Although all involved in the criminal justice system, are abuzz about the Blakely Decision and the soon to be decided Booker, et al cases, I still have some fears. The following is a quote from Blakely then stirs my concern:

"JUSTICE BREYER argues that Apprendi works to the detriment of criminal defendants who plead guilty by depriving them of the opportunity to argue sentencing factors to a judge. Post, at 4–5. But nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. See Apprendi, 530 U. S., at 488; Duncan v. Louisiana, 391 U. S. 145, 158 (1968). If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty. Even a defendant who stands trial may consent to judicial factfinding as to sentence enhance-ments, which may well be in his interest if relevant evi-dence would prejudice him at trial."

What is to stop the government from insisting that a defendant who wishes to plead guilty waive his Apprendi rights as well as stipulate that the court is permitted engage in judicail factfinding? Obviously, any defendant is free to waive any of their constitutional rights, but quite often these "free and voluntarily" waivers result from the firm and absolute insistence by the government----as a condition to a plea. Unless the Supreme Court strikes down the USSG's as facially unconstitutional---rather than as applied to a given set of facts----I wonder if many people will truly reap the benefit that Blakely purports to provide.

I couldn't agree more. I have believed from the start that only those persons who happened to be in direct appeal at the time Blakely was decided will benefit from Blakely's ruling. For everyone else, the AUSA will just learn to work around the ruling, just like it has on every other major supreme court ruling for the past 200 years.

The applicability of Blakely to the Federal Sentencing Guidelines and possible retroactivity under Teague v. Lane are two very distinct issues. The first may very well be decided with Booker/Fanfan. The second would required a finding that Blakely did not merely identify a procedural right. It would be impossible to speculate. We must all just wait.

Retroactivity is not the issue---nor will it be. I dont think anyone with a reasonable degree of intelligence, experience or common sense fully expects or anticpate that the Supreme Court will fashion a decision in Booker/Fanfan that will through open the prison doors for all those presently incarcerated under the USSGs. But it then again some people find comfort and even perhaps make a living selling false hope.

The issue raised in my thread was that the AUSA will simply do a workaround on a plea REQUIRING consent to Judicial factfinding and all the fanfare over FANFAN was for naught.

It would be nice if the two of you could get along. You both always raise good points and ideas. You know what they say, two people who are so alike cannot usually get along. :D or something to that effect. Maybe we will see the two of you at a PTO conference someday!

Personal attacks, especially those coached in sarcasim, are not appropriate in this forum.

I attended a Blakely symposium last weekend at Stanford Law School that included various law professors and others intimately concerned with this developing area.

The consensus, as far as retroactivity goes, is that if the eventual opinion in Booker & Fanfan has the effect of creating substantive rights - there would in all likelihood be retroactivity under Teague v. Lane. In the event that the rights are deemed to be procedural, it then depends upon whether they are fundamental or watershed. Both are terms of art. This is a very complicated area.

My point is that it is expected that the opinion will not directly address retroactivity. Accordingly, much more litigation is on the horizon.

Just because someone doesn't share one's opinion, is no reason to stoop to personal attacks. I hope this will be the last time.

Again, I state that your response---initial and subsequent----has nothing to do with the issue raised. The procedural v. substantive dichotomy as to retroactivity is NOTHING new and will not be an issue in post Booker years----unless of course the Court determines that as a matter of constitutional policy and jurisprudence that it is wise to inundate the Federal courts with over a million claims for damages and prospective emergency relief. Again, the issue raised is the government's response to a loss and the further erosion of substantive rights through slight of hand....but thanks for insights of the Stanford law staff.

I do not share your opinions regarding these matters. Also, for your information, this symposium at Stanford (although facilitated by a Stanford professor), was attended by just about every academic involved in this area - as well as Jeff Fisher (counsel for BOTH Blakely and Crawford), the Deputy Solicitor General of the United States (who argued BOTH cases). I assure you that - even if not adressed directly - retroactivity will be an issue. Yes, these are Gov't scare tactics, but perhaps this is why the Gov't hopes that the guidelines are struck down entirely (cleaner) than made advisory, with jury findings - beyond a reasonable doubt - required for sentence enhancements (offender vs. offense characteristics). There is simply no authority - especially at this juncture - to believe that it is even possible to - for example - waive a jury and have a judge make these finding - even by the reasonable doubt standards.

Once again, this is a very complicated and rapidly developing area - most are easily confused, and it takes a great deal of focus, time, intelligence, direct experience and interaction with others' possessing these facilities to even be conversant on some of the subtle issues. I try to keep up - but the academics do nothing else.

We'll have to wait and see what SCOTUS says.

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.