Vol. 11, No. 28	Covering Cases Published in the Advance Sheets through July 12, 2004

Blakely - Is There Light at the End of the Tunnel?

• On August 2, 2004, the Supreme Court granted certiorari in the two Blakely appeals filed by the Solicitor General - namely U.S. v. Booker from the Seventh Circuit and U.S. v. Fanfan from the D.Me. The Court also ordered an expedited briefing schedule so the cases could be argued on October 4, 2004 - the first day of the Court’s new term. Those cases will be argued against a background of extraordinary pressure to resolve the mantle of confusion that Blakely has created in the Federal sentencing arena - although it is still not clear how far the Court will go in resolving the many issues that have been raised by the lower courts. Among some of the most notable Blakely occurrences last week were the following:
  
  
• The U.S. Attorney from the N.D.Ind. has asked the Federal judges in his district for a blanket stay of all sentencing proceedings until the Supreme Court clarifies the scope of Blakely - stating that Federal sentencing has reached a “crisis.” Despite that “crisis,” the prevailing refrain from the Circuit courts appears to be “don’t rock the boat.” The Second Circuit has opted to tread water - issuing a procedural and administrative order that puts the brakes on all Blakely appeals in that Circuit until the Supreme Court rules.
  
  
• If the Circuit courts have been reluctant to delve into the many facets of Blakely, the district courts continue to turn out some important new decisions on that multi-headed topic. Thus, in O’Daniel, Judge Holmes of the N.D. Okla. held that the Sixth Amendment rights articulated in Blakely do apply to any sentence enhancement imposed under the Guidelines, but that the Guidelines are nevertheless constitutional so long as they are applied in a manner that fully protects those rights; and he crafted a four-part blueprint for assuring such compliance.
  
  
• In Emmenegger, Judge Lynch of the S.D.N.Y. rejected the defendant’s claim that Blakely rendered the Guidelines unconstitutional. Accordingly, he sentenced the defendant under the Guidelines after applying a 12-level enhancement for the amount of loss that he acknowledged was “almost entirely attributable to facts found by the Court by a preponderance of evidence held, based on hearsay.” However, he also concluded that if upward enhancements based on judicial fact-finding are unconstitutional, then "the entire structure of the Guidelines must fall."
  
  
• Finally, a number of courts have denied § 2255 motions on the grounds that Blakely does not apply retroactively to cases on collateral appeal; and one of the most comprehensive of those decisions was Judge McAvoy’s decision in the Garcia case from the N.D.N.Y.
  

Antiterrorism - A Guantanamo Bay Update

• The Al Odah and El-Banna cases reveal the DOJ’s strategy, in the aftermath of the Supreme Court’s decision in Rasul v. Bush, for dealing with the rising number of habeas petitions being filed on behalf of the 600-plus detainees being held at Guantanamo Bay: give them no rights and stonewall any attempts to grant any type of judicial relief to any of those rotten terrorist criminals.

U.S. v. Booker, No. 03-4225 (7th Cir. July 9, 2004) (Judge Posner)
U.S. v. Fanfan, No. 03-47-PH (D.Me. June 28, 2004) (Judge Hornby)

As many predicted, on August 2, 2004, the Supreme Court granted certiorari in the two Blakely cases selected by the Solicitor General, namely U.S. v. Booker and U.S. v. Fanfan. The Court also ordered expedited briefing schedules in both cases and announced that oral arguments on both appeals would be held on Monday, October 5, 2004. Many commentators expect the Court’s expedited schedule to freeze the groundswell of Blakely appeals that had been building in the lower courts; but there appears to be no consensus on what to expect when the Supreme Court rules on the many issues that it could address.

There were two common questions raised in the petitions in Booker and Fanfan (see P&J, 06/28/04); but, in the minds of many, those questions only touch the tip of the iceberg. At one extreme, the entire structure of the Federal Sentencing Guidelines is in jeopardy; and, from that perspective, there will be enormous political pressure to preserve the nation’s great experiment in devising the perfect sentencing solution under which defendants can be sentenced for crimes that were never charged - and even crimes for which they were acquitted.

At the other extreme, some have advocated that the entire range of problems created by Blakely can be overcome by a simple legislative fix: namely, amending the sentencing ranges in the Chapter 5 Sentencing Table to increase the top of each guideline range to the statutory maximum of the offense(s) of conviction. As explained by the author of that proposal, Prof. Frank Bowman of Wake Forest University School of Law:

“The practical effect of such an amendment would be to preserve current federal practice almost unchanged. Guideline factors would not be elements. They could still constitutionally be determined by post-conviction judicial findings of fact. No modifications of pleading or trial practice would be required. The only theoretical difference would be that judges could sentence defendants above the top of the current guideline ranges without the formality of an upward departure.”

Someplace in between those two extremes, the Supreme Court could decide to address a series of complicated and important interim questions, including the following:

• Two years ago, in Harris v. U.S., 536 U.S. 545 (2002), the Court upheld the right of sentencing judge - rather than juries - to make the factual determinations that lead to higher mandatory minimum sentences. Is Harris still good law - and, if so, how can Harris and Blakely be reconciled?

In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Court permitted sentencing judges to find “prior conviction” fact that aggravate a sentence; and, in Apprendi v. New Jersey, 530 U.S. 466 (2000), that exception was specifically preserved. Since then, Justice Thomas, who voted with the majority in Almendarez-Torres, has gone on record to state that he now believes that Almendarez-Torres was wrongly decided. Thus, will Almendarez-Torres survive Blakely?

Will Blakely be accorded retroactive treatment; and, if so, will it go back to Apprendi as Justice O’Connor intimated in her dissent in Blakely?

Does the Blakely rule apply to other settings in the Federal criminal system where the judge is authorized to find facts that (at least functionally) aggravate punishment - such as ordering criminal forfeitures or revoking probation?

It is hard to predict where all of this is taking us; but, as soon as the various briefs have been filed in these two cases, we will post them on our Blakely resource center on the Internet at www.ussguide.com.

In the meantime, here are some of the other latest Blakely developments:

Blakely Procedural and Administrative Measures Adopted by the Second Circuit

On August 6, 2004, Chief Judge John M. Walker, Jr. of the Second Circuit announced a set of “procedural and administrative measures” that the Court was adopting pending the Supreme Court’s rulings in U.S. v. Booker and U.S. v. Fanfan. Those rules, designed to put the brakes on further Blakely appeals and rulings, provided as follows:

“(1) The court generally will hold mandates in all criminal cases pending the Supreme Court’s decision in Booker/Fanfan. A panel may order that a mandate issue, however, in cases in which (a) the defendant was sentenced to no more than the applicable statutory minimum and (b) the facts that justified application of the statutory minimum were either admitted by the defendant or found by a jury beyond a reasonable doubt. Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part.


(2) All motions to file supplemental briefs in light of the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), will be denied without prejudice to renewal following the Supreme Court’s decision in Booker/Fanfan.


(3) Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its decisions that address defendants’ sentences until after the Supreme Court’s decision in Booker/Fanfan. In that regard, the parties will have until 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker/Fanfan.”

With all due respect, the 14 day period granted to parties to file supplemental petitions for rehearings after the Supreme Court rules in Booker/Fanfan is patently ludicrous - at least for any prisoners who may be affected by the Court’s order: copies of the Supreme Court’s ruling won’t even reach the prisons until long after the 14-day period has expired. But, hey, this procedural rule will certainly cut down on Blakely appeals by prisoners in the Second Circuit!

U.S. v. O’Daniel, No. 02-CR-159-H (N.D.Okla. August 6, 2004) (Judge Holmes)

The defendant in this case pled guilty to six counts of knowingly transporting child pornography over the Internet, in violation of 18 U.S.C. § 2252(a). At sentencing, based on Blakely, the defendant objected to a five-level enhancement for “distribution to a minor” under U.S.S.G. § 2G2.2(b)(2)(C), and a four-level enhancement for possession of “material that portrays sadistic or masochistic conduct or other depiction of violence under U.S.S.G. § 2G2.2(b)(3). Ultimately, the Court found that the Government had established facts, by proof beyond a reasonable doubt, to support the four-level enhancement; but that it had failed to establish the facts necessary to support the five-level enhancement.

In his decision, Judge Holmes concluded that “(i) the Sixth Amendment rights articulated in Blakely apply to any sentencing enhancement imposed under the Guidelines; (ii) going forward, the Guidelines can be applied in a manner that fully protects the Sixth Amendment rights articulated in Blakely, and therefore the Guidelines are constitutional; and (iii) the Guidelines can be applied to the instant case in a manner that fully protects Defendant’s Sixth Amendment rights, and therefore sentencing Defendant under the Guidelines here is constitutional.”

What sets this decision apart from many others that have addressed Blakely in summary fashion is Judge Holmes detailed presentation of a four-part plan or blueprint for dealing with Blakely, which he said was designed “to maintain the workability and fairness of the Guideline system, while fully protecting each defendant’s Sixth Amendment rights under Blakely.” His plan involves the following steps:

(1) The Court will only accept a plea of guilty accompanied by a Sixth Amendment waiver of jury that expressly applies to both guilt or innocence and to sentencing. If a defendant does not desire to waive his or her jury rights in all respects, a jury trial on all relevant issues will ensue in accordance with the Sixth Amendment.

(2) For those cases resolved by a plea pursuant to such a comprehensive waiver, judicial factfinding at sentencing will require that any contested enhancement or departure must be based on facts established beyond a reasonable doubt in accordance with the federal rules of evidence. The Court recognizes this may have significant consequences, particularly in areas such as relevant conduct, determining amounts (e.g. drug quantities and dollar amounts) and role in the offense. Nevertheless, the Court believes the language in Blakely equating judicial factfinding with jury factfinding as a matter of Sixth Amendment jurisprudence implicitly, if not explicitly, requires the application of such enhanced evidentiary standards.

(3) For those cases that go to trial, facts necessary to support relevant sentencing enhancements and departures will be set forth on the verdict form for the jury to find beyond a reasonable doubt. A mechanism will be established whereby all parties have full notice of such potential enhancements prior to trial. The Court will give the jury such instructions as are necessary and appropriate to make these findings of fact.

(4) The United States should include significantly more detail in its charging documents. For those cases that are resolved by entry of a plea, this will reduce the amount of judicial factfinding needed at sentencing. For those cases that go to trial, the jury will have a more complete understanding of the questions that will be presented on the verdict form as matters to be proved beyond a reasonable doubt. The Court anticipates that in some cases that go to trial involving certain sentencing enhancements, such as relevant conduct, particularly relevant conduct, evidence regarding such enhancements may not be admissible because it may be of limited probative value in proving the crime charged and highly prejudicial. Only in special cases, for good cause shown, will the Court utilize a bifurcated procedure whereby guilt or innocence will be considered in a first phase and sentencing evidence will be offered in a second phase. Specifically with respect to relevant conduct, since the United States hereafter must prove all relevant conduct beyond a reasonable doubt in any event, wherever possible the United States should consider simply including any such relevant conduct allegations as part of the crime or crimes being charged.

U.S. v. Emmenegger, No. 04 Cr. 334 (GEL) (S.D.N.Y. August 4, 2004) (Judge Lynch)

The defendant in this case pled guilty to five counts of securities fraud and wire fraud; and his adjusted Guideline sentencing range was 33-to-41 months, after attributing to him a twelve-level upward adjustment for the amount of the loss. Judge Lynch, considered by many as one of the most forthright, intellectual leaders in the field of sentencing, explained:

“The severity of the guidelines sentence is almost entirely attributable to facts found by the Court by a preponderance of the evidence, based on hearsay, that is, on information collected and reported by the Government and the Probation Department, not evidence examined directly by the Court after being introduced, following the establishment of a proper foundation, at a formal hearing. No jury found these facts; there has been no jury trial. Nor did Emmenegger admit them at his plea allocution, whether by stipulation or testimony.”

The defendant argued that Blakely “renders the guidelines regime unconstitutional, and that the Guidelines therefore should not be applied to his case at all.” Judge Lynch rejected that argument, stating: "This Court cannot conclude that the holding of Blakely inevitably entails the unconstitutionality of the Guidelines." He then continued that "it would be bold indeed for a district court simply to declare itself free of binding authority and to hold invalid a comprehensive sentencing scheme adopted by Congress and applied by the federal courts, including the Supreme Court, for nearly twenty years, particularly where not a single constitutional challenge to that scheme has ever been sustained."

He explained his position as follows: "The question, properly conceived, is therefore not whether the federal guidelines regime can be squared with particular language in Blakely, such as its definition of 'statutory maximum'; it is whether Blakely’s holding, which the Court expressly limited to the facts before it, that is, those pertaining to Washington’s particular sentencing scheme, perforce invalidates the quite distinct federal guidelines regime. Heedlessly applying the Court’s language outside the context in which it was written ignores significant distinctions between the Washington and federal systems."

In his thoughtful analysis of a number of critical issues that have developed in the wake of Blakely, one (interesting but contestable) conclusion that Judge Lynch reached was that "sentencing guideline systems seem more analogous to the kinds of fact-finding that judges historically performed under discretionary sentencing regimes, and less comparable to the creation of innumerable degrees of separate crimes."

However, Judge Lynch also agreed with the reasoning of many of the courts that "[i]f it is unconstitutional for the Court to apply sentencing guideline enhancements based on fact findings that go beyond the facts admitted by the defendant at his plea, the entire structure of the Guidelines must fall."

He also noted that, if the Guidelines were not legally binding, he would have imposed a sentence of 24 months rather than the 33-month Guideline sentence he imposed. Finally, Judge Lynch stated that "the Court will in all future cases announce its alternative view of an appropriate sentence if the Court has discretion to impose sentence within the statutory range."

Garcia v. U.S., No. 04-CV-0465 (N.D.N.Y. August 4, 2004) (Judge McAvoy)

While this ruling is clearly part of the law and the lore of Blakely, its significance is not such that it would normally warrant more than a few brief comments - except for one very important reason. We have received a small flood of “legal flyers” that are apparently being mailed to Federal prisoners all across the country from lawyers and paralegals who are offering their services on Blakely appeals - provided, of course, the prisoner or her family pays a nice retainer up front.

The common premise of most of these high-pressure solicitations is that the Blakely rule almost certainly will be given retroactive treatment to cases on collateral appeal. Many of the flyers also convey the message that haste must be made to take advantage of Blakely before the scope of its ruling is limited by some forthcoming act of Congress.

Because we find those vultures and their false promises patently offensive, we urge prisoners at least to read Judge McAvoy’s detailed and articulate decision in the instant case - before racing off to get families and friends to dip into their pockets to pay for a mass-produced, boiler-plate appeal that will probably do more to antagonize the courts than bring about any relief.

While this ruling may not be the final - or even the most definitive - word on the topic of Blakely’s retroactivity, it is a far more dispassionate view of that issue than what we have seen presented in some of the “legal flyers” that have been mailed to us by a very disadvantaged class of citizens. It is also one of the most detailed analyses of the Blakely retroactivity issue that we have seen to date; and we note that all of them have concurred in the result reached by Judge McAvoy.

In this case, Judge McAvoy firmly concluded that Blakely does not apply retroactively to § 2255 motions because it does not fit within either of the two narrow exceptions to the general non-retroactivity doctrine, as defined by the Supreme Court in Teague v. Lane, 489 U.S. 288 (1989). He wrote in part:

"In Schriro v. Summerlin, the Supreme Court held that Ring v. Arizona did not announce a watershed rule because it is not clear that judicial fact finding 'so seriously diminishe[s] accuracy as to produce an impermissibly large risk of injustice.' Schriro, 124 S. Ct. at 2535. Because Ring did not announce a watershed rule and is an extension of Apprendi, Apprendi similarly did not announce a watershed rule. Stoltz, 2004 WL 1619131, at *3; see also Coleman, 329 F.3d at 89 ('Apprendi did not announce a watershed rule.'). It follows, then, that Blakely, another extension of Apprendi, is not a watershed rule. Id.

"Blakely also does not 'alter our understanding of the bedrock procedural elements essential to the fairness' of criminal proceedings. Sawyer, 497 U.S. at 241. Rather, it merely 'clarified and extended' the Sixth Amendment right to trial by jury. Coleman, 329 F.3d at 89. Indeed, the Blakely Court stated that 'our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial.' Blakely, 124 S. Ct. at 2538. Blakely extended the accused's right to a jury trial by requiring that a jury determine all facts upon which the sentence is predicated. Moreover, a Blakely violation does not offend the concept of ordered liberty such that it would require automatic reversal in most situations. The Supreme Court has stated that 'the values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial.' Schriro, 159 L. Ed. 2d 442, 124 S. Ct. 2525-26 (quoting DeStefano v. Woods, 392 U.S. 631, 634 (1968)). Thus, Blakely cannot be said to establish a watershed rule of criminal procedure and it does not apply retroactively to cases on collateral review."

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