideration of Blakely issues, with briefing to be completed in a week and oral argument set for August 11, 2004. This article provides some additional background and details. And, as they do so well, How Appealing has collected additional Blakely news stories here and the Blakely Blog has a morning report and recap here.

Also, though it requires a subscription for access, here is a link to an article in yesterday's New York Law Journal entitled "All 'Blakely' All the Time," which highlights that "The Internet Is Awash in Sites Devoted to the Recent Ruling." Many thanks to Ken Strutin, director of legal information services at the New York State Defenders Association, for effectively detailing all the Blakely resources on the web and for saying nice things about my efforts.

The Eighth Circuit speaks!!

I just got word that in US v. Mooney, the US Court of Appeals for the Eighth Circuit in a per curiam decision from a panel with Judges Murphy, Lay, and Bright, affirmed the defendant's convictions for mail fraud, securities fraud and money laundering and then "remand[ed] Mooney’s sentence to the district court for consideration of the issue he raises under Blakely v. Washington."

In a separate opinion, Judge Lay and Judge Bright hold that the federal Sentencing Guidelines are unconstitutional because they violate a defendant's Sixth Amendment right to have a jury find beyond a reasonable doubt and all facts legally necessary to his sentence, and the court adopts the approach set forth in US v. Croxford (D. Utah June 29, 2004) treating the Guidelines as non-binding but advisory, unless the defendant consents to a Guidelines sentence; on remand the district court should exercise its sound discretion to resentence defendant within the statutory minima and maxima of the offenses for which he was convicted. Judge Murphy — who was the Chair of the US Sentencing Commission until a few months ago — dissents from the majority opinion holding the guidelines unconstitutional.

UPDATE with analysis: Though not making as many important rulings as the Ninth Circuit decision in Ameline (details here and here), this decision in Mooney is fascinating and important in large part because of the cast of characters and also the factual setting. Though deeper commentary will follow late tonight, it bears note now that Judges Bright and Lay are both long-standing critics of the federal guidelines. See, e.g., Stith & Cabranes, Fear of Judging pp. 195-96 (1998) (lengthy endnote detailing copious (pre-Feeney) judicial criticism of the guidelines). And, as noted above, Judge Murphy served with distinction as the head of the USSC for over four years until resigning earlier this year. And, just to make the story richer, the sentence being reviewed was imposed by Judge James Rosenbaum, a name well known to those who closely follow federal sentencing reform (background here).

Of course, also in this interesting cast of characters is the defendant, Michael Mooney, who is not a low-level drug dealer but a former corporate vice-president convicted of insider trading. The decision in Mooney shows how complicated the guidelines make sentencing for economic crimes and also the challenges likely posed if complex financial issues have to be resolved by juries in the post-Blakely world. The decision also reveals — though it does not discuss at any length — the potentially very important and very challenging distinction between sentencing issues of law (what legally qualifies as "gain") and sentencing issues of fact (how much "gain" was in fact realized).

More Sixth Circuit action in Montgomery?

I have heard from a few sources that the Sixth Circuit did something today (en banc?) concerning the Montgomery decision. But I cannot yet find any tangible evidence of this. (Howard Bashman, where are you when I need you?) I am about to be off line for a meeting, but I hope readers in the know will use the comments to provide information and links to any news.

UPDATE: According to Jason Hernandez at the Blakely Blog, "the defendant and the government have joined in a Rule 42 of the Federal Rules of Appellate Procedure motion to dismiss the appeal in United States v. Tiffany Montgomery, No. 03-5256." I assume this motion will be granted, though I know that the Sixth Circuit has asked for expedited breifing in at least one other case that presents Blakely issues more cleanly.

More state Blakely news in Minnesota and elsewhere

After Wednesday was a huge Blakely day in the federal system, it looks like today might be dominated by state news (and particularly by northern states starting with an M). As first reported here, the Minnesota Court of Appeals issued the state's first major Blakely ruling ealier this week in the course of overturning a sex offender's 40-year prison sentence. To quote Paul Harvey, here's "the rest of the story":

In State v. Whitley, the Minnesota Court of Appeals holds that the findings of fact under Minnesota's pattern sex-offender statute need now be proved to a jury beyond a reasonable doubt. As noted in the very helpful e-mail report to me about the case:

Interestingly, the Court indicates that Apprendi and a Minnesota Supreme Court case called Grossman, and not just Blakely, dictate this result. The remand instruction is cryptic, as Minnesota has no system of sentencing juries or anything of the sort (at least not yet).

In news from states not starting with an M, this well-done article from the Knoxville News-Sentinel reports on a Tennessee decision from an intermediate appellate court which reduce a defendant's sentencing by a year in a child abuse case following Blakely.

And, Marcia Oddi over at the Indiana Law Blog has noteworthy posts here and here about the likely impact of Blakely on Indiana state sentencing.

The Michigan Supreme Court speaks!!

We now have what I believe is the first state Supreme Court decision to expressly consider Blakely. Today in Michigan v. Claypool, the Michigan Supreme Court articulated the view (in footnote 14) that Michigan's guideline scheme operates in a manner that avoids Blakely problems:

Michigan ... has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law. MCL 769.8. The minimum is based on guidelines ranges.... The trial judge sets the minimum but can never exceed the maximum (other than in the case of a habitual offender, which we need not consider because Blakely specifically excludes the fact of a previous conviction from its holding). Accordingly, the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment.

In a separate opinion concurring in part and dissenting in part, Chief Judge Corrigan suggests that Blakely matters in Michigan may not be so simple:

I agree with the majority that the recent United States Supreme Court decision in Blakely v Washington, does not invalidate Michigan’s indeterminate sentencing scheme as a whole. Nonetheless, the majority’s sweeping language regarding judicial powers to effect departures (not limited to downward departures) will invite challenges to Michigan’s scheme; it appears to conflict with principles set out in Blakely.

Here's the full opinion for your reading pleasure:
Download michigan_claypool_decision.pdf

There are additional opinions and issues of note in Claypool, which looks like a very interesting state guideline case wholly apart from its encounters with Blakely. Because I am not well versed on Michigan state law —indeed, there may be a clause in my Ohio State contract which legally forbids me from thinking too much about anything Michigan — perhaps readers more familiar with Michigan's sentencing scheme can provide some immediate commentary on this decision.

UPDATE: In this article discussing the Claypool decision, Jim Neuward, director of the State Appellate Defender Office, says "It's nowhere near as simple as the court thinks." said

Wednesday's work by the Judicial Branch

After a seemingly calm Blakely morning, the afternoon started its shift into warp speed with news that the Ninth Circuit had a major Blakley ruling in US v. Ameline (basic details here). The Ameline ruling is major first and foremost because it represents the third appeals court -- after the Seventh in Booker and the Sixth in Montgomery (though that panel decision has since been vacated) -- to declare aspects of the federal sentencing guidelines unconstitutional due to Blakely.

Though third in time, Ameline is by far the biggest circuit ruling to date because it addresses (though sometimes obliquely) so many more issues than any of the other circuit rulings. This post over at All Deliberate Speed provides highlights of ground covered in Ameline, and this article from law.com is also very informative.

Most critically, the decision speaks directly and thoughtfully to the severability issue -- rather than punting as was done in Booker. The Ameline court draws on canons of construction and congressional intent to conclude the guidelines are severable. See, e.g., slip op. at p. 33 ("the government has failed to overcome the presumption in favor of severability"). I am not sure the court really loved this conclusion, but it was clearly chary about declaring the whole guideline structure unconstitutional. See, e.g., slip op. at p. 30 ("We are reluctant to establish by judicial fiat an indeterminate sentencing scheme.").

Interestingly, though my own impression is that district courts to date have been fairly evenly split on the severability question, the Ninth Circuit implies in footnote 2 that it is adopting the majority rule. Indeed, on Wednesday, I received three new district court opinions declaring the guidelines unconstitutional, two of which found the guidelines not severable, Compare US v. Marrerro, 04 Cr. 0086 (S.D.N.Y. July 21, 2004) (Rakoff, J.) (not severable) and US v. Sweitzer, Cr-03-087-01 (M.D. Pa. July 19, 2004) (Rambo, J.) (same), with US v. Lynch, 03-CR-137-K (N.D. Ok. July 2004) (Kern, J.) (severable).

There is a lot more which can and should be said about Ameline, but I've got two other branches to get to tonight. Nevertheless, I see two additional big elements in the decision: (1) the court expressly sanctions the use of a sentencing jury to find aggaravating sentencing facts (see slip op. at 34; see also background here), and (2) the court implicitly holds that a defendant can waive his right to a jury, but cannot "waive down" the burden of proof from beyond a reasonable doubt to preponderance (see slip op. at 34 n.19).

The 9th Circuit speaks!!

This just in. The Ninth Circuit, in US v. Ameline, through an opinion by Judge Richard A. Paez (with Judge Wardlaw in agreement and Judge Gould dissenting), decided to "examine sua sponte whether the Blakely rule applies to sentences imposed under the Sentencing Guidelines." And it holds:

We hold that Blakely’s definition of statutory maximum applies to the determination of the base offense presumptive ranges under § 2D1.1(c) of the Sentencing Guidelines, as well as the determination of the applicability of an upward enhancement under § 2D1.1(b)(1). As a result, we hold that Ameline’s sentence, based on the district court’s finding by a preponderance of the evidence of 1,603.60 grams of methamphetamine—despite Ameline’s admission of only a detectable amount of methamphetamine—violates Ameline’s Sixth Amendment right to a jury trial. Because we may sua sponte review an issue based on a change in the law by the Supreme Court, we hold that we may properly review Ameline’s Blakely claim and conclude, regardless of whether we apply the harmless or plain error standard, that the district court violated Ameline’s right to have the facts underlying his sentence found beyond a reasonable doubt. Finally, we hold that the Blakely rule’s effect on the determination of a base offense level under § 2D1.1(c) and an upward enhancement under § 2D1.1(b)(1) do not render the Sentencing Guidelines facially invalid. Accordingly, we vacate Ameline’s sentence and remand for resentencing.

More commentary when I get to actually read the full opinion (all 45 pages of it!)

UPDATE: I'm still working through the opinion, but have been alerted to the neat fact that this blog is cited in a few of the footnotes. Cool.

Sixth Circuit going en banc in Montgomery

In a post available here, I noted some prudential considerations that might lead active members of the Sixth Circuit to let the Montgomery decision stand (background here), even though the bold and opaque ruling likely does not represent the views of a majority of active judges on the court. But Howard Bashman at How Appealing has the official word and details here that the Sixth Circuit issued an order "granting the request of a member of the Court for rehearing of this case en banc." Consequently, the "previous decision and judgment of this Court is vacated, the mandate is stayed. Supplemental briefs are due from both sides on July 28. As I suggested here right after Montgomery was handed down, the decision to take Montgomery en banc is not surprising given the peculiar factual setting for a big Blakely ruling and the not wholly representative judges on the panel.

As noted in my earlier post, by granting en banc review and vacating the original panel decision, sentencing rules within the Sixth Circuit are returned to uncertainly (and potential disparity from district to district) until a decision is rendered by the en banc court. In addition, because of the peculiarities of the Montgomery case as a setting for addressing Blakely, I think courts and litigants in the Sixth Circuit might have occasion to wonder whether the en banc court will (or even should) address Blakely at all when the issue might be altogether avoided.

In short, the chaos continues. A few posts soon will discuss the status and prospects of developing clean-up efforts.

Anyone doing Blakely "head counts"?

A number of folks have reasonably asked — and I am always wondering — about the total number of courts that have declared the federal sentencing guidelines unconstitutional in part or in whole. In addition to not having had the time to "do the math," one challenge in such a "head count" is to decide how to define and categorize different Blakely-related rulings. Some on-the-record statements of unconstitutionality might be deemed dicta, and I can tell from some newspaper reports that some rulings may not (yet?) be reflected in a written opinion. In addition, we have seen some judges making "tentative" rulings in response to the submission of special verdict forms or in a discussion of plea agreements.

The folks at UUSGuide are, to my knowledge, doing the most systematic job of organizing rulings of unconstitutionality by circuit on its Blakely page here. But I am not sure if anyone has — or is trying to systematically organize — all the information about what is going on out there. Needless to say, I would be grateful to anyone working on such a head count for sharing any cumulative data.

Taking Blakely to the (en) banc

Yet another reason for the Supreme Court to move fast on a Blakely case is to try to reduce the stunning amount of lower court judicial time and energy being occupied with efforts to figure out what Blakely means for the federal system. As detailed in this article, renown sentencing lawyer Benson Weintraub is seeking to have the Southern District of Florida district judges (all 24 of them) rule en banc on the constitutionality of the federal sentencing guidelines in the wake of Blakely. Though en banc rulings by district courts are rare, in this setting Weintraub's motion, which seeks a uniform standard for post-Blakely sentencing in the district, seems to make a lot of sense. Otherwise, there is a reasonable risk that, as in Utah, different courts in the same district will apply considerably different sentencing standards.

Similarly, I have be speculating lately about whether the Sixth Circuit will or should seek to consider en banc the case of US v. Montgomery. As detailed here and here, the Montgomery ruling is bold, opaque and likely does not represent the views of a majority of active judges on the Sixth Circuit. But prudential considerations might suggest that active judges in the Sixth Circuit leave this decision alone. First, it is all but inevitable that the Supreme Court will speak to these issues (and soon, I hope); diverting the time and energy of all the active Sixth Circuit judges to consider and rule on this issue may not be wise given that any en banc ruling would be controlling law only until the Supreme Court speaks. Second, because just the order granting en banc review serves to vacate the original panel decision, sentencing rules within the circuit would be again uncertain in the period between the granting of en banc review and the rendering of a decision by the en banc court. Even if active Sixth Circuit judges do not think Montgomery is a sound decision, they might reasonably conclude that a consistent (unsound) ruling is better for the time being than circuit uncertainty and possible intra-circuit district court variation in sentencing approaches. However, this article from the Toledo Blade unsuprisingly notes that district judges in the Sixth Circuit are still uncertain about how best to proceed with sentencings.

Finally, you could take to the bank my prediction that Ernie Els was the player to beat at the British Open. And congratulations to Todd Hamilton for doing just that.

California dreaming...

I am planning on getting a good night of sleep tonight, and perhaps I'll be dreaming about the California Supreme Court's ability to get right to work on the Blakely issue. Here's my prior post discussing People v. Towne, the first case in which Blakely issues will be examined by the California Supreme Court.

At first, based on a read of the lower court opinion, it was hard to figure out whether Towne was going to present the Blakely issue cleanly. Helpfully, additional information --- particularly this supplemental letter containing points and authorities in support of the defendant's argument for a reversal of his sentence to the upper term --- suggests that Towne should be a very interesting and effective case for state consideration of Blakely. Also helpful and interesting is this article giving background on the case.

Finally, it is worth highlighting that the fine folks at the First District Appellate Project now have a host of additional California-specific briefs/petitions on their fine FDAP Blakely Page.

Leaderboard Report

Though Judge Cassell is still the leader in the clubhouse with 3 major Blakely decisions to his name, the Seventh Circuit is helping to set the pace for circuit courts with another Friday afternoon entry. In Simpson v. US, the defendant asked "for permission to file a second or successive collateral attack under 28 U.S.C. § 2255" following Blakely. The Seventh Circuit dismissed Simpson’s application, but did so "without prejudice to renewing his request should the Supreme Court make the rule announced in Blakely applicable to cases on collateral review."

Interestingly, the Seventh Circuit, in a unanimous opinon written by Judge Rovner joined by Judges Ripple and Williams, flatly concluded that the "rule announced in Blakely is based in the Constitution and was not dictated or compelled by Apprendi or its progeny." Then, after explaining how the Blakely rule would impact Simpson's sentence, the court explained:

Assuming that the Supreme Court announced a new constitutional rule in Blakely and that Simpson’s sentence violates that rule, the proposed claim is premature. The Supreme Court has not made the Blakely rule applicable to cases on collateral review as is required for authorization under § 2244(b)(2)(A) and § 2255 ¶8(2).... Should the Supreme Court announce that Blakely applies retroactively to cases on collateral review, Simpson can file a renewed application.

And, speaking of leaderboards, through two rounds of the British Open, Skip Kendall is the surprising leader at -7, while my pick Ernie Els is tied for fifth at -4 (along with Vijay Singh and others). Phil Mickelson posted an impressive 66 today to get in at -3, while Tiger Woods is hanging around at -1. Should be a great weekend of golf.

The Sixth Sense

M. Night Shyamalan has a new movie due out later this month, but I have come to read the Sixth Circuit's decision in Montgomery (background here) as something of a revival of his modern classic The Sixth Sense.

First, I would bet the Montgomery decision is already giving prosecutors (and perhaps other Sixth Circuit judges) nightmares. Plus, in a case apparently without upward enhancements at issue and in which Blakely was neither briefed or argued, the decision to declare the guideline only advisory in Montgomery sure was a surprise ending. And, in the end, the bold and opaque decision will likely have an effect that might even be called brooding. Here's an article discussing fallout from Blakely and Montgomery in the Sixth CIrcuit. It notes that:

Federal judges in southern Ohio were so worried about the impact of the [Blakely] decision that they declared a 30-day moratorium last week on all sentences that could be affected by the Blakely decision. Court officials say at least 100 cases have been put on hold. "There's just a lot of confusion because no one really knows what the impact will be," said Jim Higgins, executive of the 6th Circuit. "Clearly, people are searching for answers."

Second, the mantra for the Montgomery decision should be "I see dead cases." In Montgomery, Judge Gilbert Merritt places heavy relaince on 18 U.S.C. § 3553(a) when declaring the guidelines only advisory as a result of Blakely. But, over a decade ago, in US v. Davern, 937 F.2d 1041 (6th Cir. 1991), Judge Merritt forcefully argued that § 3553(a) justifies approaching the guidelines as "general principles of sentencing" in order to "transform mandatory rules into the more modest name guidelines." But his collegues before long made his ruling a dead letter by taking the case en banc and reversing it. US v. Davern, 970 F.2d 1490 (6th Cir. 1992).

Coast to Coast Blakely developments in the states

In addition to the decision by the California Supreme Court to tackle Blakely in a pending appeal, Blakely issues are start to crop up in other state appellate decisions around the country. Here are two interesting examples.

Florida: In the (hard to follow) case of Sigler v. Florida, 2004 Fla. App. LEXIS 10485 (4th Dist. July 14, 2004), a Florida intermediate appellate court explained that, before Apprendi and Blakely, the "Florida Supreme Court [had] construed [Florida code] section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination. See I.T. v. State, 694 So. 2d 720 (Fla. 1997)." The Sigler court then explains its view that:

[T]hese later decisions [of Apprendi and Blakely] make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element of the permissive lesser included offense. That means that as for this circumstance we are expressly holding the statute invalid under the United States Constitution.

In other words, the Sigler court is finding a Sixth Amendment limit on appellate judge fact-finding as well as sentencing judge fact-finding.

Tennessee: Meanwhile, in Tennessee v. Fuller, 2004 Tenn. Crim. App. LEXIS 626 (July 13, 2004), the court frankly asserts that the "United States Supreme Court's recent opinion in Blakely v. Washington, 2004 U.S. LEXIS 4573 (2004), calls into question the continuing validity of our current sentencing scheme." Though the Fuller court then avoids finding a Blakely problem in the case at hand, it still seems noteworthy that the Tennessee courts already see problems with its sentencing schemes in light of Blakely.

Action by the Supreme Court (of California)

Showing how fast it can move, the Supreme Court of California today granted a petition for review in People v. Towne, as noted here, and in so doing stated:

In addition to the issue raised in the petition for review, the parties shall address the following issues: (1) Does Blakely v. Washington (June 24, 2004) __ U.S. __ [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence? (2) If so, what standard of review applies, and was the error in this case prejudicial?

My instinct is to praise the Supreme Court of California for taking on Blakely so quickly. However, it might be argued that the Supreme Court of California ought to let lower court hash through some of these issues a bit first. Moreover, as Jonathan Soglin over at Criminal Appeal discusses briefly, the factual setting and legal issues raised in People v. Towne make the case pretty complicated. The unpublished court of appeals decision below is primarily focused on whether the trial court "abused its discretion by imposing the upper term and doubling it after refusing to" strike a prior conviction (a discretion that the California Supreme Court found provided in state law in People v. Superior Court (Romero), 13 Cal.4th 497 (1996). However, in the decision's final paragraph, the lower court stated:

Additionally, the trial court did not abuse its discretion by imposing the upper term. Contrary to appellant’s claim, the jury’s necessary findings on the acquitted counts did not conflict with the court’s findings. The court was well aware of the jury’s findings, acknowledged the victim lied and observed that the jury had been able to weigh the evidence and make credibility findings in reaching its verdicts. Moreover, even if there had been error, it would have been harmless. “A single factor in aggravation will support imposition of an upper term. [Citation.] ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) [Footnote 3: Further, the trial court could have used as reasons that appellant had served prior prison terms, his prior performance on probation or parole was unsatisfactory and that he was on parole at the time of the current offense. (See People v. Steele (2000) 83 Cal.App.4th 212, 227.)]

I believe that it is this portion of the opinion that is prompting the Supreme Court of California Blakely question, but it would seem that there are a number of interwined issues concerning the operation of discretion and the impact of prior convictions in the decision to impose an "upper term sentence." Perhaps Californians (or others) can use the comments to discuss whether Towne can or likely will be a good case for the Californias courts to start clearing up emerging Blakely issues in California law.

When and how will SCOTUS get involved?

As noted before, there is no doubt the Supreme Court will have to speak on Blakely issues. But now the big questions are not only when, but also how the Supreme Court will get involved. Helpfully, this fantastic piece at the SCOTUS Blog provides an insightful account of some of the possibilities, challenges and opportunites presented by different routes for Supreme Court review. I completely agree with Lyle Denniston's analysis that, as they did in Mistretta, the High Court is more likely to take a case from a district court than one of the appeals already in front of them. Judge Cassell's Croxford case seems like a good candidate, though there is also Judge Goodwin's Shamblin case and many other viable possibilities now. One wonderful legal realist question is whether the Justices will care, when deciding which case to take, about the underlying crime or just about whether the case presents the legal issues cleanly. I always thought it was significant that the Court used the Rodney King case as its vehicle to issue a pro-defendant ruling about departures in Koon v. US. See generally 76 Notre Dame L. Rev. 21 (2000).

In any event, I am very disturbed by those parts of the SCOTUS blog report that suggest there is no excitement about this issue in the halls of the High Court. As of this writing, at least 15 circuit judges have said on the record, "Review this matters quickly, Supremes!" (Judges Posner and Easterbrook and all the active judges of the Second Circuit.) Meanwhile, the Sixth Circuit may now be a completely guidelines-free zone after the decision today in Montgomery. And the Senate Judiciary Committee, showing I think a lot of respect for how the judicial branch can handle these matters, seemed to conclude yesterday that it would stay out of the scrum so that the Supreme Court could get the first word on what Blakely means for the federal system. The Supreme Court needs to act and act quickly if only to justify the faith that I think is now being shown by Congress in the judiciary's ability to handle it own mess.

I am on record as saying to Congress that it should "Go Slow." Now let me be clear on the record that I think the message to the Supreme Court should be three words: "Go really fast!"

More later about the challenges facing the High Court whenever they take on this matter.

The 6th Circuit Speaks!!

I had heard rumors that other circuits were soon to join the fray, and now in US v. Montgomery, 03-5256 (6th Cir. July 14, 2004), the Sixth Circuit becomes the second federal circuit court to hold that Blakely invalidates the federal guidelines. Here's the key language from the opinion, authored by Circuit Judge Gilbert Merritt with Judges Martha Daughtrey and John Nixon (sitting by designation) in the unanimous panel, which has my brain racing (see extended commentary below):

[I]n order to comply with Blakely and the Sixth Amendment, the mandatory system of fixed rules calibrating sentences automatically to facts found by judges must be displaced by an indeterminate system in which the Federal Sentencing Guidelines in fact become "guidelines" in the dictionary-definition sense ("an indication or outline of future policy," Webster's International Dictionary (3d ed. 1963)). The "guidelines" will become simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for....

The Sentencing Reform Act of 1984, which gave rise to the present determinate sentencing system, does not by its terms require a mandatory, rule-bound system calibrating sentences to judicially-found facts. The statutory language would have allowed the creation of an indeterminate system in which the guidelines are simply considerations for Article III federal judges to access before passing sentence. The most important provision of the statute, section 3553(a) of Title 18, simply says that "the court, in determining the particular sentence to be imposed, shall consider" a large number of listed factors like the "seriousness of the offense" and the "characteristics of the defendant," only one of which is the "kind of sentence and the sentencing range established" by the Sentencing Commission. In addition to the various factors that a judge should "consider" as listed in Section 3553(a), the next sub-section counsels the judge to consider the "aggravating or mitigating circumstances" of the particular case. The Sentencing Commission itself interpreted the statutory language and converted this advisory language into the kind of mandatory rules of a determinate system of sentencing that the Supreme Court has now invalidated. In light of Blakely, and the language of the enabling act itself, a district judge should no longer view herself as operating a mandatory or determinate sentencing system, but rather should view the guidelines in general as recommendations to be considered and then applied only if the judge believes they are appropriate and in the interests of justice in the particular case.

More huge news and more commentary when I can digest it all.

UPDATE: Like Blakely itself, this brief decision creates, at least for me, a lot more questions than it answers. My quick reaction is that the Sixth Circuit is ruling that the Commission-created administrative guidelines are unconstitutional (as applied?) because they require impermissible judge fact-finding, but that the Sentencing Reform Act as a whole survives Blakely because the statute itself does not require judge fact-finding. (Of course, the shrewd reader might notice this is an inverted perspective on why Easterbrook and the Fifth Circuit think the Commission's guidelines remain constitutional!) The result, then, is to convert the guidelines into just advisory recommendations to the judge. Neat result, but a head-scratcher for a number of reasons:

First, the legislative history of the SRA shows that Congress contemplated and rejected the creation of merely "voluntary" guidelines. See Mistretta, 488 U.S. at 367 (noting that the "Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory and citing S.Rep. No. 98-225 (1983) at p. 79). Ergo, I do not see how the Sixth Circuit's reading of the SRA fits with its legislative history. UPDATE ON THIS POINT: A wise colleague noted that there is support in the House version of legislative history of the SRA for making the guidelines more advisory and less presumptive, and thus it might be arguable that you are in fact being faithful to the SRA to conclude, after Blakely knocks out the mandates, that an advisory system should be left standing.

Second, the Sixth Circuit asserts:

"This solution to the immediate problem in federal sentencing is not inconsistent with the alternative position by the Deputy Attorney General in his memo to federal prosecutors, a memo forwarded to the federal judiciary on July 7, 2004. ("In that event [when the guidelines may not be applied as mandatory rules], the government should urge the court to impose sentence, exercising traditional judicial discretion, within the applicable statutory sentence range" with the "recommendation in all such cases ... that the court exercise its discretion to impose a sentence that conforms to a sentence under the Guidelines....")"

But I think the effect, if not the intent, of the Sixth Circuit's ruling is that the federal guidelines CANNOT BE IMPOSED IN ANY CASE in the Sixth Circuit, even if the case raises no Blakely problems or the defendant waives his Blakely rights! I am certain this is not DOJ's view of the impact of Blakely. UPDATE ON THIS POINT: On a second read, I think it is arguable that this opinion is only meant to apply Blakely-problematic cases, but who knows.

FINAL POINTS FOR NOW: This was a very peculiar factual setting for making a big Blakely ruling, not to mention a panel which is, I think it is fair to say, not wholly represenative of the Circuit as a whole. I think the spelling in the Sixth Circuit is "en banc," no?

This is still a very quick reaction to a very opaque case. But I am starting to think the post-Blakely world actually looks a lot like an M.C. Escher painting.

Thoughts and holdings on Blakely retroactivity

Figuring out what Blakely means for on-going cases is, of course, critically important for courts and practitioners right now. But also extremely consequential is whether Blakely might have retroactive application. Though the Supreme Court limited the retroactive application of its Ring holding in Schriro on the same day it decided Blakely (background here), in that case there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely. Also recall that Justice O'Connor stated in her Blakely dissent that "all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack." Blakely, slip. op. at 11 (O'Connor, J., dissenting).

Despite viable arguments about Blakely's retroactivity, most commentators take the (slightly cynical) view that courts will seek to limit retroactivity simply because the consequences of giving Blakely retroactive effect could be so extreme. (Recall Justice O'Connor's footnote suggesting that well over 200,000 cases in the federal system alone could be impacted if Blakely was just made retroactive back to when Apprendi was decided in 2000.) I generally agree with this legal realist perspective that courts, worried about a flood of habeas petitions, will try to limit the reach of Blakely (although, of course, the same logic also supported the widely held belief that the Supreme Court would never extended Apprendi to guideline enhancements in the Blakely decision itself).

Of course, last week we already had evidence of court efforts to limit the retroactive reach of Blakely when the Eleventh Circuit, In re Dean, held that Blakely cannot form the basis for authorizing a second or successive habeas filing (background here). And I have now come across another example of a court speaking to Blakely's possible retoractivity. In State v. Burch, 2004 WL 1557822 (Minn. App. July 13, 2004), an unpublished intermediate appellate court state case, we get this noteworthy discussion of the retoractivity issue:

Although Blakely, which is based on Apprendi v. New Jersey, 530 U.S. 466 (2000), may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision, appellant has failed to make a showing that Blakely will affect sentences, such as his sentence, that were final before Apprendi was decided. This court has held that Apprendi does not apply retroactively on collateral review, including postconviction. State v. Meemken, 662 N.W.2d 146, 150 (Minn.App.2003). See Schriro v. Summerlin, 72 U.S.L.W. 4561, 4563 (U.S. June 24, 2004) (stating that the holding of Ring v. Arizona, 536 U.S. 584 (2000), a case which reinforces the Apprendi requirement that a jury find any aggravating facts that lead to a greater sentence, is properly classified as procedural, and therefore does not apply retroactively to cases already final on direct review). Therefore, absent any authority that Blakely applies to appellant's sentence, we decline to address this issue.

Importantly, though this decision refuses to consider the applicability of Blakely to pre-Apprendi cases, it also states that Blakely "may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision."

End of day news and commentary

The Blakely news and corresponding media coverage is growing as everyone figures out how big this story is. The Wall Street Journal (which unfortunately does not provide content on-line without a subscription) may have on Wednesday another in its series of thoughtful articles about the Blakely fall out. In addition, here's a brief (and surely incomplete) run-down of other noteworthy Blakely news.

Federal Developments: this AP story reports that U.S. District Judge Stewart Dalzell (ED Pa.) sentenced Frederick Leach to a 15-year term in a drug case instead of the guideline recommended 30-year term citing Blakely; Martha Stewart's sentencing is scheduled for Friday though U.S. District Judge Miriam Goldman Cedarbaum has not yet ruled on Stewart's lawyers' request to declare the federal sentencing guidelines unconstitutional -- this thoughtful article details the strategic challenges Stewart faces in deciding whether to speak at the sentencing.
MORE: This article dicusses Blakely issues in a Virginia District Court; this article reports that U.S. District Judge Michael J. Reagan of SD Ill. has continued all his sentencings to September or October; this article reports that U.S. District Judge John Manos has concluded that "the Blakely case does not affect federal law"; and this article quotes Deb Phillips of the U.S. attorney's office in Nashville saying, ''Right now, [Blakely will] just be a blip.''

State Developments: according to this article, Tennessee Criminal Court Judge Rebecca Stern sentenced a man convicted of raping an 82-year-old woman to a minimum 25-year sentence on Monday and said her sentence was limited by the Blakely ruling; and according to this article, Washington State Superior Court Judge Richard Strophy reduced by 19 months the sentence of a convicted murderer Monday relying on Blakely.

Other Commentary: Jason Hernandez over at the Blakely Blog provides this thoughtful run-down of issues raised during today's Senate hearing; Professor Kyron Huigens over at Punishment Theory continues his analysis of the problems he has with Justice Breyer's metaethics.

My own two cents: I found the Senate hearing very heartening with its consistently thoughtful and balanced discussion of many tough issues and its hints that at least a few Senators might want to re-think some major elements of the existing federal sentencing scheme. In the debate over the current "chaos" and the need for a quick fix, I continue to think it is very signficant that the USSC asserts "that a majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely." USSC Written Testimony at p.2 (emphasis added). Finally, since DOJ representative Willaim Mercer's suggested that the time for legislative action might be in August, I am fearful that DOJ, if it feels that judges are low-balling sentences post-Blakely, will return to the Hill later this summer to seek a pro-prosecution "fix."

What the....? (aka The 9th Circuit mumbles)

Late yesterday I noticed this Ninth Circuit "Order of Remand" in US v. Epis, which cites Blakely. Here's the full text of the order:

This cause came on for hearing before the court on June 16, 2004. The Supreme Court of the United States has now granted certiorari in Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted (U.S. June 28, 2004) (No. 03-1454), which is a related case dealing with the growing and use of marijuana for medicinal purposes. This court now remands this case to the district court for reconsideration of the judgment following the decision by the Supreme Court in Raich. If, after considering any application of Raich to this case, the district court determines that Epis’s conviction should remain in tact, the district court should then proceed to re-sentence Epis in a manner consistent with the Supreme Court’s decision in Blakely v. Washington, 542 U.S. ___ (2004) 2004 WL 1402697 (June 24, 2004). The panel of this court retains jurisdiction pending reconsideration by the district court.

I did not post this decision because I came to the conclusion that this was just one of a number of cases I've seen (especially from state courts) remanding for reconsideration in light of Blakely. See, e.g., State v. Beaulieu, 2004 Minn. App. LEXIS 774 (July 6, 2004). However, a reader from the Ninth Circuit wrote in to say this opinion shows that "The Ninth Circuit appears to have weighed in, albeit somewhat cryptically, on Blakely on the same side as the Seventh Circuit." When I wrote back to say that I was reading this text narrowly as not weighing in on the merits, the reader responded:

"You are not alone in that [reading], since it [remanded] without any reasoning or explanation. But given the stare decicis rule in this circuit, it is hard to assume that since it is a published decision and it clearly directs the district court to apply Blakely in sentencing it does not have the same effect on all sentencing decisions in the circuit until overruled by either the court en banc or the Supreme Court. On the other hand, who can make much sense out of the whole Blakely morass?"

Can the smart folks out there with your Federal Courts books open help us figure this one out??

UPDATE: In the comments, the view seems to be that this is not a ruling on the merits or of any defined consequence. It also appears that a more definitive discussion of Blakely should be coming from the Ninth Circuit soon.