Vol. 11, Nos. 24 & 25	Covering Cases Published in the Advance Sheets through June 21, 2004

Blakely - The "Bedlam" Has Started

The Supreme Court’s decision in Blakely v. Washington, 124 S.Ct. 2531 (2004) has set off a firestorm of controversy against which almost everything else seems to have paled in significance. By the minute, it sometimes feels, new developments occur - and it is almost impossible to keep up with the “bedlam” that Judge Easterbrook predicted (in the Booker case noted below) would flow from Blakely. The picture got so confusing that District Judge Joseph Goodwin directed that all sentencings in his court be deferred till at least October 15, 2004 - presumably to give the Supreme Court a chance to give some direction to the lower courts. (U.S. v. Thompson, 2004 U.S.Dist. LEXIS 13213 (S.D.W.Va. July 14, 2004)).

Last week, special Blakely hearings were held in Washington before the Senate Committee on the Judiciary. One of the speakers, District Judge Paul G. Cassell (D.Ut.) - who is the author of a series of the most significant Blakely cases to date, entitled U.S. v. Croxford - honored us by making special mention of our “very helpful” Blakely Website that we have posted on the Internet - a notable first for us.

In truth, while we have noted below some of the more significant Federal Circuit court decisions relating to Blakely, space simply does not permit us to cover the full gamut of Blakely developments that have occurred in the past two weeks. Therefore, if you want a more comprehensive overview of the entire Blakely landscape (including a listing of all the Blakely cases - District Court and Court of Appeals - by Circuit), we urge you to go to our own Blakely Website (where we have many resources, including a listing of, and links to, all of the Blakely cases - both District Court and Court of Appeals - organized by Circuit) as well as to Prof. Berman’s excellent Sentencing Law and Policy Web site.

The Booker case from the Seventh Circuit was the first Circuit Court to address the impact of the Supreme Court’s recent landmark decision in Blakely v. Washington on the Federal Sentencing Guidelines - and, in that case, a divided court held that “Blakely dooms the guidelines insofar as they require that sentences be based on facts found by a judge.” That decision was quickly followed by a similar (but even more far-reaching) decision from the Sixth Circuit in Montgomery where the panel held that “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 . . . . 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.”

• In Pineiro, the Fifth Circuit took the opposite view and held that “Blakely does not extend to the federal Guidelines and that Pineiro’s sentence did not violate the Constitution”, in large part based on the distinctions between the statute-based guideline scheme at issue in Blakely and the administrative-agency-based guideline scheme in the federal system.
  
  
• The Second Circuit took still a different approach in the Penaranda case. Rather than even attempting to sort through the myriad Blakely issues raised by the two cases before it, the judges, sitting en banc, unanimously decided to certify three questions to the Supreme Court, stating that “a prompt and authoritative answer to our [three questions] is needed to avoid a major disruption in the administration of criminal justice in the federal courts.”
  

U.S. v. Booker, No. 03-4225 (7th Cir. July 9, 2004) (Judge Posner)

Shortly after the Supreme Court's landmark decision in Blakely v. Washington, the Seventh Circuit became the first Federal Court of Appeals to hold that the Federal Sentencing Guidelines are unconstitutional as applied to a sentence that was enhanced on the basis of facts that were not determined by a jury.

In this case, a jury found the defendant guilty of possessing with intent to distribute at least 50 grams of crack cocaine. The maximum sentence that the district judge could have imposed in this case (without an upward departure), had he not made any findings concerning quantity of drugs or obstruction of justice, would have been 262 months. However, at sentencing, the district court found by a preponderance of the evidence that the defendant (1) had distributed an additional 566 grams of crack, and (2) had obstructed justice. Based on those findings, the district court increased the defendant’s sentence by 98 months (8-plus years) to 360 months.

By a 2-to-1 vote, the majority reversed the sentence and held that, under Blakely, the defendant has "the right to demand that the quantity be determined by the jury rather than by the judge, and on the basis of proof beyond a reasonable doubt."

Writing for the majority, Judge Posner explained the majority’s decision by writing:

“The maximum sentence that the district judge could have imposed in this case (without an upward departure), had he not made any findings concerning quantity of drugs or obstruction of justice, would have been 262 months, given the defendant’s base offense level of 32, U.S.S.G. § 2D1.1(c)(4) (32 is the base offense level when the defendant possessed at least 50 grams but less than 150 grams of crack), and the defendant’s criminal history. U.S.S.G. §§ 4A1.1(a)–(e),.2(c)(1). True, that maximum is imposed not by the words of a federal statute, but by the sentencing guidelines. Provisions of the guidelines establish a ‘standard range’ for possessing with intent to distribute at least 50 grams of cocaine base, and other provisions of the guidelines establish aggravating factors that if found by the judge jack up the range. The pattern is the same as that in the Washington statute, and it is hard to believe that the fact that the guidelines are promulgated by the U.S. Sentencing Commission rather than by a legislature can make a difference. . . .

“It would seem to follow, therefore,. . . that Blakely dooms the guidelines insofar as they require that sentences be based on facts found by a judge. The majority in Blakely, faced with dissenting opinions that as much as said that the decision doomed the federal sentencing guidelines, might have said, no it doesn’t; it did not say that.”

In the end, Judge Posner summarized the majority’s ruling as follows:

“(1) The application of the guidelines in this case violated the Sixth Amendment as interpreted in Blakely; (2) in cases where there are no enhancements--that is, no factual findings by the judge increasing the sentence--there is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety; (3) we do not decide the severability of the guidelines, and so that is an issue for consideration on remand should it be made an issue by the parties; (4) if the guidelines are severable, the judge can use a sentencing jury; if not, he can choose any sentence between 10 years and life and in making the latter determination he is free to draw on the guidelines for recommendations as he sees fit; (5) as a matter of prudence, the judge should in any event select a nonguidelines alternative sentence."

Judge Easterbrook dissented. In a spirited dissent, he disagreed with the majority’s ruling on both procedural and substantive grounds; and he contended that the likely consequence of the majority’s ruling would be “bedlam.”

Procedurally, he argued, the majority was wrong because “in order to reach the result they do, my colleagues must conclude that Edwards v. U.S., 523 U.S. 511 (1998) was decided wrongly.” [In Edwards, the Supreme Court unanimously held that, as long as the jury determines that a defendant participated in the conspiracy, and his or her sentence does not exceed the statutory maximum applicable to that conspiracy, the sentencing court may determine both the quantity and type of drugs attributable to the defendant and impose sentence accordingly.] On that issue Judge Easterbrook commented: “The Supreme Court alone is entitled to declare one of its decisions defunct.”

Substantively, Judge Easterbrook argued that the majority had misread Blakely. He wrote: “I would treat Blakely as holding that, when there are multiple statutory caps, the ‘statutory maximum’ is the lowest one and the jury must determine whether statutory thresholds to increased ranges has been satisfied.” In applying that rule to Blakely, he contended that the real statutory maximum at issue in Blakely was three years in prison (not ten years as most other courts have concluded).

He then went on to criticize the majority for confusing the “sentencing ranges” established by the Guidelines and the “statutory maximums” established by Congress. He argued that “Apprendi and Blakely hold that the sixth amendment allocates to the jury all elements of the offense, plus all statutory details that are enough like elements that differences in phraseology should not be allowed to affect the defendant’s rights. . . .Once the jury has determined the degree (and the statutory consequences) of the offense, both judges and executive officials constitutionally may take part in determining how much of the statutory maximum the defendant serves in prison.”

U.S. v. Montgomery, No. 03-5256 (6th Cir. July 14, 2004) (Judge Merritt)

In this brief decision, the Sixth Circuit agreed with the Seventh Circuit’s assessment (in Booker) that Blakely v. Washington, 124 S.Ct. 2531 (2004), invalidates the Federal Sentencing Guidelines’ system of permitting judges to calibrate sentences based on facts not determined by a jury - but this decision also goes considerably further because the Court additionally concluded that the Guidelines are nothing more than guidelines (i.e., they are not mandatory); and it directed district court judges to revert to indeterminate sentencing in all cases.

Writing for the unanimous panel, Judge Gilbert Merritt said that Blakley had made “a sea change in the Administration of the Federal Sentencing Guidelines” and that:

"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 judges should seriously consider but may disregard when she believes that a different sentence is called for. . . .

“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.”

In reaching those sweeping conclusions, the Court emphasized that “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 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 sub-section counsels the judge to consider the ‘aggravating or mitigating circumstances’ of the particular Guidelines. . .”

U.S. v. Pineiro, No. 03-30437 (5th Cir. July 12, 2004) (Judge King)

In sharp contrast to the Sixth and Seventh Circuit rulings in Montgomery and Booker, noted above, the Fifth Circuit concluded in the instant case that Blakely v. Washington, 124 S.Ct. 2531 (2004) does not extend to the Federal Sentencing Guidelines - a ruling that creates a clear conflict among the Circuits.

The defendant in this case, Francisco Pineiro, was convicted by a jury of various drug crimes. On the main conspiracy drug count, the jury was given a special verdict form asking it to indicate the amounts (if any) of marijuana and cocaine that it found Pineiro had conspired to distribute. In response to that verdict form, the jury found Pineiro guilty of conspiring to distribute the lowest amounts listed: “less than 50 kilograms” of marijuana and “50 grams or less” of cocaine.

Prior to sentencing, the presentence report held Pineiro responsible for amounts of drugs “much greater than the amounts found by the jury” at trial, and it further recommended a sentence enhancement for his leadership role in conspiracy. The district court adopted the presentence report’s recommendations and sentenced Pineiro to 121 months in prison, over Pineiro’s objections.

Pineiro appealed his sentence and, after briefing was completed, but before oral argument, the Supreme Court decided Blakely. The Fifth Circuit then ordered supplemental briefing to assess the impact of Blakely on Pineiro’s sentence.

In reaching its decision, the Court emphasized that “Blakely . . . is not the only case that we must consider. While we are bound to follow Blakely, as an inferior court we are also bound to examine the Supreme Court’s prior pronouncements and guidance regarding the nature of the Guidelines. That examination reveals that a number of the Court’s prior cases, including cases that reject various constitutional challenges to the Guidelines, are founded on the proposition that there are constitutionally meaningful differences between Guidelines ranges and United States Code maxima.”

The Court then concluded that, while “[u]ndeniably, Blakely strikes hard at the prevailing understanding of the Guidelines”, . . . “Blakely does not extend to the federal Guidelines and that Pineiro’s sentence did not violate the Constitution." The Court explained its ruling by stating:

“In the wake of Blakely, the constitutional fate of the federal Guidelines depends on whether the Guidelines effectively operate as statutes that define different offenses with different maximum sentences; expressed in different terms, the question is whether a Guidelines sentencing range unenhanced by judicial findings sets a ‘maximum sentence’ for purposes of Apprendi [v. New Jersey, 530 U.S. 466 (2000)]. If that is how the Guidelines operate, then Pineiro's sentence is unconstitutional because the verdict did not authorize the sentence; instead, the judge's findings effectively determined the offense of which Pineiro was convicted. The competing vision of how the Guidelines operate - the position that the government urges - pictures the Guidelines as a tool for channeling the sentencing court's historic discretion to choose a sentence within the broad range established by the crime's statutory (i.e., United States Code) minimum and maximum.

Writing for the Court, Chief Judge King then stated:

“We do not believe that the Sentencing Commission can be thought of as having created for each United States Code section a hundred different Apprendi ‘offenses’ corresponding to the myriad possible permutations of Guidelines factors, with each ‘offense’ then requiring jury findings on all of its (guidelines-supplied) elements. Given the nature of the Guidelines, we think the better view - and one that respects the prior decisions of both the Supreme Court and this court - is that the relevant 'offenses' and 'maximum punishments' are those defined and authorized by Congress in the United States Code. Judicial findings under the Guidelines that set sentences within the authorized range therefore do not offend the Constitution. . . .

“[C]onsidering the entire matrix of Supreme Court and circuit precedent, we adhere to the position that the Guidelines do not establish maximum sentences for Apprendi purposes.”

U.S. v. Penaranda, No. 03-1055(L) (2nd Cir. July 12, 2004) (en banc) (Judge Walker)

Rather that getting embroiled in the game of guessing what the Supreme Court meant - and how far its decision in Blakely v. Washington, 124 S.Ct. 2531 (2004) was intended to reach, the judges from the Second Circuit simply threw up their collective hands and punted the ball back to the Supreme Court. Here the 13 active judges from the Second Circuit unanimously agreed to certify to the Supreme Court three detailed questions relating to the issue of the validity of two defendants' sentences in light of Blakely.

After acknowledging that the certification procedure authorized by 28 U.S.C. § 1254(2) is sparingly used, the Second Circuit emphasized that "a prompt and authoritative answer to our inquiry is needed to avoid a major disruption in the administration of criminal justice in the federal courts - disruption that would be unfair to defendants, to crime victims, to the public, and to the judges who must follow applicable constitutional requirements"; and it urged the Supreme Court "to entertain this certification . . . at its earliest convenience, with an expedited briefing and hearing schedule . . . in order to minimize, to the extent possible, what we see as an impending crisis in the administration of criminal justice in the federal courts."

The Court then explained:

“In a general sense, our question is whether the Blakely decision applies to the federal Sentencing Guidelines." More specifically, the Court stated that the “question presented in the cases pending before us is whether the Sixth Amendment also prohibits a sentencing judge from finding facts, not reflected in the jury’s verdict or admitted by the defendant, that form the basis for determining the applicable adjusted offense level under the administratively-promulgated federal Sentencing Guidelines.”

In stressing the urgency of the questions certified to the Supreme Court, the judges noted that Blakely not only casts a pall of uncertainty on more than 220,000 federal sentences . . ., but it also raised the prospect that many thousands of future sentences may be invalidated or, alternatively, that district courts simply will halt sentencing altogether pending a definitive ruling by the Supreme Court.”

In one of the two consolidated cases (Penaranda), the jury found, in response to special questions on the verdict form, that the drug conspiracy at issue involved five of more kilos of cocaine and one or more kilos of heroin. At sentencing, the district court found, by a preponderance of the evidence, that the conspiracy in fact involved at least 20 kilos of cocaine and 1.2 kilos of heroin; and the defendant was sentenced on that basis, over the defendant’s objections that the district court’s drug findings of drug quantities “were based on a cooperating co-conspirator’s uncorroborated allegations and were not verified by the jury’s verdict.”

In the second case (Rojas), the defendant pled guilty, without the benefit of a plea agreement, to having conspired to distribute “five kilograms or more” of cocaine; and his counsel argued that, under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) he could not be sentenced to more than 20 years in prison (the statutory maximum for drug crimes involving indeterminate quantities of narcotics). At sentencing, over the defendant’s objection, the district court concluded, “based on [its] own findings of fact” that the conspiracy involved 2,900 kilograms of cocaine; that the defendant was subject to a three-level managerial role enhancement under U.S.S.G. § 3B1.1(b); and that the defendant was subject to a two-level enhancement for firearm possession under U.S.S.G. § 2D1.1(b)(1). Based on those factors, the court then sentenced the defendant to 30 years in prison.

In response to the facts from those two cases, and “to afford the Supreme Court an opportunity to adjudicate promptly the threshold issue of whether Blakely applies to the federal Sentencing Guidelines,” the Court certified three questions to the Supreme Court as follows:

1. Does the Sixth Amendment permit a federal district judge to find facts, not reflected in a jury’s verdict or admitted by a defendant, that form the basis for determining the applicable adjusted offense level under the federal Sentencing Guidelines and any upward departure from that offense level?

2. In a case where a jury has convicted a defendant of possessing with intent to distribute five kilograms or more of cocaine and one kilogram or more of heroin, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. § 2D1.1?

3. In a case where a defendant has pled guilty to conspiring to distribute five kilograms or more of cocaine, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, (a) the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. § 2D1.1, (b) the applicability of a two-level enhancement to the base offense level for carrying a gun in connection with the offense, under U.S.S.G. § 2D1.1(b)(1), and (c) the applicability of a three-level managerial role enhancement under U.S.S.G. § 3B1.1(b)?

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Other significant Blakely decisions covered in greater detail on our Web site (listed alphabetically):

• U.S. v. Croxford, 2004 U.S. Dist. LEXIS 12156 (D. Utah June 29, 2004) (Judge Cassell)

• U.S. v. Croxford, 2004 U.S. Dist. LEXIS 27470 (D. Utah July 2, 2004) (Amended) (Judge Cassell)

• U.S. v. Croxford, 2004 U.S. Dist. LEXIS 12825 (D. Utah July 12, 2004) (Judge Cassell)

• U.S. v. Einstman, 2004 U.S. Dist. LEXIS 13166 (S.D.N.Y. July 14, 2004) (Judge McMahon)

• U.S. v. Khan, 2004 U.S. Dist. LEXIS 13192 (E.D.N.Y. July 12, 2004) (Judge Weinstein)

• U.S. v. Medas, 2004 U.S. Dist. LEXIS 12135 (E.D.N.Y. July 1, 2004) (Judge Glasser)

• U.S. v. Montgomery, 2004 U.S. Dist. LEXIS 12700 (D.Utah July 8, 2004) (Judge Stewart)

• U.S. v. Shamblin, 2004 U.S. Dist, LEXIS 12288 (S.D.W.Va., June 30, 2004) (Judge Goodwin)

• U.S. v. Spero, 2004 U.S. App. LEXIS 14118 (11th Cir. July 8, 2004) (Per Curiam)

“Inside The USA Patriot Act”

Starting on July 4th, 2004 and continuing for seven more days, The Providence Journal presented a timely and comprehensive analysis of USA Patriot Act today - entitled "Inside the USA Patriot Act." Written by staff writer Gerald M. Carbone, the topics covered for each of the eight days were as follows:

• Day 1: Act greatly expands powers of secret court

• Day 2: FBI can access almost anything about anyone

• Day 3: Snooping of e-mail, voicemail made easier for federal agents

• Day 4: Prosecutors' powerful tool can be shared with others

• Day 5: Your financial information is available on demand

• Day 6: Foreigners can be imprisoned indefinitely

• Day 7: U.S. can seize assets, no conviction required

• Day 8: 15 of Patriot Act's sections expected to fade into sunset

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