Nemesis
08-09-2004, 06:31 PM
Lawyers Weekly
By Correy E. Stephenson
In the wake of a recent U.S. Supreme Court decision invalidating a state sentence-enhancement scheme, lawyers and judges are trying to determine the impact on the federal sentencing guidelines.
In her dissenting opinion, Justice Sandra Day O'Connor predicted that the case would lead to "disastrous" results.
"The court ignores the havoc it is about to wreak on trial courts across the country. … What I have feared most has now come to pass: Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy." (Blakely v. Washington, 124 S.Ct. 2531.)
Just weeks later, those fears appear to have become reality.
According to sentencing expert and Indiana University law professor Frank O. Bowman III, the federal court system is in "chaos."
"Inside of two weeks following Blakely, four [federal circuits] have reached four different results. And in a single federal district in Utah, four judges have reached different results, somewhat different than the four courts of appeals," he said.
In Blakely, the Supreme Court held that any factors a judge considers in enhancing a criminal sentence under state guidelines must be proved to a jury beyond a reasonable doubt, and that the failure to do so violated the Sixth Amendment.
Although the majority decision stated, "[t]he Federal Guidelines are not before us, and we express no opinion on them," many experts say that the guidelines are living on borrowed time.
"Everybody thinks the federal system has been blown up," said Bowman.
A number of states will be affected as well. Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Oregon, Pennsylvania and Tennessee all have guideline schemes similar to the Washington one at issue in Blakely.
Although various legislative solutions have been suggested, from the creation of "sentencing juries" to an entirely new set of federal sentencing guidelines, no definitive legislation has yet been advanced by Congress.
And Bowman cautioned, "there is a lingering possibility that the Supreme Court could come back in October and all the running around could have been for naught."
That uncertainty has created the current split among the circuits, led to certified questions being sent to the Supreme Court and even raised the possibility of a request for re-hearing from the state of Washington.
The end result, say most lawyers, is that the justices will be forced to take this issue up again in the near future.
"There is a growing need for the Supreme Court to tell us what to do," said Monica R. Jacobson, a small-firm criminal appellate attorney in New York.
The Fallout
In response to the situation, Deputy Attorney General James Comey sent a memo on July 2 to all federal prosecutors on how to handle the Blakely fallout.
In the memo, Comey urged prosecutors to "immediately" seek Blakely waivers from defendants who have agreed to plead guilty but haven't been sentenced.
Prosecutors were also instructed to create more broad-based indictments that include aggravating factors that would normally not have been at issue until sentencing, such as the use of a weapon or amounts of drugs and money.
But because prosecutors now face a higher standard of proof, defense attorneys have greater leverage to bargain over plea agreements, as well as an incentive not to waive a defendant's rights to have a jury decide facts that could potentially increase a sentence, said David M. Porter, a federal public defender in Sacramento, Calif.
"We should take advantage of this time to formulate creative arguments and push for the best benefits for our clients," he said.
For defendants who have already been convicted, Porter said the best approach will vary from case to case.
Defendants facing sentencing as "career criminals" should argue that the guidelines are wholly unconstitutional, he said, along the lines of the recent 6th Circuit opinion. (See sidebar.)
If the entire structure of the guidelines is unconstitutional, including the minimum sentencing ranges, defendants then have greater flexibility when facing high sentences, Bowman explained.
Alternatively, defendants facing an upward departure can argue that the sentencing ranges in the guidelines are not unconstitutional, only the process of allowing judges to depart upward based on post-conviction findings, Bowman said.
This argument, if successful, will effectively keep sentencing ranges from being increased.
"The rules are still in place, but post-trial, a judge just can't make any additional factual findings," said Bowman.
As an example, Porter pointed to a recent Virginia case in which defendant convicted of conspiracy to manufacture methamphetamine was facing a 20-year sentence based on "relevant conduct," but saw his sentence reduced to 12 months in the wake of Blakely. (United States v. Shamblin, No. 2:03-00217, June 30, 2004.)
The DOJ memo points to prior Supreme Court rulings upholding the merits of the federal sentencing act and instructs prosecutors to argue that the guidelines remain constitutional.
However, if a judge finds Blakely applicable to a federal case where upward adjustments exist, prosecutors should then argue that the guidelines don't apply and "consistent with what would have been a guidelines sentence, the judge should impose a sentence within the maximum and minimum terms established by statute."
Despite these attempts to maintain uniform prosecutions, Acting Solicitor General Paul Clement has filed two appeals with the Supreme Court, seeking expedited review because of "a wave of instability." The cases are both drug-related.
The government's appeal argues first that Blakely does not apply to the federal sentencing guidelines at all. Failing that, it argues that the guidelines are not severable and should be completely invalidated, advocating a return to the discretionary sentencing used prior to the 1984 Sentencing Act.
The appeals also ask the court to decide whether Blakely is retroactive.
What Now?
Bowman recently testified before Congress about a possible interim solution: for judges to decline to increase sentences based on post-conviction judicial findings of fact, but based on a 2002 Supreme Court decision, Harris v. United States (536 U.S. 545), continue to use post-conviction judicial findings to increase guideline minimums.
"Is there any logic to this position? No, or not much," he said, but noted that it might provide a short-term fix.
Another possible solution is to follow the approach adopted by Kansas in 2002 of utilizing "sentencing juries."
Paul J. Morrison, district attorney for Johnson County, Kansas, said that having the jury make determinations for upward departures only adds "about one or two hours" to a trial.
And in some cases, he noted, a separate sentencing proceeding might not even be necessary to establish certain aggravating factors, such as a vulnerable victim, who might take the stand during the case in chief. The issue of vulnerability would simply be added as a separate interrogatory on the jury form.
Morrison tried a four-day, 21-count burglary case in March where the defendant had a history of failed probations - an aggravating factor for sentencing in Kansas.
After finding the defendant guilty, the jury listened to Morrison question three probation officers who testified about how the defendant violated the terms of his probation.
Aggravating factors are usually fairly simple propositions, Morrison said.
"In more complicated situations a sentencing hearing could add a few hours onto a trial, but there's not much to it, frankly," he said.
However, Porter said that this solution, which was mentioned as a possibility by U.S. District Court judges in Utah and West Virginia, would not work in the federal court system absent an act of Congress.
Federal Rule of Criminal Procedure 32 "says the judge makes sentencing determinations, not the jury. I think it's possible for Congress to make a legislative fix by changing that, but in terms of a judge ad hoc creating a sentencing jury, I don't think that is permitted until Congress authorizes it," he said.
* * *
How The Courts Have Ruled
7th Circuit
* In the first case to consider the issue in the wake of the Blakely decision, the 7th Circuit held that the application of the federal sentencing guidelines violated the Sixth Amendment.
A jury found the defendant guilty of possession with the intent to distribute at least 50 grams of cocaine base, but at sentencing a judge found a greater quantity of drugs and increased his minimum sentence to 30 years.
The 7th Circuit held that "the guidelines, though only in cases such as the present one in which they limit defendants' right to a jury and to the reasonable-doubt standard, and thus the right of [the defendant] to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely."
11th Circuit
* Without deciding the constitutionality of the guidelines, the 11th Circuit ruled the same day that Blakely was not a "new rule of constitutional law" and therefore, could not be made to apply retroactively. The court then dismissed the defendant's attempt to reduce his sentence.
5th Circuit
* Three days later, the 5th Circuit held that Blakely did not extend to the federal sentencing guidelines.
In that case, a jury found the defendant guilty of conspiring to distribute drugs. Based on a pre-sentence report, a judge increased the defendant's minimum sentence.
The 5th Circuit held that a sentencing judge may "properly find facts that move the guidelines range within the statutory maximum."
The court noted that "the Supreme Court has repeatedly blessed the guidelines and upheld them against sundry constitutional challenges… Blakely may have weakened the long-embraced distinction between United States Code maxima and guidelines ranges, but we cannot conclude that Blakely - which explicitly reserved comment on the guidelines - has abolished the distinction's importance."
2nd Circuit
* In a unanimous en banc decision, the 2nd Circuit took the highly unusual step of certifying the issue of Blakely's application to the federal sentencing guidelines to the U.S. Supreme Court.
In a pair of consolidated cases - both involving defendants appealing their sentences for drug-related offenses, one imposed after a jury verdict and the other after a guilty plea -the court declined to rule, instead requesting guidance.
"In the usual case, a measure (even a very large measure) of doctrinal uncertainty may be tolerated. But we believe this is one of those 'rare instances' when 'the proper administration and expedition of judicial business' warrants certification of a question to the Supreme Court. … Blakely not only casts a pall of uncertainty on more than 220,000 federal sentences…it also raises the prospect that many thousands of future sentences may be invalidated or, alternatively, that district courts simply will halt sentencing altogether pending a definitive ruling by the Supreme Court," the court said
6th Circuit
* Two days later, the 6th Circuit followed the 7th Circuit, holding that in light of Blakely, federal courts should use the guidelines only as "recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for."
However, the court vacated its decision on July 19 and ordered an en banc re-hearing.
9th Circuit
* The 9th Circuit has also followed the 7th Circuit and found Blakely applicable to the federal guidelines.
In reversing an upward departure for conspiracy to distribute methamphetamine sentence, the court found the remainder of the guidelines severable from the judge's post-conviction findings of fact.
8th Circuit
* Most recently, the 8th Circuit weighed in, holding the federal sentencing guidelines wholly unconstitutional. The defendant's conviction for mail fraud, money laundering and securities fraud was affirmed, but the case was remanded to a U.S. District Court for re-sentencing.
"All previous cases upholding enforcement of the guidelines considered separate issues unrelated to the issue resolved by Blakely. Certainly, defendants have no weaker rights under the Sixth Amendment against the federal government than they do against the states," the court said.
The court said that on remand, the guidelines should only be used for advisory purposes but are not binding, as they "were designed as an integrated regime, and therefore cannot be severed into constitutional and unconstitutional parts while still remaining true to the legislative purpose."
U.S. Court of Appeals, 7th Circuit. U.S. v. Booker, No. 03-4225. July 9, 2004. Lawyers Weekly USA No. 9928711.
U.S. Court of Appeals, 11th Circuit. In Re Dean, No. 04-13244. July 9, 2004. Lawyers Weekly USA No. 9928731.
U.S. Court of Appeals, 5th Circuit. U.S. v. Pineiro, No. 03-30437. July 12, 2004. Lawyers Weekly USA No. 9928712.
U.S. Court of Appeals, 2nd Circuit. U.S. v. Penaranda, No. 03-1055. July 12, 2004. Lawyers Weekly USA No. 9928710.
U.S. Court of Appeals, 6th Circuit. U.S. v. Montgomery, No. 03-5256. July 14, 2004. Lawyers Weekly USA No. 9928713.
U.S. Court of Appeals, 9th Circuit. U.S. v. Ameline, No. 02-30326. July 21, 2004. Lawyers Weekly USA No. 9928743.
U.S. Court of Appeals, 8th Circuit. U.S. v. Mooney, No. 02-3388. July 23, 2004. Lawyers Weekly USA No. 9928745.
Questions or comments can be directed to the writer at: cstephenson@lawyersweekly.com.
By Correy E. Stephenson
In the wake of a recent U.S. Supreme Court decision invalidating a state sentence-enhancement scheme, lawyers and judges are trying to determine the impact on the federal sentencing guidelines.
In her dissenting opinion, Justice Sandra Day O'Connor predicted that the case would lead to "disastrous" results.
"The court ignores the havoc it is about to wreak on trial courts across the country. … What I have feared most has now come to pass: Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy." (Blakely v. Washington, 124 S.Ct. 2531.)
Just weeks later, those fears appear to have become reality.
According to sentencing expert and Indiana University law professor Frank O. Bowman III, the federal court system is in "chaos."
"Inside of two weeks following Blakely, four [federal circuits] have reached four different results. And in a single federal district in Utah, four judges have reached different results, somewhat different than the four courts of appeals," he said.
In Blakely, the Supreme Court held that any factors a judge considers in enhancing a criminal sentence under state guidelines must be proved to a jury beyond a reasonable doubt, and that the failure to do so violated the Sixth Amendment.
Although the majority decision stated, "[t]he Federal Guidelines are not before us, and we express no opinion on them," many experts say that the guidelines are living on borrowed time.
"Everybody thinks the federal system has been blown up," said Bowman.
A number of states will be affected as well. Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Oregon, Pennsylvania and Tennessee all have guideline schemes similar to the Washington one at issue in Blakely.
Although various legislative solutions have been suggested, from the creation of "sentencing juries" to an entirely new set of federal sentencing guidelines, no definitive legislation has yet been advanced by Congress.
And Bowman cautioned, "there is a lingering possibility that the Supreme Court could come back in October and all the running around could have been for naught."
That uncertainty has created the current split among the circuits, led to certified questions being sent to the Supreme Court and even raised the possibility of a request for re-hearing from the state of Washington.
The end result, say most lawyers, is that the justices will be forced to take this issue up again in the near future.
"There is a growing need for the Supreme Court to tell us what to do," said Monica R. Jacobson, a small-firm criminal appellate attorney in New York.
The Fallout
In response to the situation, Deputy Attorney General James Comey sent a memo on July 2 to all federal prosecutors on how to handle the Blakely fallout.
In the memo, Comey urged prosecutors to "immediately" seek Blakely waivers from defendants who have agreed to plead guilty but haven't been sentenced.
Prosecutors were also instructed to create more broad-based indictments that include aggravating factors that would normally not have been at issue until sentencing, such as the use of a weapon or amounts of drugs and money.
But because prosecutors now face a higher standard of proof, defense attorneys have greater leverage to bargain over plea agreements, as well as an incentive not to waive a defendant's rights to have a jury decide facts that could potentially increase a sentence, said David M. Porter, a federal public defender in Sacramento, Calif.
"We should take advantage of this time to formulate creative arguments and push for the best benefits for our clients," he said.
For defendants who have already been convicted, Porter said the best approach will vary from case to case.
Defendants facing sentencing as "career criminals" should argue that the guidelines are wholly unconstitutional, he said, along the lines of the recent 6th Circuit opinion. (See sidebar.)
If the entire structure of the guidelines is unconstitutional, including the minimum sentencing ranges, defendants then have greater flexibility when facing high sentences, Bowman explained.
Alternatively, defendants facing an upward departure can argue that the sentencing ranges in the guidelines are not unconstitutional, only the process of allowing judges to depart upward based on post-conviction findings, Bowman said.
This argument, if successful, will effectively keep sentencing ranges from being increased.
"The rules are still in place, but post-trial, a judge just can't make any additional factual findings," said Bowman.
As an example, Porter pointed to a recent Virginia case in which defendant convicted of conspiracy to manufacture methamphetamine was facing a 20-year sentence based on "relevant conduct," but saw his sentence reduced to 12 months in the wake of Blakely. (United States v. Shamblin, No. 2:03-00217, June 30, 2004.)
The DOJ memo points to prior Supreme Court rulings upholding the merits of the federal sentencing act and instructs prosecutors to argue that the guidelines remain constitutional.
However, if a judge finds Blakely applicable to a federal case where upward adjustments exist, prosecutors should then argue that the guidelines don't apply and "consistent with what would have been a guidelines sentence, the judge should impose a sentence within the maximum and minimum terms established by statute."
Despite these attempts to maintain uniform prosecutions, Acting Solicitor General Paul Clement has filed two appeals with the Supreme Court, seeking expedited review because of "a wave of instability." The cases are both drug-related.
The government's appeal argues first that Blakely does not apply to the federal sentencing guidelines at all. Failing that, it argues that the guidelines are not severable and should be completely invalidated, advocating a return to the discretionary sentencing used prior to the 1984 Sentencing Act.
The appeals also ask the court to decide whether Blakely is retroactive.
What Now?
Bowman recently testified before Congress about a possible interim solution: for judges to decline to increase sentences based on post-conviction judicial findings of fact, but based on a 2002 Supreme Court decision, Harris v. United States (536 U.S. 545), continue to use post-conviction judicial findings to increase guideline minimums.
"Is there any logic to this position? No, or not much," he said, but noted that it might provide a short-term fix.
Another possible solution is to follow the approach adopted by Kansas in 2002 of utilizing "sentencing juries."
Paul J. Morrison, district attorney for Johnson County, Kansas, said that having the jury make determinations for upward departures only adds "about one or two hours" to a trial.
And in some cases, he noted, a separate sentencing proceeding might not even be necessary to establish certain aggravating factors, such as a vulnerable victim, who might take the stand during the case in chief. The issue of vulnerability would simply be added as a separate interrogatory on the jury form.
Morrison tried a four-day, 21-count burglary case in March where the defendant had a history of failed probations - an aggravating factor for sentencing in Kansas.
After finding the defendant guilty, the jury listened to Morrison question three probation officers who testified about how the defendant violated the terms of his probation.
Aggravating factors are usually fairly simple propositions, Morrison said.
"In more complicated situations a sentencing hearing could add a few hours onto a trial, but there's not much to it, frankly," he said.
However, Porter said that this solution, which was mentioned as a possibility by U.S. District Court judges in Utah and West Virginia, would not work in the federal court system absent an act of Congress.
Federal Rule of Criminal Procedure 32 "says the judge makes sentencing determinations, not the jury. I think it's possible for Congress to make a legislative fix by changing that, but in terms of a judge ad hoc creating a sentencing jury, I don't think that is permitted until Congress authorizes it," he said.
* * *
How The Courts Have Ruled
7th Circuit
* In the first case to consider the issue in the wake of the Blakely decision, the 7th Circuit held that the application of the federal sentencing guidelines violated the Sixth Amendment.
A jury found the defendant guilty of possession with the intent to distribute at least 50 grams of cocaine base, but at sentencing a judge found a greater quantity of drugs and increased his minimum sentence to 30 years.
The 7th Circuit held that "the guidelines, though only in cases such as the present one in which they limit defendants' right to a jury and to the reasonable-doubt standard, and thus the right of [the defendant] to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely."
11th Circuit
* Without deciding the constitutionality of the guidelines, the 11th Circuit ruled the same day that Blakely was not a "new rule of constitutional law" and therefore, could not be made to apply retroactively. The court then dismissed the defendant's attempt to reduce his sentence.
5th Circuit
* Three days later, the 5th Circuit held that Blakely did not extend to the federal sentencing guidelines.
In that case, a jury found the defendant guilty of conspiring to distribute drugs. Based on a pre-sentence report, a judge increased the defendant's minimum sentence.
The 5th Circuit held that a sentencing judge may "properly find facts that move the guidelines range within the statutory maximum."
The court noted that "the Supreme Court has repeatedly blessed the guidelines and upheld them against sundry constitutional challenges… Blakely may have weakened the long-embraced distinction between United States Code maxima and guidelines ranges, but we cannot conclude that Blakely - which explicitly reserved comment on the guidelines - has abolished the distinction's importance."
2nd Circuit
* In a unanimous en banc decision, the 2nd Circuit took the highly unusual step of certifying the issue of Blakely's application to the federal sentencing guidelines to the U.S. Supreme Court.
In a pair of consolidated cases - both involving defendants appealing their sentences for drug-related offenses, one imposed after a jury verdict and the other after a guilty plea -the court declined to rule, instead requesting guidance.
"In the usual case, a measure (even a very large measure) of doctrinal uncertainty may be tolerated. But we believe this is one of those 'rare instances' when 'the proper administration and expedition of judicial business' warrants certification of a question to the Supreme Court. … Blakely not only casts a pall of uncertainty on more than 220,000 federal sentences…it also raises the prospect that many thousands of future sentences may be invalidated or, alternatively, that district courts simply will halt sentencing altogether pending a definitive ruling by the Supreme Court," the court said
6th Circuit
* Two days later, the 6th Circuit followed the 7th Circuit, holding that in light of Blakely, federal courts should use the guidelines only as "recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for."
However, the court vacated its decision on July 19 and ordered an en banc re-hearing.
9th Circuit
* The 9th Circuit has also followed the 7th Circuit and found Blakely applicable to the federal guidelines.
In reversing an upward departure for conspiracy to distribute methamphetamine sentence, the court found the remainder of the guidelines severable from the judge's post-conviction findings of fact.
8th Circuit
* Most recently, the 8th Circuit weighed in, holding the federal sentencing guidelines wholly unconstitutional. The defendant's conviction for mail fraud, money laundering and securities fraud was affirmed, but the case was remanded to a U.S. District Court for re-sentencing.
"All previous cases upholding enforcement of the guidelines considered separate issues unrelated to the issue resolved by Blakely. Certainly, defendants have no weaker rights under the Sixth Amendment against the federal government than they do against the states," the court said.
The court said that on remand, the guidelines should only be used for advisory purposes but are not binding, as they "were designed as an integrated regime, and therefore cannot be severed into constitutional and unconstitutional parts while still remaining true to the legislative purpose."
U.S. Court of Appeals, 7th Circuit. U.S. v. Booker, No. 03-4225. July 9, 2004. Lawyers Weekly USA No. 9928711.
U.S. Court of Appeals, 11th Circuit. In Re Dean, No. 04-13244. July 9, 2004. Lawyers Weekly USA No. 9928731.
U.S. Court of Appeals, 5th Circuit. U.S. v. Pineiro, No. 03-30437. July 12, 2004. Lawyers Weekly USA No. 9928712.
U.S. Court of Appeals, 2nd Circuit. U.S. v. Penaranda, No. 03-1055. July 12, 2004. Lawyers Weekly USA No. 9928710.
U.S. Court of Appeals, 6th Circuit. U.S. v. Montgomery, No. 03-5256. July 14, 2004. Lawyers Weekly USA No. 9928713.
U.S. Court of Appeals, 9th Circuit. U.S. v. Ameline, No. 02-30326. July 21, 2004. Lawyers Weekly USA No. 9928743.
U.S. Court of Appeals, 8th Circuit. U.S. v. Mooney, No. 02-3388. July 23, 2004. Lawyers Weekly USA No. 9928745.
Questions or comments can be directed to the writer at: cstephenson@lawyersweekly.com.