I believe the Supreme court struck down sentencing enhancements in the state of washington.....trying to get article

Dan

http://customwire.ap.org/dynamic/stories/S/SCOTUS_SENTENCES?SITE=APWEB&SECTION=HOME&TEMPLATE=DEFAULT

Thanks for sharing! :)

After reading the article it sounds as though the Federal system will be shooken up very soon. Atleast this sounds like good news. Thanks Dan

Not sure if you mean Blakely v. Washington, No. 02-1632 Argued March 23, 2004 and decided on June 24, 2004. If so, you can review it at findlaw. The case, which held that "Because the facts supporting petitioner's exceptional sentence were neither admitted by petitioner nor found by a jury, the sentence violated his Sixth Amendment right to trial by jury" was reversed and remanded.

We've been out of town for over a week, I saw my husband on Friday night and he told me about this decision. I couldn't wait to get back here and find out what the details were. I'm like you Dan, WAKE UP PEOPLE!!! This could be great news for our prisoners! While I don't understand how it will all work out, I was hoping some of our people with legal experience here would have commented on this. I would like to know if this means giving a person an enhancement because of a prior conviction is unconstitutional now? Or does apply only to people being enhanced because of their current charge? What about those who didn't go to jury trial (approx 90% don't) & plea bargained instead, how will it affect them? IF this does affect the fed system, which I've read conflicting articles about that. Here's the link for news articles that the November Coalition has posted:

http://www.november.org/Blakely/index.html

I am actually very surprised at the lack of excitement with this new development...Not only from this site but also from even my attorney that said it doesnt apply to me..Imagine that..Im very confused about that..I guess time will tell..................I dont see how it wouldn't because the highest base level for me was the 2 tax counts at 17...the enhancements pushed it to 30...and these are the things that the supreme court is taking issue to...Dont know whats going to happen on the 6th...any thoughts out there

I think that everyone is just waiting to see how this pans out. When I was on the inside everyone was excited about Apprendi, but in the end it really helped very few. I think that there will be a question of retroactivity also. Where this goes remains to be seen.

there have been a couple of threads started on PTO with links to the article.

here is one: http://www.prisontalk.com/forums/showthread.php?p=645896#post645896

The U.S. Supreme Court held that a judge may not use facts not admitted by the defendant or not found by a jury to increase a sentence beyond the guideline range authorized by the jury or guilty plea. To do otherwise violates the defendant's 6th Amendment right to be tried by a jury.

In striking down the Washington State sentencing guidelines, the Court applied the rule enunciated in Apprendi: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The Court determined that the top range of the guidelines was the relevant statutory maximum.

In a footnote, Justice Scalia dismissed concerns raised by dissenters, Justice O'Connor among them, that the opinion sounded the end of the federal sentencing guidelines. "The Federal Guidelines are not before us." :angry:

This is an excerpt from email I received from FAMM. Dan, the bottom paragraph is why your lawyer said it doesn't apply to you. YET!! It doesn't apply for my husband anyway as he was enhanced for a prior that was 16 yrs ago. Many are saying this will reach federal level. Where in the heck is Howard with his opinion????

No one knows what this means yet, but at least 3 federal courts have postponed sentencings until they can study the issues. I participate in several legal forums (I am not a lawyer) and defense lawyers are abuzz about preserving the record at sentencing for future appeals and preparing language for motions. Also there have been articles and followups in most major newspapers.

As mentioned, Sandra Day O'Connor voted against and her language warns of the problems the legal system will be faced with from this decision. I am hoping these "problems" put some of the control back with citizens and result in lower sentences.

From what I have observed, there are potential state and federal ramifications that are going to be litigated for years...

LISTEN UP PEOPLE! This case affects anyone who is currently indicted pending trial or plea, anyone who has been convicted (plea or sentencing) awaiting sentence and many who are on appeal. It has MAJOR ramifications throughout the entire US, state or federal. Even though it deals with a Washington state court sentence, the case interprets the Sixth Amendment, which applies to all courts, including all federal courts. Federal prosecutors across this country are postponing sentences because they fear that people they thought they could put away for a long time aren't going to meet that result.

Dan, implore your attorney to check it out. As I read it, any increase to a defendant's Base Offense Level based on facts you didn't agree to or that the jury didn't specifically find, is unconstitutional. Thank Justice O'Connor for that. I don't know about the specifics of your PSR but I find it almost impossible to believe that you would not benefit from this decision. For example, a fraud conviction carries a base offense level of 6. The pre-Blakely practice allowed a judge to determine the amount of the fraud (and the corresponding increase to the base offense level) based on relevant conduct found by a judge. Post-Blakely, assuming there's no plea agreement stipulating to an amount, I think a jury has to make that determination as well as determine any other enhancements. Unless that is done, you're looking at a Total Offense Level of 6!

Ironically, this decision will likely erode the discretion of sentencing judges but I personally believe that it's impact will be immeasurable and will really help defendants. The people who will feel the real benefit of this opinion right now are people who have been convicted and are awaiting sentencing or who are on appeal. The government can't fix that.

Keep in mind that what I say here is my opinion. I implore all of you: Have your attorneys read Blakely

Anyone has any questions, PM me. It may take me some time to get back to you but I will.

Freedom
I spoke again with hi today and when he said it didnt apply to me he thought it was a different opinion....I caught him getting out of bed...He realizes how it will impact now..He is immediately seeking a postponement of the July 6th sentencing and demanding a new PSR...Im not sure how the AUSA will react, as Im not certain what guidance they received from DC...These guys are such jerks it wouldnt surprise me if they just ignored it...

Dan

Good work Dan.

There really is so much to this opinion and there's no way I could discuss it all here but watch out. I wouldn't be surprised if they tried to empanel a jury for your sentencing.

Good Luck.

Wouldnt it have to be the origional jury...? It may take as long as the origional...

Dan

My attorney contacted me (what a shocker - it was with no prompting from me) and told me that this ruling most certainly applies to our case. She filed a motion (?) on Monday. She said one of three things will occur - #1 - We get the BASE offense level (6) not the enhanced level (16 - as a result of monetary amount and more than "minimal planning") or #2 - A brand new trial or #3 - A reason to appeal the sentencing. She believes that it most certainly affects the federal level. PRAISE THE LORD!!!!!

She said it helped that we did not plead guilty and we had a jury trial.

I'm still set for sentencing on the 7th. But was informed that the AUSA might want a continuance to try and figure this all out. Hoping for the 7th - any of the above are good news - considering all the other stuff that has fallen upon us.

I think everyone should ask their attorneys about this.

selah7 (suzanne)

All Right Suzanne

I still am awaiting what is going to happen to me....We have demanded a new PSR and in talking to pprobation...they said there is now problems with the old one....

Dan

provided to me courtesy of ********@***********.com (********@***********.com) regarding the Supreme Court ruling

Sentencing Decision's Reach Is Far and Wide

http://www.washingtonpost.com/wp-dyn/articles/A8708-2004Jun26.html (http://www.washingtonpost.com/wp-dyn/articles/A8708-2004Jun26.html)

http://deseretnews.com/dn/view/0,1249,595073819,00.html

and this last one which is really good!

http://www.nytimes.com/2004/06/27/politics/27sentencing.html

In March, at the sentencing hearing after his conviction in a financial fraud case, Jamie Olis broke into tears when he heard his fate. Under the federal sentencing guidelines, which penalize defendants who choose to go to trial and can sharply increase sentences based on factors like the financial losses involved, a federal judge in Houston sentenced Mr. Olis, a 38-year-old midlevel executive with an infant daughter, to 24 years in prison.

On Thursday, in striking down Washington State's sentencing law, the Supreme Court almost certainly also doomed the federal guidelines that generated Mr. Olis's sentence and hundreds of thousands like it.

That means Mr. Olis, who has started serving his sentence while the courts consider his appeals, may be entitled to a much shorter prison term. In light of the decision, said Frank O. Bowman, an author of a treatise on sentencing law, "Olis's sentencing range would probably be zero to six months."

Thursday's decision requires any factor that increases a criminal sentence, except for prior convictions, to be proved to a jury beyond a reasonable doubt. Many sentencing schemes allow or require judges to impose longer sentences based on all sorts of criteria, including the defendant's background and the nature and severity of his crime.

The decision may also affect sentencing laws in at least seven states in addition to Washington and the federal system, said Kevin R. Reitz, an expert on sentencing at the University of Colorado. In all of those jurisdictions, many people sentenced in recent years may be expected to challenge their sentences. And prosecutors, defendants and judges in pending and new cases will face an altered landscape.

"It throws the whole country's criminal system into turmoil," said Professor Bowman, who teaches law at Indiana University.

In the federal system alone, which handles a small minority of criminal cases, the "vast majority" of 270,000 sentences in the last four years may be affected, Justice Sandra Day O'Connor wrote in her dissent. "The court ignores the havoc it is about to wreak on trial courts across the country," Justice O'Connor wrote.

John Kramer, a former executive director of the Pennsylvania Commission on Sentencing, said the decision could affect almost 90,000 state cases in the same period. In North Carolina, about 8,000 cases may be affected in those years, said Ronald F. Wright Jr., a law professor at Wake Forest University and an expert on sentencing law.

Jeffrey Fisher, who represents the defendant who challenged the Washington law, said that perhaps 2,600 Washington cases would be affected by the decision in that time frame.

The defendant, Ralph Blakely, had pleaded guilty to kidnapping his estranged wife, which carried a penalty of 53 months. A judge increased the sentence to 90 months based on his finding that Mr. Blakely had acted with "deliberate cruelty," which the defendant had not admitted and no jury had found. The Supreme Court said the imposition of additional time violated Mr. Blakely's right to a jury trial.

Legal scholars were virtually unanimous in agreeing with Justice O'Connor that the decision guts the federal sentencing guidelines.

"It will invalidate the federal guidelines," Mr. Reitz said. "The federal system looks to be invalid from top to bottom."

Pending cases, including those on direct appeal, are affected by the decision. So are, Justice O'Connor wrote, all sentences that followed a 2000 decision, Apprendi vs. New Jersey, on which Thursday's decision was based. A separate decision on Thursday suggested that neither Apprendi nor the new sentencing decision will otherwise be applied retroactively.

The Supreme Court gave trial judges no guidance on how to adjust to the ruling. Starting Thursday morning, for instance, federal judges conducting sentencing hearings had to decide whether to ignore the federal sentencing guidelines entirely, to rely on only those aggravating factors that had been proved to the jury or to carry on as before pending definitive guidance from higher courts.

The middle course is a likely one, experts said.

Luke Esser, a Washington State senator, said the Supreme Court's decision would please defense lawyers in the short run.

"The convicted felons that they represent are very happy that they may be having some of their sentences reduced," Mr. Esser said. "I think the general public and most of the state legislators will not share their enthusiasm."

It is less clear whether defendants will be better off in the long run.

Also unclear is whether the decision will give judges more or less power in deciding sentences. The decision seemed to endorse both traditional sentencing schemes that leave sentences entirely up to judges so long as they do not exceed statutory maximums and schemes that designate fixed sentences for given crimes. Only a middle approach, in which judges are required to make their own factual findings to increase sentences, was held unconstitutional.

Sentencing guidelines that allow or require judges to impose more lenient sentences based on mitigating factors are apparently unaffected.

Prosecutors and judges may use a variety of stopgap measures to address the decision, experts said. Prosecutors can add more factors to indictments and to plea agreements. Judges can require juries to answer so-called special interrogatories concerning the additional factors or give juries a role in sentencing, as happens in death penalty cases.

State legislators in Washington will turn to fixing the flaws in the state's sentencing law identified by the Supreme Court when they reconvene in January, said Mr. Esser, a Republican and the vice chairman of the Senate judiciary committee.

The approach the Washington Legislature ultimately adopts may influence lawmakers in other states and members of the commission that oversees the federal guidelines. Mr. Esser said he favored longer sentences that judges may reduce based on mitigating factors. He dismissed the idea of giving jurors a larger role in sentencing as "too expensive to the point of impracticality."

Justice Antonin Scalia, writing for the majority in Thursday's decision, said that practical considerations must take a back seat to the Sixth Amendment's guarantee of a right to a jury trial. "Our decision cannot turn," Justice Scalia wrote, "on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice."

Mr. Bowman questioned that approach. "They're just upsetting the apple cart," he said. "They're saying, 'You guys pick up the apples.' "

Dan,

In answer to your question, there is no rule of law as to which jury would hear the sentencing issues. This is brand new law and the implementation of it is going to cause major headaches for judges and prosecutors. Look for a change to the Federal Rules of Criminal Procedure in the near future.

My attorney stated that my case just got very interesting since this ruling as I am sure hundreds of others did also. He stated that he is pretty sure my 2 point enhancement for role will be knocked out. This is good because it gets me down to zone B, with 10 points. Hope everyone keeps each other updated on how this law affects their case.

Thats great news Cinammo! Keep us posted!

My sentencing was postponed till July 12, and I hired a new attorney..These guys in the District of New Jersey basicly are telling the Supreme Court to F_ _k off..." Its the Third circuits problem". Probations position is, Federal court was not ruled on...Boy!!!

Dan

What about abuse of position of trust? For this they want to add 2 points? Is that considered an enhancement? And now with a plea agreement it won't be allowed?

Does any of this help someone who has already been sentenced?

Maybe. If you went through a jury trial, did the jury decide your fate on ALL the charges? If you signed a plea bargain, what did you agree too? In my sons case he pled to the base charges - non of the enhancements. He stands to lose 60% of his time.

Sheryl,

I believe the abuse of a position of trust is an enhancement and those two points may be questionable. I would contact your attorney.

Jewela,

I think this applies to people who have signed a plea already and even those who have been sentenced. Atleast that is my interputation of what I have read. Don't take my word. Contact an attorney. I hope this is good news for both of you!

I will call him tomorrow as I had 2 points added to me for Abuse of a Position of Trust and did not get 2 taken off for acceptance of responsibility even though I confessed..... I signed a plea but it did not include anything about those two factors only a downward departure if I paid part of the restitution back before sentencing - From Zone D to Zone B - But Judge departed to a Zone C....for extrordinary efforts to pay restitution....but not extrordinary enough for Zone B

Jewela,

What the heck? If you confessed, why didn't you get two points taken off? Now you have me worried!

Another interesting article on the recent ruling

http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20040702/RCRIM02/TPInternational/Americas

If you have been sentenced and did not appeal, it's unlikely that Blakely will help you. The theory is that your conviction is final. However, have your attorney check out federal habeas relief. I would argue that your lawyer was ineffective for not being as astute as the defense lawyers in Blakely. If, however, you are pending sentencing or on appeal, you better get your lawyer moving ASAP to preserve the Blakely issues.

Blakely does apply to the abuse of position of trust enhancement, as long as you didn't agree to it in the plea agreement.

This is the most dynamic development in criminal law that I have ever witnessed although its positive impact will, in my opinion, be short-lived. Congress and prosecutors will eventually be able to use it to enforce iron-clad results.

Freedomseeker,

What do you mean by saying that you think Congress and Prosucutors will use it to produce iron clad results. Can you give an example of how this would be?

Sure, here's my short explanation (there are so many collateral issues that there's no way I could get into all of them):

Once Congress makes the necessary changes to get the Guidelines to comply with Blakely, prosecutors will be able to get the same jury that convicts a defendant to make findings about sentencing enhancements. Although sad, these same juries that have a propensity to convict, will likely continue and find that the facts underlying the enhancements also exists. Federal judges will be bound by those findings and will be forced to add the enhancements. What little discretion they had will be gone forever.

There will still be more questions about how it's done but in effect, the juries will now, for the most part, be ruling on guilt and sentence. Judges will only be there to implement it. Enjoy Blakely now because at present, it's very valuable to defendants.

Thanks. I am hoping in my case, where I will be signing a plea in about thirty days that the US attorney just agrees at this time to drop my enhancement for role. That is what my attorney is asking him to do. I sure hope that everyone here takes advantage of this while they can.

hello everyone, i have a brother that was convicted 12 years ago and he has appealed his case under apprendi he should of only got 40 months and the juge gave him 30 years. out of florida...for consp. to manufacture......he was from oregon..since his appeals have run out would he be able to open his case again and use this new ruling out of washington in his favor....

hello everyone, i have a brother that was convicted 12 years ago and he has appealed his case under apprendi he should of only got 40 months and the juge gave him 30 years. out of florida...for consp. to manufacture......he was from oregon..since his appeals have run out would he be able to open his case again and use this new ruling out of washington in his favor....

You said the "judge gave him 30 years?" for conspircy. Did a jury find him guilty of that? If it was the jury then no if it was the judge, then he needs to file one ASAP!!!! If a JUDGE found him guilty of that then the judge didnt have that right.
Your 6th amendment right is to be found guilty by jury, unless you admitt guilt in a plea.
If he admitted guilt in a plea, did he plead guilty to conspiracy? if no then he has the right to appeal.

my brother was tried in front of a jury and was sentenced by the judge...he never worked out a plea.....he has always appealed the time given for what he was convicted on....the max. was suppose to be 40 months and he was given 30 years.........the jury never gave him a sentence. just a conviction.....

It will be interesting to see what the courts do with this decision. It was somewhat inevitable because I believe that society has become exasperated with the lengthy sentences for white collar crime. Those sentences do not reflect the wishes of society, nor do they reflect the principles for which our judicial system was founded on.

I suspect that the good that comes out of Blakely will be two-fold: First, I believe that certain non-violent, white collar criminals will receive significant downward departures to their sentences, and second, in the long run, I believe that this will be a wake up call for Congress to reform the sentencing guidelines.

Unfortunately, like any new ruling, only the present cases are immediate beneficiaries of the case. In future cases, prosecutors will take care to comply with Blakely. Furthermore, I doubt that this will result in new trials for any persons already convicted. They will probably just get sentence reductions. Additionally, in circumstances where persons were convicted of particularly egregious conduct, such as child molestation or other violent crime, the judge's will find a way to keep the sentences lengthy without violating Blakely.

For instance, one judge gave a man convicted of child pornography the same sentence that he received under the guidelines. His basis for this was his contention that the guidelines were unconstitutional under Blakely and therefore, he was able to sentence the man for any length of time between the statutory minimum 1 year and the statutory maximum 20 years. So, he gave him the 12 years that was previously negotiated under the guidelines. If other judges use this analysis, than as long as the judge did not go over the statutory maximum for the crime committed, Blakely will be of little use.

I realize that some are taking the position that you just delete all upward adjustments and then use the base level offense to determine the sentence and I hope they are right, but I doubt it. Just my two cents.

The news speciel I saw said that in the future,in a jury trial,the jury will also have to vote on the enhancements as well.the judge will only be there to read the verdict and pass sentence.So people who go to trial will have there fate in the hands of the jury only.the judge will have very little to deside except between the guideline min/max AFTER the enhancements have been ruled on.for those already sentenced by jury,if they received enhancements by a judge they will have to have another trial and the jury will have to vote for or against the enhancements.Since this will be alot of trouble,I look to see many people get a reduction without going back to trail.

Vince, where did you see the special that said that people who already got enhancements will get new trials? Everything, I have seen is that the judge will probably just resentence people either ignoring the sentencing guidelines completely as unconstitutional, or just reducing people's sentences to remove the increases for enhancements.

FYI

New NACDL Blakely v. Washington Resource Page

The constitutionality of the federal sentencing guidelines, and nearly a dozen state sentencing guidelines schemes, was seriously called into question June 24 with the Supreme Court’s decision in Blakely v. Washington, No. 02-1632. The case, following the line of Apprendi v. New Jersey and its progeny, held that no fact can enhance a sentence in a criminal case beyond the statutory maximum for an offense unless the fact is found by a jury beyond a reasonable doubt or admitted with a plea of guilty.

NACDL's newBlakely v. WashingtonResource Page (http://www.nacdl.org/public.nsf/newsissues/blakely?opendocument) collects the latest opinions, briefs, transcripts, articles and op-eds. It is updated regularly with submissions from NACDL members and public defenders and private lawyers in the criminal defense bar at large.

The Resource Page is linked at NACDL's home page at http://www.nacdl.org (http://www.nacdl.org/) (click on "Hot Issues"). To go directly to the page now, click here (http://www.nacdl.org/public.nsf/newsissues/blakely?opendocument).

To read President-Elect Barry Scheck’s statement praising the Blakely decision, click here (http://www.nacdl.org/public.nsf/newsreleases/2004mn014?opendocument).

The page was created by Membership and Information Systems Director Steven Frazier, with editorial assistance by Public Affairs Director Jack King. It will be updated regularly to keep the defense bar and the public informed.

For additional resources, do not forget to search NACDL's Brief and Motions Bank, keyword Apprendi.

Contact: Jack King, NACDL Public Affairs

The special I saw was by BOB ABERNATHY,on PBS,It didnt say for sure that people would get retrial but since the enhancements were unconstitional they would have to be droped or desided on by a jury,so it may be up to the prosecutor whether to retrial or not since it was his decision to enhance in the first place. SELAH7 has listed several great links that should explain as much as anybody really knows at this time.

My boyfriend phoned me on Saturday regarding this ruling. Everyone in USP Coleman was excited about this ruling. After reading Freedomseekers post, I got a little dissapointed because my boyfriend has already been sentenced in May. It sounds like it is only in pending litigation cases or appeals cases. I don't see how this can be it should apply to everyone's constitutional rights whether it is 8 years ago or now. I understand it would completly clog the system, but...If this would apply to him, and we filed for a new sentencing, it could reduce his enhancement points by 6 points.....Your talking 2-3 years! I ran over to his fathers when he phoned. We were jumping up and down! He thought I won the lottery! I immediatly tried to get on Prisontalk but the sight was down.

The jury doesnt hand out sentences, they only determine guilt or innocense.
What they were doing was a judge would determine "how" guilty a person was by allowing enhancements to a crime based on his actions. The supreme courts ruled that is unconstitutional, you have the right to tried "by all factors" by a jury. people are plead and being found guilty and then given "extra points"because the judge think he should get the extra points....

I dont know about you, but if i am being charge with a crime, the facts better be provable, because i'm not doing time for something a judge thinks because the prosecution said it was so!!

my brother was tried in front of a jury and was sentenced by the judge...he never worked out a plea.....he has always appealed the time given for what he was convicted on....the max. was suppose to be 40 months and he was given 30 years.........the jury never gave him a sentence. just a conviction.....

My boyfriend phoned me on Saturday regarding this ruling. Everyone in USP Coleman was excited about this ruling. After reading Freedomseekers post, I got a little dissapointed because my boyfriend has already been sentenced in May. It sounds like it is only in pending litigation cases or appeals cases. I don't see how this can be it should apply to everyone's constitutional rights whether it is 8 years ago or now. I understand it would completly clog the system, but...If this would apply to him, and we filed for a new sentencing, it could reduce his enhancement points by 6 points.....Your talking 2-3 years! I ran over to his fathers when he phoned. We were jumping up and down! He thought I won the lottery! I immediatly tried to get on Prisontalk but the sight was down.
An article in the NY Times quoted Sandra Day O'Connor as saying that "the vast majority of 270,000 sentences in the last four years may be affected", referring to the federal system. It goes on to say that legal scholars were virtually unanimous in agreeing with her that the decision guts the federal sentencing guidelines and also that she wrote that pending cases, including those on direct appeal, are affected by the decision. So are all sentences that followed a 2000 decision, Apprendi vs. New Jersey, on which Thursday's decision was based. This sounds like anyone sentenced after 2000 would have a case to appeal to get a sentence reduction if there were enhancements involved in their sentencing. That's pretty much what the lawyer's at the FPC where my boyfriend is are telling him. In his case, he only has 8 months left til he goes to Halfway House, so there probably isn't time for an appeal.

What about all the people that already served their sentance with the enhancements?Their rights have been violated.seems like they have grounds for a law suit.

Can a judge give a upward departure for an understated criminal history? I mean before this Blakely ruling?

Prior to Blakely, a judge could depart upward on that basis. See Section 4A1.3 of the Guidelines.

As for retroactivity of Blakely, there's no real bright line. On the same day as Blakely, the Supreme Court decided Schirro v. Summerlin which tends to suggest that Apprendi like issues are procedural in nature and not generally retroactive.

I am certain that this case will affect anyone who had significant enhancements who has more than a year left on their sentence. However, if you were sentenced without enhancements, you are pretty much screwed and if you have already done your time, you are screwed too. You can't sue for having to do extra time because Blakely was not law at that time and there is a little thing called immunity.

My boyfriend's entire sentence was enhancements. His base offense level was 6 points but he received enhancements for being a supervisor, number of victims, attempted loss, and none of these enhancements were agreed upon in the plea agreement and since he plead guilty, there was no jury. More than a year remains on his sentence. Does anyone have any idea what type of paperwork needs to be filed? What specific documentation/motion? Any info would be greatly appreciated.

Moreover, Blakely is an amazing decision. It greatly limits the power of the prosecution. Pre-Blakely, the gov't makes gives a point level and the judge issues a sentence based on those points. I am both optimistic and excited to see what changes this decision will bring forth.

Don't get too excited over the opinion. In the long run, it may give prosecutors MORE power. It is going to erode what little discretion the judges had. If a jury buys the enhancements, we're stuck with them. A sympathetic judge won't help at all.

As for it applying to all people with more than a year left, I have no idea what basis in law there is for that premise. I'm definitely interested in seeing it though.

The reality is that unless your case is pending or if it is on appeal, Blakely probably won't help you. I hope I'm wrong but I'm not so sure it applies to final convictions. I'm very interested to hear any thoughts.

How could it not be retroactive? How could the gov't justify keeping people confined based on unconstitutional sentences? When someone previously sentenced to 20 years gets a reduction to 12 months, that is substantial. Plus, I believe it was Sandra O'Connor who said that 250,000 people in the federal system will be affected by this decision.

The prevailing legal issue is that by failing to raise it in their cases, defendants have waived the issue.

As for Justice O'Connor, if you read her opinion, she specifically limits her comments to convictions still on direct appeal. She also mentions that there is potential for collateral attack on sentences imposed since 2000. No guarantee. People have been stretching her opinion a little too far.

We haven't even gotten to the plea agreement part of our situation. I was thinking that with all the sentencing confusion that it might be awhile before we get there. Will this new ruling affect our case if it takes a year or more to get to the plea agreement part?

Jenn

More than likely, the decision will not affect the end result, it will only affect the way you get there. The government will probably request that you waive the Sixth Amendment, that you agree to let the judge make the call or that you stipulate to the amendments. Truth is, since you are awaiting a plea, the government will make sure they get what they want.

From a practical standpoint, the appellate courts are taking between 6 to 12 months to hear appeals and I believe that in most circuits, if not all, you only have one year from the date of sentencing to file an appeal. As such, if you have less than a year left on your sentence, chances are your appeal will not even be heard by the time you get out. And, if it has been more than one year from sentencing you may not have any more appellate rights. That's something that you would have to ask your particular defense counsel. The people that this decision will really help are those people already on appeal with significant enhancements, who had good lawyers that preserved all appellate arguments.

Please refer to the following thread regarding DOJ response to Blakely - as just issued (The prosecutor and the judge in my case stood by DOJ).

http://www.prisontalk.com/forums/showthread.php?p=655913#post655913

Shrekney,

Just to clear things up, a criminal defendant only has 10 days to appeal their conviction and sentence. Now that I see you were talking about the practicality of the time in an appeal, you are probably right. There are other mechanisms to expedite the appeal though.

I am a defense lawyer.

The year you are referring to applies to 2255 proceedings (collateral attacks usually raising ineffectiveness of counsel) which even Justice O'Connor notes is no sure thing. You are right, people who will benefit most are those still on direct appeal.

The DOJ's response is interesting. Pile on baby, pile on.

What about my boyfriend? Any suggestions would help as to if he has a chance at this appeal. Plead guilty to a detectable amount of meth (count 15). Judge sentenced him for 5 grams of pure. Enhanced twice based on some sh*t that he was never charged for prior to his arrest. Imprisoned for 87 months with 5 years supervised release. Prior to this Blakely ruling, he appealed and it was affirmed. I've been doing Personal Injury for years and have nominal knowledge in this area of practice.