Sentencing Law and Policy

Latest trial of Michael Slager for killing Walter Scott taking place during his federal sentencing for civil rights offense

As noted in this post from May, after a state mistrial in December 2016, former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  That resolution all but ensured that continued debate concerning Slager's action would take place during his federal sentencing.  And this local article reporting on the first day of that sentencing highlights that this continued debate is in the form of a kind of mini-trial at sentencing.  Here are some details:

What Walter Scott did during his fatal confrontation with North Charleston officer Michael Slager and what the policeman said afterward quickly became the focus of the first day of Slager’s sentencing hearing.

Slager, 36, already has acknowledged violating Scott’s civil rights by repeatedly shooting the fleeing black man as a bystander filmed the encounter. He pleaded guilty to that in May, but key facts remain in dispute — a point on full display Monday at the federal courthouse in downtown Charleston.

Before hashing out a penalty, a judge must decide this week what underlying offense Slager committed in depriving Scott of his constitutional right to be free of excessive force: murder or voluntary manslaughter. After listening to three government witnesses, the judge gave no initial indication on how he might rule. The proceeding is expected to resume Tuesday morning, possibly with another prosecution witness before the defense takes over.

Prosecutors said Scott was simply trying to escape a traffic stop, and they called eyewitness Feidin Santana to back up their contention that Slager murdered Scott and lied to cover his tracks. They rejected Slager’s explanation for the shooting: that he fired only after Scott took his Taser. “I saw a man just determined to get away and leave,” Santana said of Scott. “Like I say in the video, it was an abuse — something unnecessary.”

It was the second time Santana publicly testified against Slager, whose murder trial in state court ended a year ago with a hung jury. Portions of his latest account in U.S. District Court were geared toward helping Judge David Norton decide whether Scott’s conduct contributed to Slager’s decision to shoot. Prosecutors said no; it was wrong from the moment the officer first pulled the trigger.

But defense lawyers said Scott could have at any point stopped and surrendered, and lead attorney Andy Savage pressed Santana about whether Scott had ever raised his arms and given up. “If that happened,” Santana responded, “we wouldn’t be here.”

Santana’s video footage of the April 4, 2015, killing brought national scrutiny to North Charleston amid a broader examination of police-involved deaths across the country. It also landed Slager in jail on a state murder charge when the cellphone clip emerged publicly three days later.

But the jurors in the state case were unable to agree whether he had committed a crime. At least one of them sat in the courtroom Monday, this time as an observer....

The hearing resembled a trial without the same rules of evidence and procedures that can slow proceedings. And the ultimate arbiter of justice is Norton, who can pick any sentence between no prison time and up to life behind bars.  A pre-sentencing report suggested a term of between 10 and nearly 13 years in prison, but defense attorneys asked the judge Monday for a “significant” departure from those guidelines because of the role Scott played in his own death.

In my prior post about this case after Slager's plea, I calculated based on the government advocating for the court to apply the guidelines for second degree murder and obstruction of justice that Slager would be facing a guideline range of roughly 17 to 22 years of imprisonment. But it would appear that the PSR in this case has urged the court to consider Slager guilty only of voluntary manslaughter for sentencing purposes. Of course, Slager has in fact only pleaded guilty to "a violation of 18 U.S.C. § 242, Deprivation of Rights Under Color of Law," but in the magical world of federal sentencing the offense of conviction still often does not really matter all that much.  In this high-profile case, it will be a judge not a jury tasked with both deciding what crime he really committed and what sentence should go with that crime.

Prior related post:

• After his guilty plea to a civil rights offense, what federal guideline range and ultimate sentence will Michael Slager face for killing Walter Scott?

"Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights"

The title of this post is the title of this interesting and important new article by Sarah French Russell recently posted to SSRN. Here is the abstract:

Across the country, states are grappling with how to comply with the U.S. Supreme Court’s recent decision in Miller v. Alabama, which held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.  Following Miller, it appears a sentencer may impose life without parole on a juvenile homicide offender only in those rare instances in which the sentencer determines, after considering the mitigating qualities of youth, that the juvenile’s crime reflects “irreparable corruption.”  Courts are preparing to conduct resentencing hearings in states nationwide, and new cases where juveniles face the possibility of life in prison are entering the courts.

Yet courts and scholars have not addressed a fundamental question: Who is the sentencer? Can a judge decide that a particular juvenile should die in prison or does the Constitution give juveniles the right to require that a jury make that determination?  Courts and state legislatures responding to Miller have assumed that a judge can impose life without parole on a juvenile, as long as the judge has discretion to impose a less severe sentence.  But viewing Miller in light of the Supreme Court’s recent Sixth Amendment jury right jurisprudence raises questions about the role of the jury in these post-Miller sentencing hearings.

In particular, does an Eighth Amendment limit on a sentence operate in the same way as a statutory maximum sentence and set a ceiling that cannot be raised absent a jury finding? If so, a jury must find the facts beyond a reasonable doubt that expose a juvenile to life without parole. Understanding how the Court’s recent Sixth and Eighth Amendment cases interact has broad implications for how sentencing authority is allocated not only in serious juvenile cases but also in our justice system more widely.

Judge Young's latest account of (and homage to) jury involvement in sentencing fact-finding

US District Judge William Young of the District of Massachusetts, who has produced a regular supply of interesting (and lengthy) opinions about the role of juries in the modern criminal justice system, today issued another interesting (and lengthy) opinion such in US v. Gurley, No. NO. 10-10310 (D. Mass. May 17, 2012) (available for download below).  Judge Young's work always merits attention, and the 51-page sentencing opinion in Gurley does not disappoint.  There is far too much ground covered in Gurley to allow a simple summary, but here is the start of the main legal discussion section -- which begins on page 24 of the opinion! -- to provide a flavor of why Gurley is today's federal sentencing must-read:

I am a district judge sitting in the First Circuit. I owe the utmost fidelity to the Acts of Congress, the decisions of the Supreme Court, and those of the First Circuit. Government waiver aside, I owe a duty to explain that my post-Booker insistence on keeping the jury-front-and-center is fully consonant with the controlling statutes and case law.

The issues presented to this Court are whether the Court “must” apply the ten-year mandatory minimum sentence to the basic sentencing range set out in 21 U.S.C. § 841(b)(1)(C) and whether the principle of juror lenity bears on determinations as to the authorized sentence range.

I answer to the first question in the negative because the statutory range authorized by the jury does not provide for a mandatory minimum sentence. As to the second question, Supreme Court precedent binds this Court to recognize the principle of juror lenity in determining the applicable sentencing range. In doing so, this Court does not abdicate its post-Booker discretion to decide a just sentence based on a fair preponderance of the evidence as counseled by the Sentencing Guidelines. Rather, this Court endeavors to harmonize the principle of juror lenity with the jury’s recognized authority to acquit a defendant should a sentencing range appear to it disproportionate.

Download 10-cr-10310Gurley Mem

Fascinating backstory for why former judge Jack Camp does not even have a felony conviction

Thanks to this lengthy piece by Robin McDonald at The Daily Report legal paper, which is headlined "Camp sentence: 30 days in prison; Prosecutors object to visiting judge converting Camp's felony plea to a misdemeanor," I have learned that former federal judge Jack Camp did not even get saddled with a felony conviction as a result of a surprise development during his federal sentencnig last Friday.  Here is the remarkable backstory:

A visiting federal judge from Washington on Friday sentenced former U.S. District Senior Judge Jack T. Camp to 30 days in prison and 10 weeks of community service on drug and theft charges.

In a surprising move, U.S. District Senior Judge Thomas F. Hogan reduced the sole felony to which Camp had pleaded guilty last fall to a misdemeanor.  Camp's defense team — in what federal prosecutors claimed was a breach of Camp's plea deal last year — had raised legal issues while seeking probation for Camp that led to Hogan's action.

Hogan issued the sentence after a two-hour hearing during which Camp, his son, a former law partner, a former law clerk, the former district court clerk and the former chairman of Georgia's Republican Party made personal pleas for leniency and a probated sentence that would allow Camp to avoid incarceration....

In converting Camp's felony to a misdemeanor, Hogan has allowed the former judge to avoid the loss of a host of privileges that go with a felony, such as the right to vote, the right to hold public office, the right to secure a business license and the right to carry a gun....

Camp pleaded guilty last November, a little more than a month after he was arrested by the FBI following an illegal drug buy that he and the dancer made from an undercover agent.   Camp pleaded guilty to two misdemeanors — illegally possessing cocaine, marijuana and the painkiller Roxicodone (a synthetic form of heroin) and the misdemeanor theft of a government-issued laptop computer that Camp had given to the stripper.  But Camp also pleaded guilty to felony aiding and abetting a person he knew to be a drug felon in the unlawful possession of illegal drugs. The stripper, an FBI informant, had been convicted of using telephone communications while trafficking in methamphetamine, according to federal prosecutors.  Camp resigned from the bench and has also surrendered his law license.

The felony charge carried a maximum two-year sentence and a $100,000 fine. Both misdemeanor offenses carry maximum one-year sentences and $100,000 fines.  Hogan said that the pre-sentence report conducted by the federal probation officer assigned to Hogan's court recommended a sentence from 15 days to six months.

But last week Camp's lawyers filed a sentencing memorandum claiming the confidential pre-sentence report, which is not available to the public, was in error. They asserted that Camp should not be subject to any mandatory minimum prison term and that his sentence should not be influenced by the prior criminal history of the dancer for whom he had helped to acquire illegal drugs for their joint use....

That argument prompted Hogan to convert the felony charge to a misdemeanor, a move he discussed in chambers with Camp's lawyers and lawyers from the Justice Department's Public Integrity Section.  The meeting delayed the start of the sentencing hearing by 35 minutes, which Hogan explained when he took the bench.... Hogan said his interpretation of case law is that Camp's sentence could not be enhanced by the prior criminal record of the dancer with whom he had purchased and used illegal drugs, and, as such, his felony plea converted to a misdemeanor.

Prior to Hogan's ruling, DOJ attorney Deborah Sue Mayer asked the judge to release the government from the terms of its plea agreement with Camp, which she said would give the Justice Department the option of bringing additional criminal charges against Camp. But Hogan said that he did not believe the issues that led him to toss the felony count constituted a breach of Camp's plea.

Later in the hearing, Mayer reiterated her position that Camp's plea agreement was breached.  In asking for an unspecified prison term that she said reflected the seriousness of Camp's offenses, she noted that Hogan ought to consider the entirety of Camp's actions, not just the charges to which he entered guilty pleas. "He engaged in repeated criminal conduct over a period of four months," she said. "It was not just a one-time thing.  It was not just an exercise in poor judgment."

That conduct included asking a federal marshal to run a criminal background check for personal reasons, which is a misdemeanor, Mayer said. It also included the "repeated" possession and use of illegal drugs including cocaine and synthetic heroin that she said Camp "snorted like a street drug," and the lie he told in order to secure a new laptop so that he could give a government-issued computer to the stripper from whom he sought sexual favors. Camp, she said, also knew "full well" that the stripper had been convicted of a drug trafficking crime, which Mayer said the former judge attempted to minimize in an effort to help her find new employment.... 

Mayer added, Camp brought two guns to a drug deal, one of which he had in his pocket while the dancer was by his side buying illegal drugs from the undercover agent.  When Camp was arrested, one of the guns was visible in the front passenger seat of his car, with the trigger cocked and a chambered round, but Mayer said the government did not charge Camp with a federal firearm offense because it was not linked to a crime of violence or a drug trafficking offense."

Based on this description of events, it sounds like Camp may have been able to raise an Apprendi/Blakely issue in order to avoid a felony conviction.  If that's right, it provides yet another remarkable facet to a remarkable case that, in my view, does not reflect very well on how this ugly matter was handled by the local federal prosecutors. [UPDATE: A commentor rightly noted that the local USA's office recused itself in this case, so its the feds from Main Justice brought in to prosecute who seem to have the egg on their face in light of how poorly this case appears to have been handled].

Related prior posts (which have generated lots of notable comments):

• "Federal judge charged with buying drugs from stripper" 
• Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities
• Sentencing memo for former federal judge urges probation and stresses mental health issues
• You be the judge: what federal sentence would you impose on former judge Jack Camp?
• "Ex-judge Camp sentenced to 30 days in prison"

Thoughtful thoughts on Judge Weinstein's work in Polizzi

Over at Volokh, Orin Kerr has this extended discussion of Judge Weinstein's very extended Polizzi opinion (basics here and here), which reverses a conviction in a child porn case on debatable legal grounds.  Here is the start of Orin's analysis:

Polizzi reads less like a judicial decision than a 266-page book of opinion essays. If I understand the reasoning of the opinion — not a small challenge with an opinion written in such a complex way over hundreds of pages — the basic argument is this: Recent Supreme Court decisions interpreting the Sixth Amendment like Blakely v. Washington suggest that the current Supreme Court greatly values the role of the jury, and as a result older precedents saying that the jury can't hear about sentences are inconsistent with the spirit of the Supreme Court's new cases and are no longer binding precedent.

Related posts on Polizzi:

• Judge Weinstein makes notable headlines with notable jury-based ruling
• Judge Weinstein's magnum opus on jury rights

Judge Weinstein's magnum opus on jury rights

As noted in this recent post, famed EDNY Judge Jack Weinstein this week found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case.  Judge Weinstein's full opinion in US v. Polizzi, No. No. 06-CR-22 (EDNY April 1, 2008) is available here, and it runs a total of 288(!) pages (though the last 50 are detailed appendices).  Here is how this amazing work of judicial exposition concludes:

A. Constitutionality of Statute

Defendant’s motion to declare the statute unconstitutional as written, charged, and applied is denied because of ruling authority. See Part III.A, supra.  Upon appeal, constitutionality and the language of the statute should be reconsidered for the reasons stated in Part III.A, supra.  The issue of unconstitutionality applies to both the receiving and possessing counts. Id. If the statute is ruled unconstitutional, the case should be dismissed.

B. New Trial as to Counts One Through Twelve

For the reasons stated in Part IV, supra - - failure to exercise the court’s discretion to notify the jury of the mandatory minimum sentence - - the verdict is set aside on Counts One through Twelve, charging receiving child pornography. A new trial on those counts is granted, unless the statute as to those counts in declared unconstitutional on appeal.

Brand new year, same old Blakely

Though the cases are now dated 2005, the lower court Blakely rulings of the new year look a lot like what we saw the last few months of 2004.  Notably, in just the first week of 2005, there were nearly 50 cases discussing or noting Blakely coming on-line from an array of federal and state courts. (California, not surprisingly, continues to set the Blakely caselaw pace with over a dozen Blakely on-line rulings for the week alone).

Based on an all-too-quick-review, the most notable or consequential Blakely cases from last week — besides the Idaho Supreme Court ruling discussed here and developments in Alaska and Ohio and Washington detailed here and here — appear to be:

• State v. Timmons, 2005 Ariz. App. LEXIS 1 (Jan. 7, 2005) (vacating a sentencing on Blakely grounds while covering a number of important Blakely issues)

• State v. Noe, 2005 Tenn. Crim. App. LEXIS 7 (Jan. 7, 2005) (reducing a sentence from six years to five years, over a dissent, on Blakely grounds)

• US v. Swanson, 2005 WL 30507 (7th Cir. Jan. 07, 2005) (ordering resentencing on non-Blakely grounds, though also asserting that the "decisions in Blakely, Booker, and Fanfan, however do not affect the manner in which findings of restitution or forfeiture amounts must be made")

A (too?) clever Blakely plea attempt

With many thanks to a reader for the tip, I can note this fascinating article from Chicago discussing a federal white-collar offender's attempt to plea guilty without "Blakely" enhancements.  As the article details, prosecutors have urged US District Judge Elaine Bucklo to reject the defendant's guilty plea as "fluff."

Highlights of a remarkable USSC document

The US Sentencing Commission's recently posted "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here; discussed here) is a remarkable document which, though "preliminary" and "anecdotal," paints a vivid and fascinating picture of federal sentencing in the post-Blakely world.  I could do a dozen posts about the memo; every section and nearly every sentence contributes new insights to an understanding of the current state of federal sentencing.   For now, I will be content to urge evryone to read the document and provide just a few highlights from the text of the memo here:

Continuances. Several lines of evidence suggest that Blakely has led to a delay in final sentencing in a large portion of cases. A decline in sentencings is reflected in the decrease in case documentation received by the Commission.... Interviews in the 7th and 9th circuits confirm that continuances have generally increased in courts holding that Blakely applies to the federal guidelines, although there is considerable variation from district to district....  Some court administrators are concerned that, after a slow summer, the backlog of cases will strain resources when the cases start moving.

Sentencing post-Blakely. Courts have identified a limited range of possible responses to the Blakely decision, as outlined in the decision tree attached to this report.... Among courts that have held that Blakely applies to the federal guidelines, the most common response appears to be to treat the guidelines as advisory.

Alternative sentencing. Interviewees in our survey in several districts also reported that judges were not announcing alternative sentences and one judge said he had tried the practice but abandoned it. The Blakely coding project has found documentary evidence of alternative sentencing in just 4.9 percent of the cases coded as of November 1.

Case and factor severability. Documentary data are not yet sufficient to quantify the portion of cases adopting any particular approach to severability. Interviews in the 7th and 9th circuits suggest that most judges are holding the guidelines invalid only in cases with offending adjustments. Further, there is evidence that many judges, even in the 9th circuit, resist severing the offending provisions and applying the guidelines without aggravating adjustments.

Sentencing "windfalls." Interviews with participants in the 7th and 9th circuits suggest that sentencing windfalls due to non-application of aggravating adjustments have occurred but are relatively rare. Windfalls appear to be largely limited to cases that plead guilty pre-Blakely, because defendants now stipulate to at least some of the aggravating adjustment or waive their Blakely rights.

A belated information present from the USSC

In my testimony last month to the US Sentencing Commission, I urged the USSC to examine post-Blakely developments, especially in the Seventh and Ninth Circuits where Blakely has been deemed applicable to the federal guidelines, to help assess whether a "quick legislative fix" would be truly essential after a possible ruling in Booker and Fanfan applying Blakely to the federal system.  Thus, I am very pleased to see that the USSC now has posted on its Booker/Fanfan page a document entitled "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here).

Here is how the USSC describes this fascinating new document on its Booker/Fanfan page:

While awaiting the submission and analysis of empirical data on the effect of the Blakely decision, the Commission staff conducted a survey of 40 sample subjects (judges, defense counsel, and probation officers) in the Seventh and Ninth Circuits to attempt to determine, through anecdotal means, how those jurisdictions are handling their criminal caseloads.

Though this document is, as stressed by the USSC, "preliminary" and "anecdotal" and only includes cases through October, it is still an extremely important and interesting (partial) report on the post-Blakely state of federal sentencing.  Along with this week's WSJ article on federal court doings, this document is a must read for everyone interested in assessing both the present and possible future of federal sentencing.

In subsequent posts over the next few days, I will highlight some of the most essential elements of this memo and also reflect on what it suggests for those planning for a post-Booker world.  For now, let me just lavish the USSC with praise for making this document publically available.  Perhaps this good deed will bring good karma for USSC Chair Judge Hinojosa's beloved Texas Longhorns (who will need to do a lot better against a Big Ten team in the Rose Bowl than another Big 12 team did against my Buckeyes in the Alamo Bowl last night).

Gov. Rowland's interesting plea agreement

With thanks to Professor Ellen Podgor of White Collar Crime Prof Blog, I can now provide a link here to former Connecticut Governor John Rowland's plea agreement.  I pondered in this post whether the agreement included a Blakely waiver and whether it anticipated a decision in Booker and Fanfan.  Not surprisingly, these issues are well covered on page 3 of the 11-page agreement.

The entire Rowland plea agreement is a fascinating read.  It includes provisions calculating the guideline sentencing range for Rowland of 15-21 months of imprisonment.  The last three pages of the agreement constitutes a "Stipulation of Offense Conduct," and it covers the facts which support these guideline calculations.  Also of interest is a passage on Page 5 of the agreement that contemplates Rowland will argue for a downward departure from the guideline range of 15-21 months on various grounds related to his minor role in the offense and his professional and community contributions.

Interesting Blakely perspectives

Two interesting newspapers stories this morning on the Blakely beat provide details about both the system-wide and case-specific impact of the decision:

• This article from Alaska provides a system-wide perspective on Blakely.  It quotes a state public defender who explains, within a story about increased December state caseloads, that his office has been "appointed to represent 75 people in a sort of post-conviction review regarding the legality of sentence under the Blakely."  This article reinforces a point spotlighted here that the administrative burdens created by Blakely are consequential wholly apart from the decision's substantive impact on sentencing laws and outcomes.

• This article from New York provides a case-specific perspective on Blakely. The piece details the federal sentencing of a father and son for their roles in directing a massive asbestos cleanup scam.  The long sentences (19 years for the father, 25 years for the son) and the case's interesting facts make the story a fascinating read.  The article notes that the defendants' sentences were increased considerably based on judicial fact-finding and that Blakely will be a chief issue raised on appeal.

The morning's sentencing news

It is another morning with newspapers filled with interesting stories on both capital and non-capital sentencing topics.  Here's a sample of some of the highlights:

• On the death penalty front, the big news from Virginia, as detailed here and here, comes from state Attorney General Jerry Kilgore's proposed legislation to make it easier for prosecutors to seek the death penalty in cases like the Washington-area sniper killings.  In this editorial, the Roanoke Times is already criticizing the AG for "playing politics with life and death."

• In other capital developments up the coast, this editorial from The Republican in Massachusetts advocates that Connecticut not execute serial killer Michael Ross even though there are no doubts about his guilt.  (Background on the Ross case can be found here and here.)

• From the Blakely desk, this story from Pittsburgh details the Blakely claims being made by a retired state trooper appealing his 1989 homicide sentence.  And this story from St. Louis details that St. Louis Rams player Leonard Little has failed in his attempt, noted previously here, to use Blakely to get his pending felony drunken driving charge dismissed.

Hacking into the world of Blakely

Making headlines and getting the attention of the blogsphere today are the sentencings of the defendants who last year hacked into the national computer system of Lowe's hardware stores and tried to steal customers' credit card information.

This AP story notes that the government is calling the nine-year sentence given to Brian Salcedo, who pleaded guilty in August to conspiracy and other hacking charges, "the longest prison term ever handed down in a computer crime case in the United States."  But Professor Orin Kerr at The Volokh Conspiracy explains here his sense "that there really isn't anything interesting about this case."

I basically concur with Orin's first take on the case, though I do think the plot is starting to thicken.  First, this follow-up AP story indicates that Salcedo's co-defendant, Adam Botbyl, today received a sentence of only 26 month.  Though I would need a lot more information to pass judgment, this prior story discussing the defendants' seemingly comparable roles in the offenses makes me wonder why Salcedo is getting a sentence four times longer than his co-conspirator.

Further, though not discussed in any of these news stories, I wonder about how Blakely fits into all of these developments.  The press reports indicate the plea deals were being put together just as the Blakely earthquake hit.  Of course, by late August, the Sixth Circuit had ruled in Koch (details here, commentary here) that Blakely should not apply to the federal sentencing guidelines unless and until the Supreme Court so held.  But that holding may be disrupted by Booker and Fanfan, and I cannot help but speculate about what kind of Blakely waivers might have been requested and secured by the government while negotiating the plea agreements in this case.

My waiting wish-list

With no decision today, I did not get my wish of an opinion in Booker and Fanfan as a Hanukkah present.  And, unless the Supreme Court surprises us with extra opinions this month, it also seems I wasted my time writing to Santa to ask for a Booker and Fanfan opinion.  But even though it appears we now must all wait until January for a sentencing present from the Supreme Court, other institutions can keep me in a holiday mood by working on this waiting wish-list of mine:

1.  I wish the US Sentencing Commission supplements the fascinating data it has collected here about post-Blakely federal case processing, which could provide a fuller picture of the state of federal sentencing now.

2.  I wish a few state Supreme Courts resolve pending Blakely appeals, in order to further define and refine the many post-Blakely legal questions that need to be resolved (see some background here).  My own perspectives on Blakely (reflected in articles here and here) have been greatly influenced by state court rulings, and the Supreme Court apparently needs all the help it can get.

3.  I wish a few state sentencing commissions (or even the offices of state Attorneys General) provide additional data and analysis on how Blakely is impacting state criminal justice systems.  We get snippets from briefs and news stories, but nothing compares to the systematic analysis that can be done by an effective sentencing commission (as Minnesota's commission has shown).

4. I wish the ABA and the ALI and the Constitution Project and all the other important groups working on sentencing reform can use this extra Booker-free time to gear up for what is likely to be a hectic January.  I was rooting for a decision from SCOTUS now so we might all have a few weeks to mentally process the decision before congressional re-writing of federal sentencing was realistically feasible.  Now I fear we could possibly get a Supreme Court decision and then new federal sentencing legislation in rushed succession in January.

5.  I wish the powers that be in college football could figure out how to create a playoff system.  This mysterious blog sensibly suggests here that I watch a lot of football to keep in good cheer and keep my mind off Booker and Fanfan.  But what really keeps me from being in good cheer is knowing that USSC Chair Judge Hinojosa's beloved Texas Longhorns will not get a chance to prove on the field that they might actually be the best team in college football.  I suppose if the Longhorns take their frustrations out on Michigan in the Rose Bowl, that should suffice for this Buckeye.

More Blakely news from the field

Two more interesting news reports about the post-Blakely worlds of state and federal sentencing:

• This article from Minnesota discusses a state sentencing in which, because of Blakely, "a separate sentencing hearing was conducted before the jury, and prosecutors successfully argued that [the defendant] should be given the maximum sentence under Minnesota's dangerous offender law."

• This article from Iowa discusses another federal sentencing which has been postponed awaiting a decision in Booker and Fanfan.  The article indicates that the defendant's appointed federal public defender has objected — apparently unsuccessfully — to all of the government's continuance requests.

More consequences while we wait for Booker and Fanfan

As detailed in this AP report, US District Judge Sylvia H. Rambo today allowed recently convicted Rite Aid executive Franklin Brown to remain free on bail pending appeal, at least until the Supreme Court decides Booker and Fanfan.  As article explains, "Brown was convicted last year of 10 criminal counts related to his tenure as the pharmacy chain's vice chairman and top lawyer [and] had been scheduled to turn himself in Dec. 13 to begin serving a 10-year prison term."  Here are more snippets from the story:

"The Blakely issues in this case are significant, and a definitive resolution of the matter could be forthcoming," Rambo wrote in a seven-page ruling.

Brown attorney Peter Goldberger said Monday his client was "relieved" to get news of Rambo's decision. "But in the short term. For now," Goldberger said.... "It's not a case where you can say, this side will win or that side will win, and that you'll know the minute the decision is handed out," he said.

Perhaps this means there may be one person rooting for the decisions in Booker and Fanfan to take a lot longer.  But I continue to hope that this week we finally get a decision from the Supreme Court.  As noted before, the Court has announced that opinions will be issued each of the next two days, and eventually I have to be right when predicting the decision is coming soon.

Post-Blakely data on the state of federal sentencing

Though we did not get an opinion form the Supreme Court, I will still consider today a huge day because the US Sentencing Commission has now posted, here on its Booker/Fanfan page, some fascinating preliminary data about post-Blakely case processing in the federal system, as well as a memo with a review of lower federal court opinions addressing Blakely.

The sentencing data, comprising three pretty charts and described as "Preliminary Comparison of Case Submissions July and August 2003 and 2004," can be accessed here; the memo, which is more of a database than a substantive memo, can be accessed here. 

I am looking forward to consuming and commenting on these documents later this evening.  For now I will just say huzzah and thanks to the USSC and its staff for becoming much more public and transparent on these issues at a very important time.

Another report about jury involvement in federal sentencing

With thanks to Marcia Oddi at the Indiana Law Blog for the tip, this article in Monday's Munster Times discusses a recent (apparently positive) experience with a "sentencing jury" in an Indiana federal district court.  Though specific details about the sentencing proceeding are sketchy, the article suggests that the jury in a high-profile public fraud, like the jury in the recently concluded Enron Nigerian barge case (details here and here), reached a compromise sentencing "verdict" on the facts.  Moreover, the article reinforces my suggestion here that a decision in Booker and Fanfan applying Blakely to the federal system might be positively perceived by the press and public as an appropriate vindication of the role of juries in the criminal justice system.

Interesting Blakely decisions from Maine

I recently came across two interesting federal Blakely rulings coming from the District of Maine (home, of course, of Fanfan).  These rulings reveal that cases are still moving along in one federal district.  However, a footnote in the Thomas opinion (discussed below) notes that, "although two judges in this district have concluded that the Blakely rationale reaches the Federal Sentencing Guidelines, this intra-district view is not unanimous."

In US v. Morehouse, 2004 WL 2668347 (D. Me. Nov. 22, 2004), District Judge Woodcock held that, because of Blakely, he could "not upwardly depart from guideline sentence range based on wrongful convictions of others for crimes defendant had committed," but he still could "consider those wrongful convictions in determining the sentence within the guideline range."

In Thomas v. US, 2004 WL 2674362 (D. Me. Nov. 19, 2004), Magistrate Judge Kravchuk recommends denying a defendant's federal habeas petition over claims that he was "sentenced under unconstitutional sentencing guidelines and his attorney was ineffective because he did not raise a challenge to the constitutionality of the guidelines."  The recommendation relies heavily on existing First Circuit holdings that Blakely has not (yet) clearly rendered the federal guidelines unconstitutional.

Interesting reports from the front lines

I have received a few interesting responses to my post here this morning, in which I speculated that a vast number of sentencings have been postponed until Booker and Fanfan are decided.  Specifically, I have heard from two "in the know" folks in two distinct districts (in different circuits) who report that the pending Booker and Fanfan have had little impact on the federal docket — that is, sentencing hearings are generally not being delayed in these districts while the rest of us wait for Booker and Fanfan to be resolved. 

Notably, according to these reports, though sentencings are going forward in these two districts, they are going forward in distinctly different ways under distinctly different understandings of the applicable federal sentencing rules and procedures.  These anecdotal reports, of course, just feed my now ravenous desire for post-Blakely federal sentencing data from the USSC.

I highly encourage readers to use the comments or to send me e-mails with additional reports from the field.

Blakely/Booker backup

I continue to be curious about — and eager to see data concerning — how many federal sentencings have been delayed awaiting a decision in Booker and Fanfan.  More anecdotal evidence suggesting many postponements can be found today in stories from Tennessee and Texas involving delayed judicial proceedings for two white-collar offenders pending the ruling in Booker and Fanfan.  (A noteworthy previous example can be found here.)

At the US Sentencing Commission hearing last week, I was given the impression that a very large number of the roughly 30,000 federal sentences that should have been handed down since Blakely have been postponed.  But I still have no sense of whether this means 1/4 or 1/2 or even 3/4 of all sentencings have been put on hold (and thus, as noted here, I will be thrilled when the USSC is able to make public the preliminary data it has collected concerning the post-Blakely state of federal sentencing).

Whatever the exact number, it seems clear that, after Booker and Fanfan are decided, the lower federal courts will have a huge backlog of postponed cases to process.  It will be interesting to watch if the Blakely backup has broad ripple effects next year on the administration of justice in the federal courts.

The Blakely costs and court crisis

This law.com article, tellingly titled "Courts on the Edge of Financial Crisis," documents a dire "funding crisis, unprecedented in the last two decades," now being experienced by the federal courts.  In the piece, insightful court scholar Arthur Hellman notes the potential impact of Blakely:

The Supreme Court's June decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), a state sentencing case, has increased the workload because it threw into doubt the constitutionality of the Federal Sentencing Guidelines. Courts and prosecutors have been scrambling to anticipate what the impact on sentencing will be.

"The one consequence of that is many sentencing determinations before the Supreme Court decision that would have been routine and non time-consuming are now requiring huge amounts of time and attention by judges, assistant U.S. attorneys and defense attorneys," said Hellman. "That pushes other cases further down the line.

"Even if the caseload had remained the same, when you have an upset like this, just the sheer amount of human resources the court system has to devote to a large class of cases increases," he explained. "Even with a steady budget that would be difficult."

This disconcerting article confirms a lot of what I heard when I had a chance to  speak last month with federal District Court Clerks and Executives (discussed here and here).  Put simply, the federal courts were overloaded and underfunded before Blakely, and the impact of Blakely (even if it does not ultimately get applied to the federal system) is to make a bad workload situation much worse.

Of course, at least in the criminal law arena, one should not lose sight of what might be called the federalism solution to this workload problem.  If more criminal prosecutions, especially local drug crimes, were simply left to the states, the caseload burdens in the federal courts would be somewhat alleviated (although then the states would bear even more of the brunt of our swelled criminal justice system).

Lots of morning sentencing news

The papers are filled with two sets of sentencing-related stories.  The Supreme Court's decision in Leocal v. Ashcroft — holding that DUI is not a "crime of violence" for which an immigrant can be subject to automatic deportation — is thoughtfully discussed in articles in the NY Times and LA Times. Both pieces suggest that the impact of this seemingly little decision could be very big; the NY Times article quotes Ira Kurzban, a prominent immigration lawyer in Miami, saying Leocal is "going to have an immediate and significant impact on a large number of cases."

The work of the Enron sentencing jury (detailed here) is also discussed widely, and this Houston Chronicle story covers the sentencing angle most effectively. In the article, one of the defense attorneys describes the Blakely-inspired sentencing phase of the trial as "exceedingly weird — pure guesswork." An AP story here provides broader coverage.

UPDATE: With thanks to How Appealing, here is a Philadelphia Inquirer editorial entitled "Sentencing Guidelines: Court should fix a problem it created."

Enron sentencing jury is back

This just in: the novel advisory sentencing jury asked to decided a variety of sentencing-enhancing guideline issues in the Enron Nigerian barge case (background here) has returned its verdict. You can get all the details in this Houston Chronicle article, which explains that the jury determined:

• The sham produced $13 million in loss (not as much as the $43 million argued by the government or as little as the $120,000 suggested by the defense)
• All three defendants broke a private trust with Merrill Lynch.
• Two defendants had managerial or leadership roles and used more than minimal planning in the deal.
• One defendant did not substantially interfere with justice and did not use special skills.

Juries at work.  How interesting.  I cannot help but conclude (especially while sitting in the ivory tower) that this case shows that, even in complicated fraud settings, "Blakely-izing" the federal guidelines is not really that hard.

Not yet for Booker and Fanfan

The speculation that today was the big day proved inaccurate, as now two reliable sources report that the US Supreme Court did not issue its opinions in Booker and Fanfan today. 

Conforming Howard Bashman's genius here, it appears according to the SCOTUS Blog post here that the Court issued two relatively brief unanimous opinions today.  Interestingly, today's opinions were authored by Chief Justice Rehnquist and Justice O'Connor, which leads me to speculate that they are not writing for the Court in Booker and Fanfan (though that's hardly a surprising notion).

Sorry if I fueled unhealthy buzz that we might see the decisions today; I guess I am just too eager to see what the Court finally has to say.  Indeed, my efforts this morning to outline just some of the issues that confront the Court here is a reminder of how hard the decision is.  And the failure to get the opinion out quickly heightens my fear that we may see a fractured decision.  Stay tuned.

UPDATE: Chris Geidner at Law Dork deserves extra credit here for beating me to the inevitable Beckett reference.

Can sentencing jurors get the blue flu?

I was hoping that we might have news from the Enron Nigerian barge sentencing jury (previously discussed here) before the sentencing stories are overtaken by a decision in Booker and Fanfan.  But the rumor mill is starting to "confirm" my speculation here that tomorrow's opinion from SCOTUS will be Booker and Fanfan, and now this report from Houston indicates that an ill juror put a halt to the jury's advisory sentencing deliberations in the Enron Nigerian barge.  Though the work of this "sentencing jury" is scheduled to resume tomorrow, I wonder if a decision in Booker and Fanfan could change the face of this case yet again.

Fascinating Blakely reports on Enron trial

Earlier this week I asked here for readers to report on any first-hand experiences (good or bad) with juries doing sentencing factfinding.  There are some great insights shared in the comments to that post, and I have also received other direct feedback from judges and lawyers that reinforces my general sense that having juries involved in sentencing factfinding has not proved too cumbersome or problematic.

Additional news and insights on this front come from the on-going trial of a group of Enron defendants in the so-called Nigerian barge case.  (The Houston Chronicle has this impressive site with background on the case and all its reporting.)  Despite the fact that the Fifth Circuit has held that Blakely is inapplicable to the federal guidelines (details here), the government sought, and US District Judge Ewing Werlein has arranged for (over defense objections), jury factfinding on seven aggravating factors about the conspiracy and fraud.

The Houston Chronicle has already run three fascinating articles about this Blakely-inspired sentencing proceeding: Ruse cost Enron investors $43 million - or $120,000; Jurors deliberate unorthodox Enron sentencing; and Jury to continue deliberations on sentences of 3.  All three articles are must-reads for anyone interested in a case-specific perspective on how Blakely could play out "on the ground."

Though I cannot readily summarize all the rich details in these great articles, I must note a few interesting facts: (1) of the five convicted defendants, two waived a jury sentencing trial and apparently agreed to judicial factfinding (though the article does not note what burden of proof will apply); (2) it appears that the sentencing phase took only two days after a seven-week guilt phase; (3) through competing expert witnesses (including Dan Fischel, a University of Chicago law professor who testified for the defense), the dispute over the amount of the loss in the offense is enormous, with the government claiming a loss of $43 million and the defense claiming a loss of no more than $120,000; (4) in addition to loss, the jury is also considering facts relating to role in the offense, abuse of trust, more than minimal planning and related issues; and (5) the attorneys spoke directly and diversely to the jury about their sentencing role:

Tom Hagemann, attorney for [defendant] Bayly, told the jury their decisions could alter "whether Mr. Bayly goes to prison for 15 years or not at all."

But prosecutor John Hemann told jurors that it is the judge, not the jury , that will decide the punishments and they are to consider the facts before them and not be swayed by attempts to garner sympathy.

Experiences with juries doing sentencing factfinding

Though US District Judge Stewart Dalzell in US v. Cropper, 2004 U.S. Dist. LEXIS 21949 (E.D. Pa. Nov. 2, 2004), recently refused to allow the government to submit sentencing factors to a jury (as detailed here), there are anecdotal report of juries involved in sentencing factfinding in many courtrooms. For example, Ellen S. Podgor at the White Collar Crime Prof Blog reports here on the on-going Enron-related criminal trial where five convicted defendants "are back in court today for the jury to hear evidence for the purpose of sentencing." And Michael Ausbrook at INCourts reports here on reports of a state judge presiding "over a real, live, Indiana, non-capital sentencing jury --apparently without objection from the defense."

I would be grateful if readers might be inclined to utilize the comments to report on any first-hand experiences (good or bad) with juries doing sentencing factfinding. I surmise from various anecdotal reports that having juries involved in this factfinding has not proved too cumbersome or problematic, but I doubt I am getting a complete picture from reading the occasional caselaw and newspaper accounts.

Blakely Ohio legal news

While Ohio legal wrangling over election law is already making headlines, and occupying the Supreme Court, there is also an interesting Blakely story in today's Cincinnati Post. This article details that four white-collar offenders are hoping a ruling in Booker and Fanfan might pave the road to reduced sentences, and it discusses in some depth the procedural posture of their cases as everyone awaits a Supreme Court ruling.

More on Blakely-ized indictments and retroactivity

Yesterday's Blakely reports from the federal district courts included noteworthy developments and rulings on Blakely-ized indictments here and Blakely's (non-)retroactivity here. In the course of trying to "close the book" on this week's developments, I noticed two more cases on these topics decided recently that only of late showed up on Westlaw.

In US v. Jamison, 2004 WL 2385003 (W.D. Wis. Oct. 21, 2004), Magistrate Judge Crocker filed a thoughtful report recommending that the court deny motions by the defendant to strike sentencing allegation from the indictment. Along the way, Judge Crocker explains that "pragmatically, unless the court stays all of its pending criminal trials, the most risk-free course of action [while the law is unsettled] is to continue the current practice of allowing sentencing allegations in the indictment and holding a bifurcated sentencing hearing."

In US v. Falodun, 2004 WL 2397612 (D. Minn. Oct. 25, 2004), Judge Montgomery joined the growing list of district judges to rule on the record that Blakely is not to be applied retroactively: "Even were Blakely's holding to apply to the USSG, this Court concludes that Blakely would not apply retroactively to matters on collateral review." However, as some earlier comments have flagged here, this ruling is among many that do not fully grapple with the impact of the burden of proof on the overall retroactivity analysis.

Careful retroactivity analysis from WD of Virginia

Today in Lilly v. US, 1:04CV00079 (W.D. Va. Oct. 28, 2004), Chief United States District Judge James P. Jones issued a thoughtful opinion (available here) dealing with Blakely retroactivity issues. Chief Judge Jones notes that the Fourth Circuit's Hammoud decision means that, for the time being, "sentences under the USSG are not impacted by Blakely in this circuit." He goes on to explain that "even if Blakely is held applicable to the USSG, it does not apply retroactively to Lilly's case."

Walking effectively and clearly through all the steps of Teague, Chief Judge Jones holds that (1) Blakely is "a new rule for purposes of determining retroactivity," (2) that "Blakely announced a new procedural rule" because "Blakely does not alter the elements of the offense but merely requires that a jury find beyond a reasonable doubt any facts that the USSG requires in order to enhance a sentence, and (3) "Blakely is a new procedural rule that does not meet the requirement of being a watershed rule of criminal procedure."

The Lilly opinion also addresses a number of related issues concerning the posture and possibilities of different claims for retroactive application of Blakely. Though all the retroactivity analysis in Lilly is, in a sense, dicta, the decision provides a terrific road map through the complicated terrain of retroactivity. Though I am sure defendants with final convictions will not like where the destination ends, everyone working through these complicated issues should benefit from the mapping done in Lilly.

Indicting up Gotti

With organized crime infiltrating pop culture — with shows ranging from HBO's The Sopranos to A&E's Growing up Gotti — we knew it would only be a matter of time before organized crime infiltrated the world of Blakely. And, earlier this week, through US v. Gotti, 2004 WL 2389755 (S.D.N.Y. Oct. 26, 2004), US District Judge Richard Conway Casey issued an interesting Blakely decision in a case involving the Gambino Organized Crime Family.

The interesting factual backdrop for the Gotti decision should not overshadow Judge Casey's thoughtful and cautious ruling in response to the defendant's claims that sentencing allegations in a Blakely-ized indictment "are mere surplusage that may be prejudicial to Defendants at trial." In a well-reasoned opinion that merits a full read, Judge Casey highlights that the "confluence of Booker and Fanfan looming on the horizon and Mincey controlling the present left the Government in a quandary in this case and in others." Judge Casey thereafter explains why most of the facts, of the added allegations do not constitute surplusage, any then adroitly avoids a definitive ruling on matters of trial procedure for proving those allegations. Here's the court's summary:

For the foregoing reasons, Defendants' motion to strike the sentencing allegations in the eighth superseding indictment is GRANTED IN PART and DENIED IN PART. The term "Sentencing Allegations" and the citations to the Sentencing Guidelines are irrelevant and may be prejudicial; therefore, they shall be struck. The factual allegations, however, shall remain. The Court reserves decision on whether the sentencing enhancements will be presented to the jury, and if so, whether the Court will hold a separate sentencing proceeding. These issues may be resolved by the Supreme Court's forthcoming decision in Booker and Fanfan.

UPDATE: An attorney from Virginia wrote in to report that "on October 26, Judge Gerald Bruce Lee (US District Court, ED of Virginia) ruled from the bench in US v. Johnson that sentencing factors must be stricken from an indictment as surplusage under Rule 7(d)." Recall that the Fourth Circuit, in US v. Hammoud, 378 F.3d 426 (4th Cir. 2004), upheld the constitutionality of the sentencing guidelines, and counsel argued that the government, after having "gotten what it asked for in Hammoud, ... was now asking lower courts to disregard its holding by seeking to create a new jury-sentencing regime in case they turn out to be wrong. The Disitrct Court agreed that Hammoud required it to reject this attempt. The defendant preserved the right to challenge the guidelines under under Blakely at sentencing in the event of a conviction."

Living with Blakely and Ameline

Early last week I asked here about what the federal sentencing world was like in the Ninth Circuit, which as a result of the decision in Ameline is the one jurisdiction having to deal directly Blakely-ized guidelines. Interestingly, one district court clerk indicated in the comments that "we are not having much trouble adjusting to the post Ameline world.... Our court conducts 3 sentencing proceedings each week and I would estimate that a contested Blakely issue only arises once a month at the most."

But this article in the LA Times paints a much different picture of life "on the ground" in the Ninth Circuit. The article's headline asserts that Blakely and Ameline have caused "confusion for federal jurists and prosecutors," and it portrays the state of federal sentencing in Los Angeles as chaotic. One especially interest section of the article details a dispute over efforts to secure Blakely waivers in LA:

[Chief Assistant US Attorney George] Cardona said ... that more than 97% of all criminal cases brought by his office end in guilty pleas. Accordingly, the U.S. attorney's office has adopted a policy of including so-called Blakely waivers in proposed plea agreements. By signing such a waiver, a defendant agrees to be sentenced under the old guidelines that are now under a cloud.

Maria E. Stratton, chief federal public defender in Los Angeles, has raised legal and ethical objections to the waivers. "If the guidelines are unconstitutional, they are unconstitutional, and our clients cannot and should not be sentenced under them," she wrote to top brass at the U.S. attorney's office.

Stratton added that her office would refuse to enter into any Blakely waivers, except in cases where the maximum punishment would fall between zero to six months in custody. She said she would consider authorizing an exception only under extraordinary circumstances. "I believe this response to the waivers proposed by your office is the ethical way to represent our clients and constitutes effective assistance of counsel," she said.

Blakely, mandatory minimums and the safety valve

In yet another interesting district court ruling from Utah, US District Judge J. Thomas Greene in US v. Aguilar Guilardo Parra, 2004 U.S. Dist. LEXIS 21133 (Oct. 20, 2004), thoughtfully explores the impact of Blakely in the application of certain mandatory minimums and the so-called "Safety Valve" provision of USSG § 5C1.2 and 18 USC § 3553(f). Judge Greene explains that "Blakely does not require jury involvement in connection with any increase of a sentence under the Guidelines where such increase results from prior conviction(s) [and] Blakely does not apply to any action by the court which would decrease rather than increase a sentence," and consequently "Blakely is not implicated and does not apply to sentencing issues in this case."

The decision in Aguilar Guilardo Parra is both cautious and contained in its analysis, but it merits a read for its thoughtful review of the scope of Blakely and Judge Greene's determination that he can make needed factual findings under the Safety Valve without regard to Blakely. In addition, Judge Greene's thoughtful non-Blakely discussion of the Safety Valve and of the acceptance of responsibility guideline are noteworthy.

A window on waiver

I have heard interesting and diverse anecdotal stories about when and how defendants are expressly waiving their Blakely rights, and I get the sense that Blakely waivers are quite common and quite varied in courts nationwide. A decision earlier this week from Maine (which just came on-line) provides a window on waiver in federal district court. Though the ruling of US District Judge John Woodcock in US v. Roper, 2004 U.S. Dist. LEXIS 20957 (D. Maine Oct. 19, 2004), does not break significant jurisprudential ground, it does reveal some of the new waiver dynamics that have arisen in the wake of Blakely.

Double whammy through double jeopardy

Today in US v. Kassab, CR 03-407-RE (D. Or. Oct. 21, 2004), which can be downloaded below, US District Judge James A. Redden rejected a government's motion to empanel a sentencing jury. In Kassab, the defendant pled guilty before Blakely was decided to one count of possession and distribution of pseudoephedrine. While sentencing was pending, the Ninth Circuit decided Blakely was applicable to the federal guidelines in Ameline, and the government in turn filed "a request for a sentencing jury in this case to determine the amount of pseudoephedrine for which defendant should be held responsible at sentencing."

Relying heavily on the Ninth Circuit's post-Ameline decision in US v. Patterson, 381 F.3d 859 (9th Cir. August 20, 2004), Judge Redden refused the government's request:

In this case, in order to impanel a sentencing jury on the issue of amount of pseudoephedrine, this court necessarily would have to vacate, over defendant's objections, his plea to an unspecified amount of pseudoephedrine. Under Patterson, this court is not permitted to vacate the plea in these circumstances. Further, based on the Ninth Circuit's rationale in Patterson, this court concludes that because initial jeopardy attached when the court accepted defendant's guilty plea to an unspecified amount of substance, double jeopardy would attach to a subsequent jury determination of the amount of substance involved, in violation of defendant's rights under the Double Jeopardy Clause of the Fifth Amendment. Defendant's guilty plea established only that he admitted to possession and distribution of an unspecified amount of pseudoephedrine, and that is the basis upon which he will be sentenced.

In sum, when this court accepted defendant's plea to an unspecified amount of pseudoephedrine, the government lost the opportunity to prove to a sentencing jury that defendant was responsible for a specified amount of the substance. This is a situation like Patterson where intervening changes in the law have resulted in the government losing, through no fault of its own, the opportunity to argue and prove the amount of substance at issue. Even though this arguably could result in a windfall to the defendant and prejudice to the government, the Fifth Amendment does not permit the defendant to be tried twice for the same offense.

Download kassab_double_jeopardy_opinion.pdf

Judge Bataillon speaks on Blakely-ized indictments

Regular readers know that Nebraska US District Judge Joseph Bataillon has issued a number of important opinions in the post-Blakely world (as detailed in posts here and here). Now, in US v. Benitez-Hernandez, 8:04CR317 (D. Neb. Oct. 19, 2004), Judge Bataillon has entered a noteworthy order rejecting a defendant's motion to dismiss a Blakely-ized indictment "in its entirety or to strike the 'additional factual findings' pled in the indictment." Here are some highlights from an opinion that can be downloaded below:

This court has held that it will continue to sentence under the guidelines to the extent that factors increasing the "maximum," as it is defined in Blakely, are charged in the indictment and either admitted or submitted to a jury (or to the court if a jury is properly waived) under the standard of proof beyond a reasonable doubt. United States v. Terrell, No. 04-CR-24, 2004 WL 1661018 (D. Neb. July 22, 2004). The indictment herein is the result of the government’s attempted compliance with Blakely. The additional allegations, if found by a jury beyond a reasonable doubt, would support a guideline sentencing enhancement.

Defendant challenges the indictment, contending the "additional factual finding" set out in the indictment is not a crime and that his prosecution for conduct that does not proscribe any criminal statute violates his Fifth and Sixth Amendment right to notice of conduct constituting a criminal offense and right to be informed of the nature and cause of the accusation against him. He further asserts that the Fifth Amendment Grand Jury Clause permits indictment only for infamous crimes, contending that sentencing enhancements promulgated by the Sentencing Commission are not crimes. Last, he contends that this court lacks jurisdiction over charges that do not constitute federal crimes.

The court finds defendant’s contentions have no merit..... The court finds no defect in the indictment. The government may seek to enhance defendant’s sentence under the guidelines with proof beyond a reasonable doubt of the additional fact it alleges. That fact then becomes the functional equivalent of an element of the crime that carries the enhanced penalty. The court finds the indictment fairly apprises the defendant of the elements of the crime, as enhanced, and the nature of the charge against him. Because the guideline provisions have the force of law, conduct that increases a penalty under the guidelines, together with proof of other essential elements, comprises an enhanced crime. Although reference to a guideline section would be helpful and appropriate, courts and practitioners have sufficient familiarity with the guidelines to ascertain the statutory source of the alleged enhancing fact. See Fed. R. Crim. P. 7(c)(3) ("unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation's omission is a ground to dismiss the indictment.").

Download Benitez.pdf

More Blakely cases move along

In this post here I wondered about whether and how federal cases are being processed while everyone awaits a decision in Booker and Fanfan. Though I would still appreciate additional feedback from readers in the comments, the newspapers help fill in the picture.

Specifically, here is an article from Montana detailing a sentencing decision by US District Judge Richard Cebull which copes with Blakely, and here is an article concerning a fraud case in California in which it is reported that, following a guilty verdict, Chief U.S. District Judge Vaughn Walker "is overseeing a second set of deliberations during which the jury will determine factors to be used in sentencing."

Seeking news (and data) from the federal sentencing courts

I am heading out the door for this great conference, and may not be back on-line for a while. While I am gone, I wonder if readers working in the federal criminal justice system might provide a status report on whether and how federal cases are being processed while everyone awaits a decision in Booker and Fanfan.

Today marks 16 weeks since Blakely was handed down. Operating at its usual pace of 1200 sentencings per week, this means that nearly 20,000 federal sentences should have been imposed since June 24, 2004. I have heard from various sources that sentencings have completely stopped in many federal courtrooms, but I also am certain that some cases continue to move through the pipeline. I wonder if the USSC or the AO or DOJ or anyone else has a real sense of the current case flow.

Evidence of the flow of cases continuing can be found in various places. For example, this article from Maine discusses the recent sentencing of a federal gun crime by US District Judge John Woodcock. The article interestingly notes that the defendant was allowed to plead to a four-year sentence, though Judge Woodcock apparently would have liked to impose a longer sentence and thought a longer sentence would have been in the cards pre-Blakely.

Relatedly, some federal case decisions recently appearing on Lexis (and helpfully collected by the folks at USSGuide) provide additional insights into what is transpiring "on the ground." For example, in US V. Banton, 2004 U.S. Dist. LEXIS 20401 (E.D.N.Y. Oct. 12, 2004), we get a glimpe into the work of Judge Weinstein and his commitment to giving Blakely factors to juries. In Banton, Judge Weinstein had the jury consider the facts for a "role-in-the-offense" enhancement, and he tells the jury that "even without enhancement defendant faces a very serious sentence." Here's how the case concludes: "The jury determined that with respect to each count, the amount of cocaine was more than 500 grams but less than 2000 grams, and that the defendant was an "organizer," "leader," "manager," or "supervisor," and thus eligible for a role enhancement under the guidelines. Defendant's objection to this two stage trial is overruled."

Moving to the front-end of federal criminal cases, we also have an interesting decision in US v. Jardine, 2004 U.S. Dist. LEXIS 20414 (E.D. Pa. Oct. 8, 2004), which addresses efforts by the government to cover all its Blakely bases though amended indictments. As detailed below, US District Judge Berle M. Schiller did not think much of the government's efforts:

In sum, this Court will not countenance the Government's attempt to leave irrelevant and prejudicial information in the Indictment "as a protective measure" "in anticipation" of pending Supreme Court cases, on the assumption that Booker and Fanfan will be decided in a certain way. It has been said that "the wheels of justice grind slowly," but the Government would prefer a dead stop....

[T]his Court notes that the Government has conducted its prosecution of this case in a piecemeal fashion. As set forth above, the charging instruments have included an Information against Robert Jardin, an Indictment against Robert Jardin and Bruce Jardine, a Superseding Indictment against those two, a second Superseding Indictment to incorporate the "Notice of Additional Factors," and now a Third
Superseding Indictment adding Dennis Jardine. All the while, though, the Government knew of all three Jardine brothers, and knew at least the broad outlines of their involvement in the alleged crimes.

This kind of inefficiency seemingly is the result of bureaucratic case management by officials in Washington, D.C. Perhaps these problems could have been avoided if the United States Attorney's office in the Eastern District of Pennsylvania was given appropriate authority. The Government is admonished that such confusion and indecisiveness is to be avoided.

More fun(fun) from judge who decided Fanfan

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

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

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

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

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

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

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

Minnesota's Long-Term Report

Right on time, the Minnesota Sentencing Guidelines Commission has followed up the short-term recommendations it made to Minnesota Governor Tim Pawlenty in response to Blakely (available here with commentary here and here) with a set of long-term recommendations on Blakely. And the link to the report now seems to be working; the report can be accesed here.

Though I will do substantive commentary on the new Minnesota report in subsequent posts, I want to start by complementing the Minnesota Sentencing Guidelines Commission for its thoughtful and balanced discussion of legal issues and also its obvious effort to present data in a public and accessible manner for lawyers, policy-makers, researchers and other interested observers. Sadly, though the federal sentencing system is in dire need of thoughtful and balanced data-driven analysis, the US Sentencing Commission has not been as effective in publically analyzing Blakely and its impact (as lamented here and here). Once again, the federal system would benefit from following Minnesota's lead.

Helpfully, this latest Minnesota SG Commission report includes at various points a discussion of Blakely that should be of great interest to persons working outside of The North Star State. Particularly insightful are some of these passages from the report's conclusion:

The level of chaos surrounding the Blakely decision is determined in part on the structure of an individual state’s sentencing system. When sentencing enhancements are an integral part of the sentencing structure, such as with the Federal Sentencing Guidelines, the impact is much more significant and difficult to remedy. To add to the confusion of the last three months, the two cases pending before the U.S. Supreme Court, Booker and Fanfan create even more apprehension as to what the outcome of those decisions may have on sentencing policies.

The Commission's analysis of the Blakely decision on sentencing in Minnesota indicates that there is limited impact. The sentencing guidelines remain constitutional, as do aggravated departures. The current procedure for imposing aggravated departures requires some modification to address the constitutional issues raised in Blakely, but the modifications are not extensive or far reaching, especially given the limited number of cases each year that receive aggravated departure sentences. In addition, there are a limited number of sentencing provisions or procedures that need to be modified or amended, but the majority of the modifications focus on language changes, amending forms or modifying trial procedures. The basic structure of the state's sentencing system remains intact and continues to provide for sentences that promote public safety and hold the defendant accountable, while ensuring the constitutional rights of the defendant are protected....

Although the recommendations presented in this report carry no legal force, they do provide a road map for the state with regard to sentencing policies and practices as both the state and federal courts work through the numerous issues surrounding the Blakely decision. If the state approaches the issues raised in the recent decision in a rational and methodical manner, the disruption and impact to the criminal justice system will be held to a tolerable level.

A judicious judicial "amicus"

I know I am biased, but it seems that judges who used to be law professors do the most amazing sentencing work these days. (Realize that many authors of some of the most interesting and important Blakely decisions — including Judges Cassell, Easterbrook, Gertner, Posner, Sutton, Wilkinson (and, of course, Justices Scalia and Breyer) — once did or still do teach at a law school. And this list likely overlooks some other great judges/professors who have written on Blakely.)

Continuing this trend, former Columbia Law Professor Gerard Lynch, who was a an intellectual leader in the field of sentencing even before becoming a judge, has followed up his work in US v. Emmenegger (available here with commentary here), with what is another humdinger in US v. Jackson, 2004 U.S. Dist. LEXIS 19219 (Sept. 22, 2004).

Judge Lynch's analysis and commentary in Jackson is too sophisticated and nuanced to briefly summarize here. But through the quotes below, readers should get a sense of why Jackson is a must read. Indeed, as suggested by the title of this post and revealed in the following snippets, Jackson really serves as yet another "amicus brief" for the Supreme Court as it tries to sort through all the issues it faces in Booker and Fanfan:

This case presents sentencing issues that demonstrate the occasional complexity of the federal Sentencing Guidelines. Although the intricacies of the guideline application here are interesting and significant in themselves, the case also illustrates aspects of the Guidelines that are of crucial relevance to both the constitutional questions currently under consideration by the Supreme Court, and to questions of sentencing policy that should be of concern to the Commission and the Congress....

The guideline calculation in this case illustrates both the complexity of the system that follows from its excessive detail and the constitutional awkwardness of at least certain provisions of the Guidelines that require sentencing judges in effect to declare defendants guilty of crimes of which they have not been convicted by a jury. At the same time, the case illustrates why simplistic analysis of "the constitutionality of the Guidelines in light of Blakely," which purports to find the entire system unconstitutional, radically oversimplifies a complicated and diverse sentencing system which in many of its aspects presents no constitutional difficulties at all.

Jackson is noteworthy in part because, as Judge Lynch explains, the applicable guideline "apparently requires the Court to consider whether he is guilty of the far more serious offense of attempted first-degree murder, an offense with which he has never been charged, let alone convicted by a jury." It is also noteworthy because it highlights the operation and availability of upward departures in a way which shows that such departures may be a key mechanism for avoiding "sentencing windfalls" (as suggested here).

More brief brief thoughts

I have now finished a very quick read of all the amicus briefs filed in support of the respondents in Booker and Fanfan (available here). Though all these briefs deserve a close re-reading, I already have a lot of reactions.

First, I must say that I find the briefs' analysis of the initial question — whether Blakely applies to the federal guidelines — not all that exciting (perhaps because the answer to this question seems obvious to me). Nevertheless, each amicus contributes something interesting to this discussion, and collectively the briefs successfully debunk the fictions discussed here that the guidelines are not statutory and that the US Sentencing Commission is an independent agency in which judges make sentencing rules for themselves. (The NACDL's coverage of this issue, along with its dense 8-page Appendix of congressional meddling with the USSC and the guidelines, is particularly effective.)

Second, the different approaches that the amici take on the issue of severability are fascinating. Though a full exegesis of this issue could fill dozens of posts, it is so interesting to see NAFD highlight how easy it is to work Blakely into the existing guidelines, while FAMM urges the rejection of the SG's approach to advisory guidelines as it outlines its own more just vision of advisory guidelines, while the NACDL flags significant Ex Post Facto and Double Jeopardy issues.

Third, I am troubled a bit by what seems missing from some of the amicus briefs — namely, a truly compelling account of the injustices which can result from an adminitrative system of sentencing (detailed here) in which civil standards of proof and hearsay evidence can lead to massive enhancements of prison terms. Because amici do not have to focus on legalese, I was expecting to see a bit more discussion of the equities and a call for invigorating broader principles of justice and due process in federal sentencing. In this respect, the powerful Wall Street Journal article by Laurie Cohen and Gary Fields earlier this week highlighting the human stories behind the operation of the federal sentencing system (discussed here) may still be the most potent "amicus" effort to date.

Great work by another federal district court

Interesting and diverse opinions keep coming from the federal circuits courts (examples here; see also US v. Montgomery, 2004 WL 2050164 (9th Cir. Sept 15, 2004)), as well as from the state appellate courts (examples here; see also People v. Shaw, 2004 WL 2053260 (Cal. App. 3 Dist. Sept. 15, 2004)).

However, through a terrific decision yesterday in US v. Johns, 2004 WL 2053275 (M.D. Pa. Sept. 15, 2004), US District Judge Christopher Conner showed off how important district courts remain —and how much district judges can teach us — in this post-Blakely world.

Johns is a must read for many reasons, and it cannot be succinctly summarized. But a few highlights can perhaps give you a sense of the decision's potency. The opinion starts with lovely understatement, "Sentencing issues that were routine a mere three months ago now merit a full opinion," and articulates at the outset that "the court believes that Blakely and its predecessors compel one holding: The constitutional rights recognized in Blakely are both applicable to and consistent with the United States Sentencing Guidelines."

Thereafter, following a lengthy and thoughtful disquisition on various Blakely issues, the opinion concludes with this flourish:

Blakely is an evolution, not a revolution. It is supplementary, not contradictory. Far from sounding the death knell of the United States Sentencing Guidelines, Blakely supports full operation of those provisions. It affirms that defendants do not shed their constitutional rights to a jury trial and proof beyond a reasonable doubt at the start of sentencing proceedings. Honoring these rights requires only a conceptual bifurcation of sentencing procedure: A determination of the "statutory maximum" must precede and cabin a determination of the Guidelines sentence. Blakely is both applicable to and consistent with the United States Sentencing Guidelines.

And, if that was not enough, the decision also provides "a standing practice order governing future criminal proceedings" attached as an appendix to the opinion.

Surplusage split

As previously discussed here, last week in US v. Mutchler, 2004 U.S. Dist. LEXIS 18053 (S.D. Iowa, Sept. 09, 2004), District Judge Robert Pratt granted a defense motion to strike allegations of aggravating factors in a "Blakely-ized" superseding indictment. But around the same time, in US v. Baert, 2004 U.S. Dist. LEXIS 17911 (D. Maine Sept. 8, 2004), District Judge Brock Hornby (of Fanfan fame) refused to strike allegations pertinent to sentencing because his interpretation of Blakely requires the government to "include such allegations in order to obtain what it considers an appropriate sentence" under the guidelines.

In short, we have an understandable, but still significant, "surplusage split."

And, interestingly, I also recently discovered that US District Judge Robert W. Gettleman, in US v. Brown, 2004 U.S. Dist. LEXIS 17835 (N.D. Ill. Aug. 13, 2004), granted "defendant's motion to dismiss indictment or, alternatively, to strike surplusage from indictment in part" based on the government's addition of "sentencing allegations" in a superceding indictment. But, in the same order, Judge Gettleman granted, over the defendant's "vigorous" objection, the government's motion "to continue the trial date from August 16, 2004, to a date in the future after the court receives guidance from the US Supreme Court in US v. Booker and US v. Fanfan." Based on the surplusage skirmish, I will leave it to others to figure out who won the battle and who won the war in Brown.

Be careful what you wish for

Because of the mobius strip features of the post-Blakely world, many have repeated in various contexts the old cliche warning "Be careful what you wish for." I have previous suggested that the warning seems appropriate in response to arguments that Blakely is just an application of (and not an extension of) Apprendi. As discussed here and here, that argument might keep federal courts from having lots of sentencing headaches in federal direct appeal cases, but then may produce different and greater headaches for these courts when dealing with state habeas cases.

In another arena, the decision yesterday in US v. Mutchler, 2004 WL 2004080 (S.D. Iowa, Sept. 09, 2004), provides another object lesson in "Be careful what you wish for." At the same time that DOJ has been arguing that Blakely is inapplicable to the federal guidelines, it has also been "Blakely-izing" indictments. (See Ron's post here about amended Blakely-ized indictments in the Enron prosecutions, and note here that the Comey memo urged this double-barrel post-Blakely strategy.)

But, in Mutchler, US District Judge Robert Pratt faced a defense motion to strike allegations of aggravating factors in a Blakely-ized superseding indictment. And Judge Pratt was so moved:

The Court considers the Defendants' arguments persuasive and finds that the aggravating factors within the Superseding Indictment are prejudicial surplusage....

The Government argues the addition of the aggravating factors is proper in the current uncertain post-Blakely v. Washington sentencing environment.... The Government's concerns are understandable.... [But] Defendants argue, since the aggravating factors are not properly offenses against the laws of the United States ..., this Court lacks the subject matter jurisdiction over the matters asserted in the aggravating factors.

The Court agrees that the aggravating factors are not criminal conduct defined by Congress and, as such, have no place within the charging documents against the Defendants.... As a part of guidelines meant to act as procedural rules for the court, the aggravating factors do not provide sufficient authority to bring the allegations contained within them properly before a trier of fact in a United States courtroom.

The Government's concerns about the Defendants' possible windfall in the form of a reduced sentence are genuinely placed. However, the scenario in which the Guidelines are found unconstitutional as applied to the present case is still, technically, suppositional. What is not suppositional is that the presence of the aggravating factors within the charging documents as they now exist is unconstitutional.

There is a lot more rich analysis in Judge Pratt's opinion, and the decision reinforces for me that the warning "Be careful what you wish for" might suitably be given to both prosecutors and defense counsel these days.

Re-start your sentencings in Indiana

Though this news is now a bit dated, with all the recent SCOTUS briefing activity I just noticed this weekend that Chief Judge Robert Miller of the US District Court of Northern Indiana denied the request by local US Attorney Joseph Van Bokkelen for a district-wide stay of all sentencings until the US Supreme Court decides Booker and Fanfan.

The details of the interesting stay motion filed last month can be found here, and Marcia Oddi at the The Indiana Law Blog has the highlights of the motion's denial here. In addition, this newspaper article discusses the denial of the motion, while this article reports on a Blakely-impacted sentencing in the Northern District of Indiana right after the motion was denied.

Texas-sized Blakely analysis

In a wonderful and thorough analysis of issues that now confront the Supreme Court in Booker and Fanfan, US District Judge Kathleen Cardone of the Western District of Texas does not let the Fifth Circuit's ruling in US v. Peneiro, 377 F.3d 464 (5th Cir. 2004), keep her from opining on the true meaning of Blakely for federal sentencing law. In US v. Chapparro, 2004 U.S. Dist. LEXIS 17531 (W.D. Tex. Sept. 1, 2004), Judge Cardone recognizes that "Pineiro is undisputedly the law of this Circuit," but then offers a stunningly detailed exegesis and analysis of Blakely issues "in the event the Court of Appeals elects to reconsider its holding in Pineiro."

Though a very long opinion, Chapparro is worth a thorough and full read because it first thoughtfully discusses "the structure and application of the Guidelines [and] relevant Supreme Court precedent leading up to the Blakely decision," and then turns to "a structural comparison between the federal guidelines and the guidelines before the Court in Blakely [in order to] address the significance, if any, of the fact that the federal guidelines are promulgated by an independent agency whereas the guidelines before the Court in Blakely are promulgated by a legislature."

Because Judge Cardone's analysis is so rich, I cannot do it justice with a brief summary. But these key passages I think capture the most important highlights:

Given the past characterization of the Guidelines as binding on judges rather than suggestive, it is difficult to ascertain a principled reason by which an agency delegated lawmaking authority restrained only by a Congressional right of refusal would be permitted to effect the substantive rights of defendants without offending the Constitution while Congressional action of the exact same nature would offend the Constitution. Such an interpretation reduces the right to jury trial to a "mere procedural formality," Blakely, 124 S. Ct. at 2538, in which the essential question becomes not the right itself but rather the source of the procedure. The right to jury trial could be vitiated by simply transferring lawmaking authority to an agency....

[I]t would therefore take a legal fiction of the highest order embracing the proposition that the existing Guidelines, which bind a sentencing court to procedures on peril of reversal, are no more than a court rule guiding a judge through sentencing and therefore constitute a form of agreement with the Commission by which discretion is ceded in exchange for predictability. Only such a fabrication would explain why an offender has rights under statutory guidelines and lacks the same rights under a regulatory guideline.

More on Blakely's retroactivity

In Morris v. US, 2004 WL 1944014 (C.D. Ill. Sep 01, 2004), District Judge Jeanne Scott walks through the various steps of Blakely retroactivity analysis as carefully and as thoroughly as any court to date. Unlike the garbled ruling in Garcia v. US, 2004 U.S. Dist. LEXIS 14984 (NDNY Aug. 4, 2004), Judge Scott's analysis in Morris rightly reflects that Teague's retroactivity analysis only applies to "new" rules, and she comes to the conclusion that Blakely is a "new" rule despite the fact that it is arguably only an application of Apprendi. (See some background on these issue in the post and comments here.)

However, at the last step of her Teague retroactivity analysis, Judge Scott falls prey to a mistake common to many considering retroactivity by suggesting that the Supreme Court's decision in Schriro conclusively forecloses the issue: "Schriro teaches, however, that such a right cannot be applied retroactively because it is not of the type fundamental to the concept of ordered liberty." But, as I have stressed repeatedly before here and here, in Schriro there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion in Schriro); 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.