Vol. 11, No. 26	Covering Cases Published in the Advance Sheets through June 28, 2004

The Latest on Blakely - At Least Until You Blink!

At near breakneck speed, the Blakely news continues to grow - and dwarf just about everything else on the Federal criminal law horizon. Here are some of last week’s more significant events:

• On July 21, 2004, the Solicitor General selected two previous Blakely rulings for appeal to the Supreme Court and filed petitions for writs of certiorari in the Seventh Circuit’s decision in U.S. v. Booker and Judge Hornby’s ruling in U.S. v. Fanfan - seeking expedited review in both cases.
  
  
• Just five days after a panel from the Sixth Circuit held, in Montgomery, that the Guidelines were unconstitutional, that decision was vacated when the active judges voted to rehear the case en banc. Then, the defendant reached a settlement with Federal prosecutors granting her the relief she had sought - at which point she withdrew her appeal. In effect, these events mean that there is currently no binding precedent on the impact of Blakely on the Federal Sentencing Guidelines in the Sixth Circuit.
  
  
• By week’s end, divided panels from both the Eighth and the Ninth Circuits had chipped in with decisions agreeing that Blakely applies to the Federal Sentencing Guidelines. In Mooney, a majority of an Eighth Circuit panel held that the Federal Sentencing Guidelines are unconstitutional as a whole because they violate a defendant’s Sixth Amendment right to have a jury find beyond all reasonable doubt all the facts legally necessary to his sentence. In Ameline, a majority of a Ninth Circuit panel held that Blakely bars Federal judges from using facts not proven by proof beyond a reasonable doubt to increase sentences; but the Court did not agree that Blakely rendered the Guidelines unconstitutional as a whole - arguing instead that the now-invalid provisions of the Guidelines should be severed from the rest and the valid provisions should continue to be used and applied - rather than reverting to the pre-1987 system where the judges were free to impose any sentence within the statutory maximum.
  

The Confrontation Clause - A Crawford Update

• In Saner, Judge McKinney (D.S.Ind.) issued one of the first detailed interpretations of the Supreme Court’s recent decision in Crawford v. Washington that we have seen. He held that the Confrontation Clause barred the use of a coconspirator’s statement against a co-defendant after he became unavailable for cross-examination by invoking his Fifth Amendment right not to incriminate himself.

The Forthcoming Conventions - And Civil Rights

• In Stauber, Judge Sweet (S.D.N.Y.) restored a bit of sanity to the Government’s color-coded frenzy of justifications to ignore the Constitution by holding that the New York City police cannot randomly search the bags and backpacks of protestors at the forthcoming Republican National Convention.

The Geography of Justice

• In Stumpf, the Sixth Circuit disagreed with the Ninth Circuit and held that the prosecution’s use of two conflicting theories concerning the identity of a shooter to convict both violated the Due Process Clause.

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)

In an effort to resolve the growing turmoil and rampant confusion about sentencing in criminal cases in the wake of Blakely v. Washington, 124 S.Ct. 2531 (2004), on July 21, 2004, the Acting Solicitor General (SG) filed petitions for writs of certiorari in these two cases. Invoking rarely used procedures, the SG requested expedited hearings in both cases, arguing that quick action from the Supreme Court was needed because Blakely had created “a wave of instability in the federal sentencing system,” that there were a “staggering” number of cases affected by Blakely, and that “a very large percentage of those cases may result in unlawful sentences.” The SG warned:

“In the 27 days since Blakely was decided, the federal sentencing system has fallen into a state of deep uncertainty and disarray about the constitutional validity of the federal Sentencing Guidelines system and what sentencing procedures should govern if Blakely invalidates that system in whole or in part.”

The SG had a large (and growing) list of cases to chose from in deciding which cases to appeal; and, for those interested, much of the background on the selection of these two cases is available at two of the many Websites following Blakey, namely Goldstein and Howe’s SCOTUSblog and Prof. Berman’s Sentencing Law and Policy.

Both of the cases chosen for Supreme Court review are drug cases. In Booker, the defendant was convicted by a jury of possession of crack cocaine with intent to distribute, and with actual distribution of crack. He was sentenced to 360 months in prison. The Blakely problem was that the jury verdict was based on a finding that 92.5 grams of cocaine were involved in the crimes, but the district court found that Booker had actually distributed 658.5 grams of crack. That judge-made finding boosted Booker’s sentence from a Guideline sentence of 262 months to a sentence of 360 months in prison. Because it was the district court’s finding, not the jury’s, that resulted in the higher sentence, Blakely was directly implicated. On appeal, a divided panel from the Seventh Circuit concluded that “the application of the guidelines in this case violated the Sixth Amendment as interpreted in Blakely”; and thus it vacated Booker’s sentence. (See Booker, P&J, 6/21/04).

In Fanfan, the defendant was convicted by a jury of one count of conspiracy to distribute cocaine. At sentencing, the district court (Judge Hornby of the D.Me.) noted that the jury verdict in the case was limited to a finding of a conspiracy to distribute at least 500 grams of cocaine powder. But prosecutors also had contended in their sentencing recommendation that Hornby take into account that the case also involved trafficking in crack cocaine. The Guidelines, the judge found, would have required him to take the crack into consideration, and called for a sentence within a range of 188 to 235 months.

But, Judge Hornby concluded that, under Blakely, “I may not increase the sentence above the 63 to 78 month range,” and he sentenced Fanfan to 78 months. In his ruling, Judge Hornby also stated that "the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."

In seeking rulings from the Supreme Court on both of those decisions, the Solicitor General presented the following two common questions:

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.

Some have argued that those two questions only touch the tip of the iceberg - and that there are many more underlying questions of great importance that the Supreme Court will be forced to address by the time these cases are argued in early October. As a matter of interest, the SG appears to have specifically ignored the three questions that were certified to the Supreme Court by the Second Circuit in U.S. v. Penaranda, 2004 U.S. App. LEXIS 14268 (July 12, 2004) (See P&J, 6/21/04).

Although the Supreme Court has not yet accepted either of these cases for consideration, it has directed the lawyers for the defendants in both cases to respond by July 28 on the question of whether the Court should accept the cases. Copies of the pleadings filed to date in both of these cases have been posted on our own Blakely Resource Center on the Internet; and we will continue to monitor and update those pleadings on a daily basis as we have been doing with our listing of all the published Federal Circuit Court and District Court cases that have addressed Blakely.

U.S. v. Montgomery, 2004 U.S. App. LEXIS 15017 (6th Cir. July 19, 2004) (En banc) (Per Curiam)

Last week we noted that a divided panel from the Sixth Circuit rendered the most sweeping Blakely decision that we have seen to date when it ruled that, “[i]n 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.” (See, Montgomery I, P&J, 6/21/04).

Five days later, the panel’s decision was vacated when the active judges on the Sixth Circuit voted to rehear the panel’s decision en banc. Then, before the ink was even dry on that ruling, it was reported that the defendant in this case, Tiffany Harris Montgomery, had reached a settlement with Federal prosecutors who apparently agreed to the sentence reduction she had sought. The Cincinnati Post, reporting on that settlement, noted that Ms. Montgomery's attorney then asked the Sixth Circuit to drop the appeal, a request which the Court is expected to grant quickly.

In short, these subsequent events bring the Sixth Circuit back to square one: Montgomery is dead - and there is currently no binding precedent on the impact of Blakely on the Federal Sentencing Guidelines in the Sixth Circuit. One could expect the district courts to be even more uncertain and confused about how to deal with Blakely - and there is certain to be a great deal of disparity from district to district until a decision is rendered either by another panel from the Sixth Circuit or the Supreme Court.

U.S. v. Mooney, No. 02-3388 (8th Cir. July 23, 2004) (Per Curiam)

The per curiam label on this decision is actually quite deceptive - as it tend to cloud some of the significant differences among the judges on the contentious sentencing issues before the Court. True, all three judges agreed that the defendant’s various convictions for insider trading (mail fraud, securities fraud and money laundering) should be affirmed; and they also agreed that the case should be remanded for further consideration in light of the Supreme Court’s decision in Blakely v. Washington.

However, they strongly disagreed on the proper interpretation of Blakely. Judges Lay and Bright (both of whom have been frequent and highly vocal critics of the Guidelines over the years) concluded, in a separate decision, that the Federal Sentencing Guidelines are unconstitutional under Blakely. Conversely, Judge Murphy (who served as the head of the U.S. Sentencing Commission for over four years until his resignation from that post earlier this year) argued, in a separate dissent, that Blakely neither addressed nor decided that issue, and that it did not overrule existing Supreme Court precedent upholding the Guidelines.

The basic thrust of the Blakely argument before the Court was whether it applied to the inordinately complex Guidelines’ rules under U.S.S.G. § 2B1.4 for determining for sentencing purposes the amount of gain or loss that should be attributed to a defendant convicted of fraud. Here, the district court attributed to the defendant some $274,000 in gains arising out of his insider trading activities (which resulted in a Guideline sentencing range of 37-to-46 months in prison). The defendant, however, argued that, as a result of Blakely, he should have been charged with only $50,000 in gains (which would have resulted in a Guideline sentencing range of 24-to-30 months).

The majority held that Blakely rendered the Guidelines unconstitutional because they violate a defendant's Sixth Amendment right to have a jury find beyond a reasonable doubt any and all of the facts legally necessary to his sentence. The majority also adopted Judge Cassell’s approach in U.S. v. Croxford, 2004 U.S. Dist. LEXIS 1285 (D.Utah July 7, 2004) of treating the Guidelines as non-binding, but advisory, unless the defendant consents to a Guidelines sentence.

U.S. v. Ameline, No. 02-30326 (9th Cir. July 21, 2004) (Judge Paez)

In this decision, the Ninth Circuit joined the judicial debate about the impact of Blakely v. Washington on the Federal Sentencing Guidelines. The defendant, Alfred Ameline, pled guilty to the possession of a detectible amount of methamphetamine. He was sentenced to 150 months in prison, based on the district court’s determination, by a preponderance of the evidence, that he was responsible for 1,603 grams of methamphetamine. Ameline strenuously objected to that calculation, arguing inter alia that it was based on multiple layers of unreliable hearsay evidence.

In a lengthy opinion, a divided panel held that, based on Blakely, the sentence violated Ameline’s Sixth Amendment right to have the facts underlying his sentence found by a jury by proof beyond a reasonable doubt. The panel wrote:

“Blakely’s definition of statutory maximum applies to the determination of the base offense presumptive ranges under § 2D1.1(c) of the Sentencing Guidelines, as well as the determination of the applicability of an upward enhancement under § 2D1.1(b)(1). As a result, we hold that Ameline’s sentence, based on the district court’s finding by a preponderance of the evidence of 1,603.60 grams of methamphetamine—despite Ameline’s admission of only a detectable amount of methamphetamine—violates Ameline’s Sixth Amendment right to a jury trial. Because we may sua sponte review an issue based on a change in the law by the Supreme Court, we hold that we may properly review Ameline’s Blakely claim and conclude, regardless of whether we apply the harmless or plain error standard, that the district court violated Ameline’s right to have the facts underlying his sentence found beyond a reasonable doubt."

Significantly, the panel did not hold that the Guidelines as a whole had been rendered unconstitutional - as the Sixth Circuit did in the now-defunct decision in U.S. v. Montgomery; and as the Eighth Circuit did in U.S. v. Mooney. Rather, the majority held that “Blakely rule’s effect on the determination of a base offense level under § 2D1.1(c) and an upward enhancement under § 2D1.1(b)(1) do not render the Sentencing Guidelines facially invalid.” In effect, the majority held that the provisions of the Guidelines that improperly authorize district courts to make factual findings by a preponderance of the evidence should be “severed” from the rest of the Guidelines; and that the severance and invalidation of certain provisions of the Guidelines do not impair the function of the Guidelines as a whole.

The majority also made an interesting - but disturbing - comment on the alleged fairness of the Federal sentencing system over the past 17 years where judges have routinely imposed huge sentence enhancements based on facts that were never charged in the indictment and never proven to a jury by proof beyond a reasonable doubt. In footnote 15 it wrote:

“Blakely’s application to the Sentencing Guidelines will likely lead to greater accuracy in sentencing. We have long held ‘a defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information.’ A jury finding beyond a reasonable doubt material sentencing facts that will increase the level of punishment, as opposed to a district judge making such findings by a preponderance of the evidence, will likely lead to more reliable information during the sentencing process. While theoretically the disputed hearsay relied upon to increase Ameline’s base offense level to 34 might have satisfied the district court that it was more likely true than not, it is far less certain that its questionable reliability would satisfy a jury (or district judge, assuming a proper jury waiver) beyond a reasonable doubt that Ameline had engaged in distribution of those amounts.” (Internal citations omitted).

In his dissent, Judge Gould argued that “[w]hile reasonable jurists may now disagree on the long-range impact of the reasoning of Blakely, in the short run we remain bound to apply the Guidelines unless and until the Supreme Court holds otherwise.”

“Pizza and Your Privacy”

The ACLU has prepared a tongue-in-cheek - but definitely thought-provoking - peek at future life in America. It has posted on its Website, at https://www.aclu.org/pizza/, a flash video presentation that shows some of the necessary evils of the Total Surveillance Society that is lurking on the horizon Starting with an innocent phone call from a customer trying to buy a pizza, the video goes on to show what could easily happen with all of the information the Government is feverishly collecting about each of us. The ACLU warns:

“The government and corporations are aggressively collecting information about your personal life and your habits. They want to track your purchases, your medical records, and even your relationships. The Bush Administration's policies, coupled with invasive new technologies, could eliminate your right to privacy completely. Please help us protect our privacy rights and prevent the Total Surveillance Society.”

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