'No Deals' Age Stymies Lawyers, But Are The Strict Guidelines In Limbo?

Boston criminal defense attorney Stephen Hrones' client is doing a long stint in federal prison on a marijuana conspiracy conviction — one where the federal sentencing guidelines mandated a lengthy "enhancement."
On appeal, while his client was incarcerated, the client was given a 37-month downward departure on the 15-year sentence for "extraordinary rehabilitation."

The government, holding the hammer of the rigid guidelines, appealed this time to the 1st U.S. Circuit Court of Appeals.

But before the 1st Circuit could rule, the U.S. Supreme Court decided Blakely v. Washington, holding that Washington state's sentencing guidelines, which are substantially similar to the federal guidelines, were unconstitutional.
Blakely, which sounded like a thunderbolt in the criminal-defense community, has already been cited by two Massachusetts judges who used the landmark ruling to declare the federal guidelines unconstitutional.

Now Hrones' client, along with clients of many other lawyers, has glimmers of both hope and uncertainty.

What are to become of criminal defendants who have been convicted of or have pled guilty to crimes but haven't yet been sentenced? And does the uncertainty create a better opportunity for defendants to persuade the government that negotiating a win-win plea bargain might be the best way to proceed?

In Hrones' case, the 1st Circuit has yet to rule.

The Boston attorney finds it ironic that had the government not appealed the downward departure in the first place, his client's sentence would have been a done deal.

"But because they tried to exact every ounce of flesh out of my client, [his sentence] was still open when Blakely came down," Hrones says. "If they had just let it alone and not pushed for more time, he would have been sentenced already."

Hrones is now hopeful that his client will see a drastic sentence reduction when all is said and done.

Attorneys who practice in federal court say the combination of U.S. Attorney General John Ashcroft's edict to U.S. attorneys and assistants last fall to "charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case," coupled with Massachusetts U.S. Attorney Michael J. Sullivan's "no plea" policy (pre-Blakely), turned the pursuit of justice for criminal defendants into a rigid, cookie-cutter exercise in futility.

Gone were the days of lighter sentences in exchange for a guilty plea or an agreement to cooperate, attorneys say, prompting criminal defendants to either go to trial more often or plead without an agreement and look to the judge for fair-mindedness when it comes to sentencing.

But now Massachusetts lawyers must consider not only Blakely but the trio of local judges who have declared the guidelines unconstitutional: U.S. District Court Chief Judge William G. Young (in United States v. Green, et al., just days prior to Blakely), and his colleagues on the bench, judges Nancy Gertner and Edward F. Harrington Jr.

In fact, lawyers say looking to a judge to decide any aspect of a sentence based on facts not decided by a jury could be a thing of the past.

Some attorneys believe that such a move might result in even higher sentences for defendants who face a particularly stern jury.

Others, however, believe that raising the standard of proof on facts that can drastically affect the length of a defendant's sentence might level the playing field by forcing the government to tighten up initial indictments and perhaps opening the door to more open negotiations between assistant U.S. attorneys and criminal defense attorneys. The potential result, say lawyers, might be a return to the plea bargaining days and lighter sentences for criminal defendants.

'Bargainless Plea Bargain'

Blakely aside, Sullivan's "no plea" position, attorneys say, shouldn't give the impression that no plea bargains occur.

"The government still enters into plea agreements and defendants do as well," says former U.S Attorney Donald K. Stern.

"And in those agreements, the government still has considerable leverage in the process because the [sentencing] guidelines are so hard," the Boston lawyer says.

What's often missing, however, is a meaningful benefit to the defendant for agreeing to the commission of a crime, Stern notes, adding that the tough stance on plea-bargaining might work against the ultimate goal of fighting crime.

"One thing the government gets out of some plea agreements is cooperation from a pleading defendant, but there is a risk that if you draw too tight a line with plea bargaining, you will lose the food chain in a conspiracy or organized crime case. You have to be careful in the name of being tougher," Stern says.

Boston-based white-collar criminal defense attorney Joseph F. Savage Jr. agrees.
"It's bad for law enforcement. In a lot of cases, you get big sentences on low-level people because there wasn't an agreement that would induce them to cooperate on high-level people," Savage says.

"There are over 250 unsolved murders in Boston. To effectively solve those murders, you inevitably have to award the cooperation of those who provide the evidence," he adds.

With no discretion and no ability to negotiate for their clients, some criminal defense attorneys have found a glimmer of hope in Blakely, Green, and most recently two U.S. District Court decisions, U.S. v. Sisson, which attempts to give back judicial discretion through its holding that the federal sentencing guidelines are just that — guidelines — and should be treated as such, and U.S. v. Mueffleman, which outright rules the federal sentencing guidelines unconstitutional.

And while the prevailing feeling among attorneys when considering how these cases will be applied is uncertainty, some speculate that they represent a philosophical sea change in punishment and sentencing and give defense lawyers some room to negotiate for their clients.

The Cases

In Blakely, the defendant pled guilty to kidnapping his estranged wife and admitted facts that allowed a maximum sentence of approximately four-and-a-half years.

But at sentencing the judge added three years, deciding that the defendant acted with "deliberate cruelty" under Washington state guidelines.

The defendant objected and the court conducted a bench trial, taking testimony from the wife, a police officer and medical experts.
Following the bench trial, the judge reiterated his earlier finding and handed down the seven-and-a-half-year sentence.
On appeal to the U.S. Supreme Court, the defendant argued that the increased sentence violated his Sixth Amendment right to have all facts proven to a jury beyond a reasonable doubt.

The court agreed under its earlier 2000 ruling in Apprendi v. New Jersey, which held that any factors that increase a defendant's sentence for a hate crime must be proven to a jury.

"'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,'" wrote Justice Antonin Scalia on behalf of the court.

"Our precedents make clear that the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (emphasis added by Scalia).

"When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment' (quoting from a U.S. Supreme Court case, Ring v. Arizona (2002)) and the judge exceeds his proper authority," wrote Scalia.
The ruling, Scalia held, strengthens the right to a jury trial.

The opinion, however, also noted that defendants who plead guilty could still consent to judicial fact finding on sentence enhancements "if appropriate waivers are procured."

On the heels of Blakely came a case decided by U.S. District Court Chief Judge William G. Young, U.S. v. Green, et al., which held that criminals sentenced for various drug-related crimes under the federal guidelines should have their jail time reduced where the jury didn't get to hear all of the evidence used in sentencing.

"The Court holds that the [Sentencing] Guidelines system violates the constitutional rules announced in Apprendi and Ring v. Arizona," wrote Young. (See "Young: Guidelines Are Unconstitutional," June 28.)

On July 21, Young's colleague Edward F. Harrington handed down a decision in U.S. v. Sisson, holding: "[I]n all cases, the Court shall handle the sentencing as courts handled sentencing before the Guidelines. Despite a return to an indeterminate sentencing scheme, the Court 'will continue to rely on the Guidelines as recommendations worthy of serious consideration.'"
And, most recently, Judge Nancy Gertner ruled that the federal sentencing guidelines, as applied under Blakely, are unconstitutional. (See "More Judges Say Sentencing Guidelines Are Invalid," Aug. 2.)

Finally, the Bush administration has appealed to the U.S. Supreme Court to rule on the constitutionality of the federal sentencing guidelines by rushing through two appeals on federal drug cases: one, an appeal from the 7th Circuit; the second, a case on appeal to the 1st Circuit (Acting Solicitor General Paul Clement requested that the Supreme Court skip the 1st Circuit appeal and review the case on its own) involving a Massachusetts man convicted in Maine of conspiracy to distribute cocaine (U.S. v. Fanfan). The U. S. Supreme Court granted certiorari and scheduled arguments on an expedited basis for October 4, 2004.

In light of Blakely, the judge in Fanfan sentenced the defendant to six years in prison instead of the 15 to 16 years he was prepared to sentence based partly on facts that weren't part of the jury trial.

Elevating The Standard Of Proof

Amid the uncertainty of what all these cases mean in the long run is the fact that should the federal sentencing guidelines once and for all be held unconstitutional, and should all facts that affect a defendant's sentence be decided by a jury, the standard of proof for all sentencing factors will be elevated.

"Blakely puts a whole new light on the government's ability to go ahead and drive your sentence up by a preponderance of the evidence," says Boston criminal defense attorney George F. Gormley.

"Blakely says 'beyond a reasonable doubt,'" he adds.
Boston criminal defense attorney Amy M. Baron-Evans agrees.
"They can no longer prove by a preponderance of the crappy evidence or by hearsay reports by a person who was high and can't remember [his] own name," she says.

The result, she adds, is that defendants could plead guilty to only the statutory elements of the crime.

"I don't see why a defendant couldn't plead guilty to the statutory elements and then litigate the sentencing elements," she says.

"The fact that the standard of proof has been raised will give some bargaining power. The next time I negotiate a plea agreement, I think the prosecutor will not have as much of an advantage as he used to when all [he] had to use was the civil standard of proof," Baron-Evans notes.
She adds that those defendants who pled without an agreement before Blakely are "thrilled right now because they have no plea agreement to any loss or quantity amounts and a judge can't impose any increases. Blakely says a judge cannot make the factual findings to increase the sentence, and most judges across the country are refusing to apply any enhancements."
Hrones agrees.

"If [defendants] can plead on an indictment without enhancements and then are only sentenced on the base indictment, it forces you to have a jury decide other elements of the offense," he says.

"This is huge for those who have pled but haven't been sentenced," Hrones adds, noting that in his marijuana conspiracy case "the government is coming to us saying, 'Let's work this out.' [The prosecutor] wanted to agree that [the government] would lower the sentence because the gun charge wasn't in the statement of facts and wasn't in the plea agreement."
Hrones says he's also arguing that some "enhancements" that were part of the plea agreement shouldn't apply either.

These latest cases, Hrones says, are forcing the government to say, "'Hey, it's in our best interest to not take a hard line because we may end up with prisons emptied out or guys doing no time in a big case.'"

He continues: "[These cases] allow us to say, 'Give us a little better deal to deal with the uncertainty of what will happen.'"

But pleading without an agreement and subjecting the sentencing elements of a case to a jury comes with its risks, Stern cautions.

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