Saturday, July 31, 2004
Thursday, July 29, 2004
Should Justice Breyer Recuse Himself from the Blakely challenges to the federal sentencing guidelines?
In an earlier case involving the appeal of a sentence, Chief Judge Stephen G. Breyer, United States Court of Appeals for the First Circuit, and former member of the Sentencing Commission, sua sponte raised the question whether he should disqualify himself from hearing that appeal. United States v. Wright, 873 F.2d 437, 445 (1st Cir. 1989) (Breyer, J., writing separately). Judge Breyer, who was extensively involved in the drafting and promulgation of the guidelines and policy statements that applied to the sentence in question, concluded that it would be proper for him to continue to participate in appeals in "typical Guidelines cases, unless they involve a serious legal challenge to the Guidelines themselves." Id. at 447. I agree.Emphasis added. As Ken Lammers concludes, what more serious legal challenge to the guidelines than the possibility that they may be held not severable and struck down altogether?!
Tuesday, July 27, 2004
Sunday, July 25, 2004
DOJ Blakely Waivers are Unconstitutional to the Extent they Pretend to Achieve Validity from a Defendant's Waiver of the Burden of Proof
Maybe its just me, but I think both the majority and dissent are off-base. Severability shouldn't even be in the equation. The guidelines can continue to be applied under Blakely, but only to the extent that a defendant is sentenced for conduct involving facts that were either admitted or indicted, and proved beyond a reasonable doubt to a jury (or judge, if a defendant consents to a trial by the court). The import of Apprendi and Jones is that reliance on a fact that increases a defendant's sentence beyond the maximum elevates that fact to the status of an element. Blakely simply clarifies that the maximum is not the technical maximum in the criminal code statute (that wasn't really involved in the process anyway) it is the maximum that a judge could impose without relying on the fact (i.e., the Guideline range). So, all it means is that the government simply has to prove their case. If they want a higher sentence, they have to charge it and prove it. This really isn't about the sentencing guidelines or determinate sentencing at all . . . its basic criminal law and procedure and basic constitutional law. In implementing the Guidelines, courts, prosecutors and everyone else just forgot about the elements of a crime. Scalia's opinion is just getting back to basics. Blakely is completely consistent with the other pronouncements by the Supreme Court on the subject of elements of a crime. Read Jones, Apprendi, Ring and Sattazahn. Also take a look at Cotton, Gaudin (Scalia opinion), Sullivan v. Louisiana, Mullaney and Scalia dissent in Monge. Everything makes sense when the enhancing facts (those that increase the newly defined maximum) are regarded as elements. Also, everybody is making a big deal out of the jury aspect (which, of course, was the only thing addressed in Blakely) when the really big deal, and probably the impetus for these recent holdings by the Supreme Court, is the fact that the Fifth Amendment Due Process Clause imposes on the government a duty to prove every element beyond a reasonable doubt. Many of the outrageous sentences that occurred under the guidelines were based on so-called evidence that wouldn't even satisfy a preponderance standard. It is that effect on fundamental fairness coupled with prosecutorial over-reaching that has been most troubling about the Guidelines. But, we shouldn't throw the baby out with the bathwater. The guidelines can be okay if enforced within the parameters of proving every element beyond a reasonable doubt (of course, defendants can and will still plead to facts when it is clear that the government could prove them beyond a reasonable doubt anyway). The government's unequal bargaining position will be brought in line under these constitutional constraints. Also, a defendant can consent to a trial to the court, but he can't consent to a conviction on only a preponderance of evidence (again assuming the fact is an element) or else the evidence wouldn't be sufficient to hold up on appeal. (Where sufficiency of evidence is reviewed on a beyond a reasonable doubt standard). Yes, you say, but a defendant can waive his Constitutional rights, surely he can waive the preponderance standard? No, because its not the defendant's right, its the government's burden. The defendant's option is to admit the fact if he doesn't want to put the government to its proof. These are just some of my thoughts, for what theyre worth. -an interested attorney.(emphasis added). I cannot agree more with Marcia. It seems to me that too few are discussing in depth the matter fo Blakely waivers and the way in which defendants are being placed in a situation of waiving the burden of proof or facing a sentencing jury.
I invite all of my Puerto Rico defense attorney visitors to take a look at the new blog for the Puerto Rico Association of Criminal Defense Lawyers. I'll be the administrator, and hope to get a few PRACDL members lined up in a few days.
Thursday, July 22, 2004
But not everyone was so sure the opinion would clear up the confusion. "It stops sentencing dead in its tracks in certain types of cases. ... The only thing a judge can do is impose a sentence that is the minimum," said one district judge within the 9th Circuit who asked to remain anonymous. "District court judges should move very slowly in sentencing to allow the Supreme Court to speak on this."Whether one agrees with the Judge's views or not, we wonder whether it is proper for district judges to decide to overlook Circuit precedent by delaying proceedings in order to await a decision from the Supreme Court. The 9th Circuit was obviously aware, when it ruled in Ameline, as was every prosecutor, federal judge, and criminal defense lawyer, that the SG would be filing petitions in Booker and Fanfan before the Supreme Court -even if these were not filed until some hours after the Ameline opinion issued. If the 9th Circuit panel -albeit a divided panel- felt it should wait for the Supreme Court, it could have done so.
The commentary to § 6A1.3 explains “The Commission believes that use of a preponderance of the evidence standard is [*29] appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case.” To the extent that, as a result of Blakely, predicate factual determinations must be made by the reasonable doubt standard before § 2D1.1(c) and § 2D1.1(b)(1) can be applied, this commentary conflicts with the Sixth Amendment and is unconstitutional as applied in certain circumstances. Section 3742 providing for appellate review of district court sentences under the Guidelines appears to contemplate that it is the district judge’s responsibility to make the requisite findings of fact at sentencing. See 18 U.S.C. § 3742(e) (courts of appeals “shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous . . . .”); see also Fed. R. Crim. P. 32(i)(3)(B) (district court “must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute”). The assumption behind this provision (and Rule 32), that the district court will make the requisite findings of fact, is unconstitutional under Blakely in cases absent a jury waiver.Id. at 28-29.
Concurrent Resolution by Congress - Severability, and why 2 cases were necessary for SG to take to SCt
As pointed out in SCOTUSBlog, the Resolution "express[es] the current Congress's view on the severability question raised in the SG's petitions." It goes on to explain why "as a strictly legal matter" the Resolution should not have no effect on the Court's ruling on the issue of the guidelines severability. "That question depends upon a special sort of calculation of what the enacting Congress 'intended' in the event part of the statute were rendered inoperative -- sometimes described as a question about what the enacting Congress would have done had it known of the Court's eventual constitutional ruling. This is the way the Court has put the point for many decades now: 'Unless it is evident that the Legislature would not have enacted those provisions which are within its power [i.e., are constitutional], independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.' See, e.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987)." SCOTUSBlog also has an interesting post here on why the certified questions from the Second Circuit in Penaranda and Rojas were not a good vehicle for the Court to address the issues presented by the SG. It also covers why two cases -Booker and Fanfan- were necessary, and how if yesterday's 9th Circuit decision in Ameline had come down sooner, that would have been the case for the SG to take to the Court instead.
Whereas the statutory maximum penalty is the maximum penalty provided by the statute defining the offense of conviction, including any applicable statutory enhancements, and not the upper end of the guideline sentencing range promulgated by the Sentencing Commission and determined to be applicable to a particular defendant;
Whereas both Congress and the Sentencing Commission intended the Federal Sentencing Guidelines to be applied as a cohesive and integrated whole, and not in a piecemeal fashion;
Buena (Good) 43
Excelente (Excellent) 5
Deficiente (Deficient) 67
Wednesday, July 21, 2004
- Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judges determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.
- If the answer to the first question is yes, the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.
In addition, the government has moved for expedited consideration of these petitions, and, if granted,for an expedited briefing and hearing schedule. You can find links to PDF copies of all of these documents here at Sentencing Law and Policy.
It was expected that the questions presented would be of a targeted scope. Obviously, even if the Court answered said Blakely applies to the federal sentencing guidelines and then went on to address the issue of severability, regardless of its holding in the latter question there would still be much to resolve, be it in Congress and/or before the Courts.
I can imagine there would be a product liability issue looming if the company recalls 1.2 million Dumbbells back to work! Who runs that company? Sounds like another dumbbell!
PRODUCT LIABILITY Company Recalls 1.2 Million Dumbbells http://news.findlaw.com/ap/o/1110/7-20-2004/20040720033003_14.html
Tuesday, July 20, 2004
The New York Times has an article today here (registration required) reporting that Acting Solicitor General Paul D. Clement plans to take both the Booker case from the 7th Circuit, and the Fanfan case from the District of Maine (Judge D. Brock Hornby) to the Supreme Court, and has already cleared with the Court an expedited briefing schedule with the goal of oral argument held the first week of October.
In a separate development the 6th Circuit has ordered rehearing en banc in the U.S. v. Montgomery, in which the panel had concluded that the guidelines were to be just that, "guidelines."
A polling of various defense attorneys in San Juan today revealed that the only District Judge here to have apparently sentenced a defendant with Blakely issues involved, is Judge Salvador E. Casellas. Apparently he followed the holding of Blakely as Judge Hornby -in Fanfan- (and many other Judges) have interpreted it: upward adjustments neither admitted to by the defendant, nor found by the jury beyond a reasonable doubt are out of the calculus.
If anyone has any information regarding other sentencing hearings with Blakely issues in D.P.R., please post a comment to this post.
Sunday, July 18, 2004
I received a message from Michael R. Dreeben from the Solicitor General's Office on Friday. They claim they are considering appealing Fanfan's sentence directly to the Supreme Court. We did not file an appeal because we got the benefit of Blakely. That makes this case a pure sentencing issue. Dreeben is asking about cross-appeal. Claims he has spoken to the Supreme Court and has tentatively set a schedule as follows: Government to file their petition by August 2, 2004. Fanfan response due in 10 days. Government will file it's brief by end of August. Fanfan by September. Argument the first Monday in October. I have not officially responded because I am looking for everyone's input and I need to speak to Fanfan. Any and all suggestions welcome.
Judge D. Brock Hornby was one of six judges named by Chief Justice Rehnquist to serve on a high-level panel investigating the handling of judicial misconduct. The panel is headed by U.S. Supreme Court Justice Stephen G. Breyer. As reported in the Portland Press Herald on June 1, 2004:
The committee's mission is to "evaluate how the federal judicial system is dealing with judicial misbehavior and disability," according to a statement by court administrators.Judge Hornby was already appointed to the committee at the time he decided Fanfan. Will Rep. Sensenbrenner next request that he step down and that the committee investigate him for imposing an "illegally lenient sentence" in violation of the federal sentencing guidelines? We would like to think that someone in Mr. Sensenbrenner's position would instead step back at this juncture and seize the moment and the opportunity to let others who know better establish federal sentencing policy. Blakely presents a great opportunity to change much that is very, very wrong with federal sentencing policy and save much that is very good about the guidelines. Mr. Sensenbrenner has repeatedly shown simply does not grasp the problems created by mandatory minimums. Mr. Sensenbrenner, with all due respect, quietly step aside, please.
The panel was created by U.S. Supreme Court Chief Justice William Rehnquist in response to criticism from House Judiciary Committee Chairman F. James Sensenbrenner, R-Wis.
In a speech to the federal judiciary that Rehnquist attended, Sensenbrenner called one recent investigation of misconduct charges a "whitewash," and threatened further action.
Sensenbrenner raised concerns about the handling of complaints regarding a district court judge who allegedly handed out illegally lenient sentences in violation of federal sentencing guidelines.
Friday, July 16, 2004
Docketed: July 13, 2004
Lower Ct: United States Court of Appeals for the Second Circuit
Case Nos.: (03-1055 (L), 03-1062 (L))
Status: PENDING CONFERENCE
Thursday, July 15, 2004
Welcome to Macondo!
Puerto Rico has two major political parties that dominate the electoral landscape: the Popular Democratic Party (PDP) and the New Progressive Party (NPP). Control of the government periodically switches between the two parties. Entirely too often, the political party assuming office terminates the employment of public employees who are affiliated with the party going out of power and then fills those vacancies with its own members. By the same token, the outgoing party attempts to secure the continued tenure of its members in public jobs through a variety of devices, such as reclassifying policy-type appointments as career positions or making appointments in violation of Puerto Rico law.
Despite the thirty years since Elrod, administrations in Puerto Rico have continued to take employment actions against public employees because of their political affiliations. With each change in administration -- at both the commonwealth and municipal levels -- the federal district courts in Puerto Rico are flooded with hundreds of political discrimination cases, many of which are appealed. See, e.g., Gomez v. Rivera Rodriguez, 344 F.3d 103 (1st Cir. 2003) (claims by 24 NPP members who were fired from municipal jobs after the PDP won the 2000 mayoral election in Gurabo); Acevedo-Garcia v. Vera-Monroig, 351 F.3d 547 (1st Cir. 2003) (claims by 82 NPP members who were fired from municipal jobs after the PDP assumed power following the 1996 mayoral election in Adjuntas); Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97 (1st Cir. 1997) (claims by six PDP members who were fired after the NPP won the 1992 general election); Kauffman v. P.R. Tel. Co., 841 F.2d 1169 (1st Cir. 1988) (claims by ten NPP members who were fired after the PDP won the 1984 general election). The practice is so pervasive that jury awards in cases of political discrimination threaten to bankrupt local governments in Puerto Rico. See Acevedo-Garcia v. Vera-Monroig, 368 F.3d 49, 55 n.7 (1st Cir. 2004) (verdict exceeded town budget). And yet the culture of political discrimination continues.
Wednesday, July 14, 2004
Why is this decision a big deal? It's a big deal because the line between the Wiretap Act and the Stored communications Act doesn't just regulate ISPs. It regulates everybody, including federal and state criminal investigators. The Justice Department and Congressional staffers have interpreted the Wiretap Act quite broadly and the Stored Communications Act quite narrowly, and based both existing practice and recent legislative amendments on that understanding. When I was at DOJ advising agents on this sort of thing, the informal yardstick was that when a law enforcement agent planned a series of accesses to a file or account, the repeated series of accesses triggered the Wiretap Act rather than the Stored Communications Act. So in a pre-Councilman world, an FBI agent couldn't make an end-run around the Wiretap Act by lining up a bunch of warrants and executing them once every ten minutes. This approach remained true to the Supreme Court's decision in Berger and also ensured that the strong privacy protections of the Wiretap Act were not gutted by end-runs around the statute.
There are rumors afoot that Congress may step in and fix this problem soon. Fortunately, the politics are a win-win: both DOJ and civil liberties groups want the prior understanding restored. There is even proposed statutory language floating about that would do the trick quite nicely. Let's hope that Congress acts sooner rather than later. Stay tuned.This is certainly a must read post.
Analysis of the various routes to Blakely review of the federal sentencing guidelines by the Supreme Court
No one but the Justices themselves can say with confidence what will happen next at the Court, but it is reasonable to assume that the Justices would rather avoid dealing with Blakely’s aftermath by the method suggested by the Second Circuit. [...] But how would the Court answer that ultimate question, if not by giving the Second Circuit an answer in response to its formal query Monday? The answer probably would be to agree to hear a prompt appeal by the Justice Department, through Acting Solicitor General Paul Clement, seeking direct review of a District Court ruling striking down the Guidelines on the basis of Blakely. That would bypass Circuit Court review, bringing the issue swiftly to the Justices by a process they prefer, a process that is not nearly as rare – or as suspect – as the certified question method. (There are at least some tentative signs that this alternative may actually be in the works.) An obvious candidate for such a “cert. before judgment” order would be United States v. Croxford, a decision by U.S. District Judge Paul Cassell of Utah on July 7, setting aside the Guidelines as invalid, and proceeding to sentence upon the basis of pre-Guidelines sentencing law. The Court, of course, need not return from recess to take such a step: a conference call could bring the Justices together. Then, even a normal briefing schedule probably would not bring the case up for argument before October; an expedited schedule could get it up early in the new term. In the meantime, if Judge Sessions is right, the lower courts could handle the sentencing that needed to be done. By taking a case directly from a District Court rather than granting review of a Court of Appeals decision (e.g., the 7th Circuit's ruling in U.S. v. Booker), the Court would have before it one that had been given the fullest review by an actual sentencing judge. Moreover, the Croxford case would be the one that brought the most sweeping interpretation so far of Blakely, and one that is fully responsive not only to Blakely but to the Justice Department's views and to both the recent conflicting rulings on appeal by the 7th Circuit and the 5th Circuit. Thus, it would seem to be a more well-rounded vehicle for review. And, although this might not make any legal difference, a review of Cassell's decision would be an examination of the work of a judge who is a strong supporter of the Guidelines concept. Once the Court had granted review of such a case, the Court could simply dismiss the Second Circuit’s certificate – and, in the process, send the lower courts a reminder of how jealously the Justices guard their own prerogatives regarding their docket.
[I]n Blakely v. Washington, No. 02-1632, decided June 24, 2004, the Supreme Court made a sea change in the administration of the Federal Sentencing Guidelines. The court applied Apprendi v. New Jersey, 530 U.S. 466 (2000), to a state sentencing system that allowed a judge to find a fact that increased the federal sentence by 37 months. The Court held that determinate or fixed rule-bound sentencing, like the Federal Sentencing Commissions system, which increases sentences based on a requirement of judicial factfinding instead of jury fact-finding, violates the trial-by-jury requirement of the Sixth Amendment. [...] Therefore, in order to comply with Blakely and the Sixth Amendment, the mandatory system of fixed rules calibrating sentences automatically to facts found by judges must be displaced by an indeterminate system in which the Federal Sentencing Guidelines in fact become guidelines in the dictionary-definition sense (an indication or outline of future policy, Websters International Dictionary (3d ed. 1963)). The guidelines will become simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for. This solution to the immediate problem in federal sentencing is not inconsistent with the alternative position by the Deputy Attorney General in his memo to federal prosecutors, a memo forwarded to the federal judiciary on July 7, 2004. (In that event [when the guidelines may not be applied as mandatory rules], the government should urge the court to impose sentence, exercising traditional judicial discretion, within the applicable statutory sentence range with the recommendation in all such cases . . . that the court exercise its discretion to impose a sentence that conforms to a sentence under the Guidelines....) The Sentencing Reform Act of 1984, which gave rise to the present determinate sentencing system, does not by its terms require a mandatory, rule-bound system calibrating sentences to judicially-found facts. The statutory language would have allowed the creation of an indeterminate system in which the guidelines are simply considerations for Article III federal judges to access before passing sentence. The most important provision of the statute, section 3553(a) of Title 18, simply says that the court, in determining the particular sentence to be imposed, shall consider a large number of listed factors like the seriousness of the offense and the characteristics of the defendant, only one of which is the kind of sentence and the sentencing range established by the Sentencing Commission. In addition to the various factors that a judge should consider as listed in Section 3553(a), the next subsection counsels the judge to consider the aggravating or mitigating circumstances of the particular case. The Sentencing Commission itself interpreted the statutory language and converted this advisory language into the kind of mandatory rules of a determinate system of sentencing that the Supreme Court has now invalidated. In light of Blakely, and the language of the enabling act itself, a district judge should no longer view herself as operating a mandatory or determinate sentencing system, but rather should view the guidelines in general as recommendations to be considered and then applied only if the judge believes they are appropriate and in the interests of justice in the particular case.
"My own two cents: I found the Senate hearing very heartening with its consistently thoughtful and balanced discussion of many tough issues and its hints that at least a few Senators might want to re-think some major elements of the existing federal sentencing scheme. In the debate over the current 'chaos' and the need for a quick fix, I continue to think it is very significant that the USSC asserts 'that a majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely.' USSC Written Testimony at p.2 (emphasis added). Finally, since DOJ representative William Mercer's suggested that the time for legislative action might be in August, I am fearful that DOJ, if it feels that judges are low-balling sentences post-Blakely, will return to the Hill later this summer to seek a pro-prosecution 'fix.'"I would really like to see what the USSC is referring to when it states that the majority of federal sentences do not involve Blakely sentencing enhancements (assuming Blakely applies, which the USSC also states it does not). In my experience, I cannot make such an assertion. We should get these numbers from the USSC. Ever hear of relevant conduct, role in the offense, abuse of position of trust, weapons enhancements, enhancements based on amount of loss, etc.? And, even if only 20% involved Blakely factors, it would still be a big problem, I would think. I do agree with Professor Berman 100% as to his observation: "I am fearful that DOJ, if it feels that judges are low-balling sentences post-Blakely, will return to the Hill later this summer to seek a pro-prosecution 'fix.'"
But the Court does not wish to be fettered by any such limitations on its preferences. The Court's statement that it is "tempting" to acknowledge the authoritativeness of tradition in order to "cur[b] the discretion of federal judges,". . . is of course rhetoric rather than reality; no government official is "tempted" to place restraints on his own freedom of action, which is why Lord Acton did not say "Power tends to purify." The Court's temptation is in the quite opposite and more natural direction--towards systematically eliminating checks upon its own power; and it succumbs.Planned Parenthood v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting).
Tuesday, July 13, 2004
Monday, July 12, 2004
Appreciating the turmoil that Blakely has evidently produced in the federal courts, Congress may wish to declare the federal guidelines temporarily advisory. Under this short-term approach, any judicial finding of sentencing facts would not have the force and effect of law and would therefore, presumably, not contravene Blakely. In the longer term, our established ABA policy, which is reflected in the Criminal Justice Standards on Sentencing (3d ed.), supports an individualized sentencing system that guides, yet encourages, judicial discretion while advancing the goals of parity, certainty and proportionality in sentencing. Such a system need not, and should not, inhibit judges' ability to exercise their informed discretion in particular cases to ensure satisfaction of these goals. We are particularly opposed to any reform measures, whether interim or permanent, that compel waiver of Blakely rights. For example, a system that would require the court to impose the maximum sentence unless the defendant moved to be sentenced pursuant to the guidelines, would burden the constitutional right to a jury trial recognized in Blakely, and might well be regarded as an attempt to evade Blakely's holding. In any case, any law or policy that relies upon the ability to force defendants to waive their constitutional rights for its effect must be regarded as extremely problematic in a just society."
The United States Sentencing Guidelines are difficult to interpret for anyone not accustomed to their intricacies as the Sentencing Guidelines Manual provides a complicated format comprised of guidelines, policy statements, and commentaries, all of which vary as to purpose and legal effect. Additionally, because the Sentencing Guidelines are regularly revised and updated to meet the needs and demands of the criminal justice system more time is required to learn and understand those changes. Conversely, with the ever increasing demand on the federal criminal justice system to handle the onslaught of criminal cases, judges, defense and government attorneys, as well as, probation officers find it difficult to joggle time constraints with developing a basic working knowledge, let alone a level of expertise of guideline applications. To effectively mete out the challenges posed and problems incurred by all the parties involved in the federal sentencing process the Sentencing Guidelines Specialist serves as the Federal Sentencing Guidelines advocate.No wonder we want jurors to deal with the guidelines now!
This court assuredly will not be the final arbiter of whether Blakely applies to the federal Guidelines, but the unremitting press of sentencing appeals requires us to produce a decision. We have undertaken to discern, consistent with our role as an intermediate appellate court, what remains the governing law in the wake of Blakely. Having considered the Blakely decision, prior Supreme Court cases, and our own circuit precedent, we hold that Blakely does not extend to the federal Guidelines and that Pineiro’s sentence did not violate the Constitution. Accordingly, the defendant’s sentence is affirmed.