How can you represent criminals?

An interesting post here at Ernie the Attorney on "Musings on our criminal justice system" reminded me of the common experience that criminal defense lawyers have, of running into persons who always seem to wonder what went wrong with us that we ended up representing "criminals." Of course, when their son is busted, or the husband is charged with some fraud, they all receive a bit of shock therapy and commence to open their eyes to the "injustices" of the criminal justice "system" (in their case) and the importance of having a defense lawyer to fight the government every inch of the way. After all, they are not like those criminals I represent, and what they did should not be punished as if they were a criminal. "I didn't kill anyone." Right!

Should Justice Breyer Recuse Himself from the Blakely challenges to the federal sentencing guidelines?

Ken Lammers at CrimLaw has an interesting post here questioning whether Judge Wilkins of the 4th Circuit and Justice Breyer should recuse themselves from cases raising Blakely in relation to the federal sentencing guidelines. It is an interesting read, in particular, for this quote from United States v. Glick, 946 F.2d 335 (4th Cir. 1991) (Chief Judge Wilkins affirms his ability to pass judgement on the proper application of the guidelines even though he was then sitting on the Sentencing Commission):

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?!

"Justice Scalia, Meet the Framers"

As the Blakely fallout continues in the lower courts, on July 26th Washington State peitioned the Supreme Court for rehearing in Blakely. The petition itself argues that the historical underpinnings the Court found in Apprendi (and adopted by reference in Blakely) were simply wrong. Ouch! Nino, are you reading? It is worth reading, although I doubt it will go far, and you can find it here at Blakely Blog. After Judge Scalia's barbs at Justices O'Connor and Breyer in Blakely, I can only wonder how many votes it takes to grant a petition for rehearing.

DOJ Blakely Waivers are Unconstitutional to the Extent they Pretend to Achieve Validity from a Defendant's Waiver of the Burden of Proof

Over at Sentencing Law and Policy, I ran into this interesting comment here by Marcia, to one of Professor Berman's posts re US v. Mooney (8th Cir.):

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, it’s 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 they’re 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.

New blog for PRACDL

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.

Insubordination in the 9th Circuit?

Apparently at least one district judge within the 9th Circuit does not want to heed the 9th Circuit's Ameline holding, as reported here in The Recorder. S/He remained anonymous.

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.

Ameline and those Blakely Waivers

What I found most interesting in the 9th Circuit's opinion in U.S. v. Ameline, was that the court not only agreed with the idea of sentencing juries, but -even more important- that the court indicates that even if the defendant waived his right to the sentencing jury, the Court still had to find any sentencing enhancing facts using the beyond a reasonable doubt standard. See slip op. at n.19, p. 34. Keep this in mind when presented with those Blakely waivers.

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

The Concurrent Resolution passed by Congress, requesting that the Supreme Court pass upon the constitutionality of the federal sentencing guidelines, includes the following language:

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;

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.

El Vocero de Puerto Rico poll: "How do you rate the judicial capacity of our judges?"

El Vocero (Spanish language daily) is currently running an online poll asking "How do you rate the the judicial capacity of our judges?" (Although the poll question does not distinguish, we believe this poll refers to Commonwealth of Puerto Rico Judges, and not to the federal Judges in Puerto Rico, who have usually ranked very high with the public.) At least as of 7:51 a.m., the sad results were as follows:

Buena (Good) 43
Excelente (Excellent) 5
Deficiente (Deficient) 67
Total 115

Booker and Fanfan Cert Petitions filed by SG

Today, as had been anticipated, the Office of the Solicitor General filed the petition for writ of certiorari in U.S. v. Booker, No. 04-104 (7th Cir.), and the petition for cert. before judgment in U.S. v. Fanfan, No. 04-105 (from D.Me. - appealed last week to 1st Cir.).

The Questions Presented are the same in both cases and are as follows:

1. Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.
2. 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.

Blakely waivers - Jury Trial Right and Burden of Proof

Every Blakely waiver I have taken a look at provides for a waiver of defendant's right to have a jury determine sentencing factors/elements beyond a reasonable doubt, and to have the sentencing court make a determination using the preponderance of the evidence standard. One could make the argument that it is one thing to allow the Court to make the determinations, but quite another to let the Court make such determinations using a lower burden of proof. Has anyone found a government attorney and/or a judge willing to have the enhancing factors found by the court using a beyond a reasonable doubt standard? What about findings that lower the range of punishment, can they be found by a preponderance while sentencing enhancing factors must be found beyond a reasonable doubt? And what if at trial the government wanted the jury to pass upon, say, a leadership or managerial role in the offense; should that be allowed to be submitted without also including all the alternative mitigating or neutral role adjustments? And do mitigating role adjustments have to be found by a preponderance or beyond a reasonable doubt?

Dumbbells Result in Product Liability

I received an e-mail from FindLaw with some headlines, one of which read as follows:

PRODUCT LIABILITY Company Recalls 1.2 Million Dumbbells http://news.findlaw.com/ap/o/1110/7-20-2004/20040720033003_14.html

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!

Enjoy your pizza!

I invite all of you to go to the ACLU's Summer Surveillance Campaign page and watch this short movie, while you enjoy your pizza! Be sure to turn on the volume.

It's Booker and Fanfan to the S.Ct. (plus other Blakely updates)

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.

The irony of it all if it is Fanfan that the Court takes up

As reported in Sentencing Law and Policy citing an e-mail posted on the NACDL list-serve from Rosemary C. Scapicchio, attorney for Ducan Fanfan, it appears that the Office of the Solicitor General may request direct review before the Supreme Court of U.S. v. Ducan Fanfan, (D.Me., June 28, 2004) (partial sentencing transcript can be found here) by distinguished Judge D. Brock Hornby, District of Maine (with chambers always awaiting him in Puerto Rico). The e-mail reads as follows:

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.

Other than for D.Mass Chief Judge William G. Young, who anticipated Blakely in his June 18, 2004 Sentencing Memoranda in U.S. v. Richard Green, et al., Judge Hornby was the first - to my knowledge - to quietly and without fanfare apply Blakely's holding to the federal sentencing guidelines in Fanfan.

Now, if it is Fanfan that goes on direct appeal to the Supreme Court, by-passing the First Circuit, there's some irony in it all.

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.

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.

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.

Might the Court select a Washington State case to let the Almendarez-Torres shoe drop?

Ever since Apprendi, many have been waiting for the other shoe to fall and for the Court to overrule Almendarez-Torres. In defining what "statutory maximum" meant for Apprendi purposes. the Court in Blakely reiterated Apprendi's rule of "other than the fact of a prior conviction ..." Check out this article about a post-Blakely case, also courtesy of Washington State, and muse over whether it will reach the Court and allow it to overrule Almendarez-Torres?

US v. Hector Penaranda and Luis Rojas, No. 04-59

SCOTUS docket for United States, Petitioner v. Hector Penaranda and Luis Rojas, No. 04-59

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

Puerto Rico's Political Parties' Shenanigans

In Sánchez-López v. Governmental Development Bank, No. 03-1865 (1st Cir. July 15, 2004), the First Circuit displays a full grasp of the shenanigans of Puerto Rico's mayor political parties. These things happen in many other places, but is it this bad anywhere else?

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.

Welcome to Macondo!

The Volokh Conspiracy on US v. Councilman

From The Volokh Conspiracy, an excellent post by Orin Kerr on the First Circuit's recent 2-1 opinion United States v. Councilman, slip op. No. 03-1383 (1st Cir. June 29, 2004). Judge Torruella wrote the majority opinion, joined by Senior Judge Cyr, with Judge Lipez dissenting. In the post it states in part:

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.

4th Circuit Joins the Fray

As reported in Blakely Blog, the 4th Circuit has scheduled rehearing en banc in United States v. Mohamad Y. Hammoud (Mullen), No. 03-4253, for Monday, August 2d, after supplemental briefing, on the effect of Blakely v. Washington.

Analysis of the various routes to Blakely review of the federal sentencing guidelines by the Supreme Court

SCOTUSBlog has a very interesting post here in which they analyze 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.

Blakely's perhaps telling reference to 21 U.S.C. §§841(b)(1)(A), (D)

If Blakely did not apply to the federal sentencing guidelines, why would Justice Scalia use, of all statutes he could have used as an example, 21 U.S.C. §§841(b)(1)(A), (D) -a federal statute- in the majority opinion? See Blakely, slip op. at 15.

The Guidelines are "Guidelines" from now on, the 6th Circuit Says

The Sixth Circuit has spoken in U.S. v. Montgomery, No. 03-5256, 2004 FED App. 0226P (6th Cir.) stating that:

[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 Commission’s 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,” Webster’s 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.

USSC statistics & get ready for a "fix"

Professor Berman at Sentencing Law and Policy had this to say:

"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.'"

At least he is true to himself

Did Scalia finally succumb in Blakely? Here are his observations as to restrictions on the judiciary:

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).

Blakely and its Chaos in the News

News articles re: Blakely: Washington Post "High Court Decision Sows Confusion on Sentencing Rules" by Dan Eggen and Jerry Markon; The New York Times "Justices' Sentencing Ruling May Have Model in Kansas" by Adam Liptak; USA Today "High court ruling sows confusion Decision has cast doubt on state, federal sentencing guidelines" by Joan Biskupic; Seattle Post-Intelligencer "'Utter chaos' means less-severe sentences for serous crimes - Judges try to discern how badly the system has been upended" by Tracy Johnson; The Tampa Tribune "Confusion Rules In Federal Courts" by Elaine Silvestrini; and at Slate "Run-on Sentencing - The barely noticed mayhem following the Supreme Court's Blakely decision." by Gerald Shargel.

New Bush Nominee

An article in the Spoof states that: "In a surprise press conference today, President George W. Bush announced the nomination of Satan as his judicial nominee for the 4th District in North Carolina."

FPD Chat on Blakely

The Federal Public Defender's Office will be holding a brief discussion on Thursday, July 22, 2004, from 4:00 to 5:00 p.m. on Blakely: "Have the Federal Sentencing Guidelines, as we know them, ceased to exist?" Speakers will be attorneys Héctor E. Guzmán and Patricia Garrity. YOU MUST CONFIRM ATTENDANCE CALLING OR E-MAILING MS. WARD, OR ELSE SHE WILL NOT LET YOU IN. P.S.- THIS ALSO HAPPENS TO BE JOE LAWS' BIRTHDAY, SO THEY BETTER HAVE A GOOD PARTY AFTERWARDS FOR ALL ATTENDING. HE ACTUALLY EXPECTS GIFTS FROM ALL OF US!

Fast and Furious in the Face of Chaos

We already have a circuit split - Booker in the 7th and Pineiro in the 5th. And we had one case, Restrepo v. US, No. 04-5106,docketed on July 9 before the Supreme Court, which raises Blakely's footnote 9 issue, i.e., the constitutionality of the USSG regarding enhancements. Restrepo is from the Second Circuit. NACDL is considering an Amicus Curiae brief. To get matters really rolling, today the 2d Circuit, sitting en banc, unanimously voted to certify certain Blakely issues to the Supreme Court in US v. Penaranda. See Sentencing Law and Policy . It is said elsewhere, see SCOTUS Blog, that the Supreme Court discourages the use of this certification mechanism, but this is a unanimous request from the en banc 2d Circuit, so we'll see. But, as also pointed out in SCOTUS Blog, the curious thing is that the questions certified did not include the questions of severability should the Supreme Court determine that the upward adjustments in the guidelines violated Blakely and the right to have a jury determination of these factors. I note that the 2d Circuit certification request cites D.Mass. Chief Judge William C. Young's pre-Blakely opinion in US v. Richard Green. In the meantime, Judge Paul Cassell has issued his third Croxford opinion, which also discusses Booker (7th Cir.)(particularly Judge Easterbrooke's dissent), and Pineiro (5th Cir.), the latter of which was issued only hours before Croxford III. Go here for all three Croxford opinions. My opinion is that the Supreme Court will not grant the certification, and that Congress will pass legislation making the guidelines, well, guidelines, for now, to see how it all plays out in the Courts until the Supreme Court ultimately decides.

Letter from ABA President to Sen. Hatch re: Blakely

The folks at TalkLeft have posted the following "Update: ABA President Dennis Archer sent Sen. Hatch this letter today in advance of tomorrow's Senate Judiciary Committee hearing. Some quotes:

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."

And we want guideline issues submitted to juries?

United States District Court for the District of Puerto Rico - PROBATION SERVICES has this to say of the Sentencing Guidelines:

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!

Judge Cassell to testify at Senate Judiciary Committee hearing on Blakely

We have learned that District Judge Paul Cassell, D.Utah, who wrote the opinin in US v. Croxford, will be one of the witnesses testifying tomorrow before the Senate Judiciary Committee hearing on Blakely and the future of the federal sentencing guidelines. This is not surprising, given that he has strong conservative ties, and that Sen. Orrin Hatch, R-Utah, presides over the Judicary Committee. See my earlier post as to where to link to these hearings.

5th Circuit Upholds Constitutionality of Guidelines

Today the 5th Circuit issued its opinion in US v. Pineiro holding that Blakely does not apply to the federal sentencing guidelines, stating as follows:

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.

Senate Judiciary Committee to Meet on Blakely and Guidelines' Future

Don't Forget that on Tuesday, July 13 at 10:00 a.m. the Senate Judiciary Committee will hold hearings to examine Blakely v. Washington and the future of the federal sentencing guidelines. If you do not get it on C-Span, try CapitolHearings.org and you can view it online.

Beware what you ask for . . .

See the post by Professor Berman at Sentencing Law and Policy: Harsher post-Blakely sentences? referring to a Newsday article that tells of one judge who agreed that the guidelines were unconstitutional, discarded them, and then imposed the "statutory" statutory maximum. Beware what you wish for ...

Drug Points to Start Carding Customers?

More Mandatory Minimums? Even before Blakely was decided, Rep. James Sensenbrenner (R-Wis.) introduced a bill that would increase from one year to 10 the mandatory minimum sentence for anyone 21 or older who sells any amount of a controlled substance (even a single joint) to someone under 18. A second offense of this sort would trigger a mandatory life sentence.

El Boadil del Jurado

El pasado 6 de junio de 2004, El Vocero publicó una noticia sobre el caso del Represenatante Oscar Ramos en la que se menciona de un procedimiento relacionado a la selección de jurados en los tribunales boricuas, que no disfrutamos en la Corte Federal. EL VOCERO de Puerto Rico: "... y el abogado pidió entonces que se le concediera hacer un boadil por separado al jurado."

Blakely and the Legal Olfactory Test

In law, there is such a thing as a "smell test." Sometimes it comes from what is said or written by someone, other times it comes from who that someone is. My first post in this blog asked the following question: "Will defendants as a whole ultimately benefit from Blakely or will they be worse off?" In other words, despite the fact that Blakely seemed to be to the benefit of criminal defendants, there was a bad smell to it. When I then read the US v. Croxford opinion by U.S. District Judge Paul G. Cassell, I thought his approach was a stinking bad omen for criminal defendants. Today, there is a story here about Judge Cassell which only confirms my smell test, and his bio is here. Judge Cassell appears to be a very bright judge of the worst kind: one of those who use their smarts to push an agenda, and his is a very anti criminal defendant one. I hope I am wrong about him and my long term view of Blakely, but that is what I smell now.

FedCrimLaw and USSGuide

I invite you all to subscribe to FedCrimLaw and its sister site USSGuide. You will also receive their fantastic Punch & Jurists newsletter either by e-mail (PDF attachment) or snail-mail (hard copy). The cost is $199 per year, and it is well worth your investment. These is really for federal criminal defense lawyers, and the folks there are top notch. Take a tour, check it out as a visitor, and call me or them if you have any questions. These are federal defense lawyers, not prosecutors. Now do it!