David Ziff at the Blakely Blog was in the courtroom today for the defense arguments in the Booker and FanFan cases. Here's his synopsis. TChris stood his ground and did not back down. A quote:

When compared to the Justices and Mr. Clement, Mr. Kelly is indeed a criminal trial expert, and it would be interesting to know how much weight the Justices gave to his statements based on experience in the trenches.

It's all very nice and good to argue these cases in the abstract, as professors and law students, but the reality is, that criminal defense attorneys see the inequities of the guidelines on a daily basis. The jury finds X but the defendant gets sentenced for X + Y because of an argument the prosecutor makes to the judge, after the trial, where the burden of proof is reduced and where the rules of evidence aren't applicable. Ashcroft today held a news conference and said, essentially, the guidelines are necessary because they have made the crime rate go down because they send the message that you shouldn't do the crime if you can't do the time.

No one is arguing defendants shouldn't be held accountable for their conduct. It's another thing entirely to double or triple their time based on arguments the jury never hears and the prosecution is allowed to establish by hearsay and speculation.

My prediction: Blakely will be held to apply to the guidelines. If the prosecution is seeking an increase based on additonal facts, there will be need to be a second phase of the trial, where the jury is presented with facts, subject to the rules of Evidence, which the prosecution must establish beyond a reasonable doubt. That's the Constitution, that was our system until 1987 when the Guidelines came in, and since 1987, some defendant somewhere has gotten screwed by the Guidelines every day. Enough.

Bump and Update: Law Prof Doug Berman of Sentencing Law and Policy was also in court. Here's his first take, more tonight:

First, I agree with Tom Goldstein's post here that the Blakely five will stay together to apply Blakely to the federal system. The pre-argument buzz was that Justices Souter and Ginsburg might shrink away from extending Blakely, but their questions to Acting SG Paul Clement (who did a brilliant job) suggested that they both were firm on this issue.

But oral argument also suggested everyone is still struggling with the remedy after we conclude Blakely applies to the federal system. Justice Stevens pressed the SG about how many cases would really be impacted if Blakely applies to the guidelines, confirming that this may be a critical issue for the Justices on the severability question (and on which the US Sentencing Commission ought to try to shed a lot more light with whatever data it has assembled). How (and when) the Justices will sort through these matters remains the biggest question in my mind after hearing today's arguments.

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Original Post 2:00
Like many lawyers around the country, we're waiting for news about the Supreme Court oral argument in Booker and Fan Fan today. Tom Goldstein, of Scotus Blog via Blackberry, has this report:

With the Supreme Court set to hear oral argument in the Blakely v. Washington case, check out the debate going on at Legal Affairs--between Douglas Berman and Stephanos Bibas. It's shaping up into an interesting discussion.

There will be a lot of focus on the U.S. Sentencing Guidelnes between now and October 4 when the Supreme Court hears oral argument in two cases, Booker and FanFan. The Guidelines are in jeopardy following last term's decision in Blakely v. U.S.

The Wall Street Journal has an article today on one aspect of the guidelines that doesn't get enough attention: That a defendant can be sentenced by a Judge for conduct for which he was acquitted by a jury. All it takes is for a jury to find the defendant guilty at trial of one of the charges against him. The prosecutor can then ask the judge at sentencing to increase the sentence based upon conduct the jury rejected. How can this happen? Because the standard of proof at trial is proof beyond a reasonable doubt, while the standard before a judge at sentencing is the lesser one of "preponderance of the evidence."

TalkLeft's contributing blogger TChris is counsel for the defendant in the Booker case. He's been on hiatus from blogging while preparing the case for its big day before the Supreme Court. Here's his brief (pdf).

Our favorite source for all things Blakely online is Law Professor Doug Berman's blog, Sentencing Law and Policy.

Frank Quattrone was sentenced to 18 months in federal prison yesterday. The Judge's decision is one to be feared by all defendants. Even though Quattrone was not convicted of perjury, the Judge increased his sentence because he believed Quattrone lied when he testified in his own behalf at trial.

Judge Richard Owen of the Southern District of New York rejected a Probation Department recommendation that Quattrone serve only five months behind bars for his May 3 conviction for obstructing justice, obstructing an agency proceeding and witness tampering. Judge Owen found that the former star investment banker at Credit Suisse First Boston perjured himself on the witness stand and deserved a higher sentence.

Upon objection from John Keker, Quattrone's lawyer, the Judge said:

"A defense lawyer runs the risk of this by putting the defendant on the stand. You can avoid the perjury issue by simply not taking the witness stand."

The Judge also refused to follow the recent Supreme Court's Blakely decision which held that juries, not judges, must decide facts that increase a sentence.

Via Law Prof Doug Berman at Sentencing Law and Policy: The 4th Circuit En Banc today has refused to invalidate the federal sentencing guidelines. The order states:

According to the vote of a majority of the en banc court constituted to hear this appeal, we affirm the judgment and hold that Blakely v. Washington, does not operate to invalidate Hammoud's sentence under the federal sentencing guidelines. Therefore, district courts within the Fourth Circuit are hereby instructed to continue sentencing defendants in accordance with the guidelines, as was the practice before Blakely. In the interest of judicial economy, however, we recommend that district court within the Fourth Circuit also announce, at the time of sentencing, a sentence pursuant to 18 USC 3553(a), treating the guidelines as advisory only. Majority and dissenting opinions will follow in due course.

As expected, the Supreme Court today agreed to hear two cases decided adversely to the Government in the wake of its Blakely decision. Sentencing Law and Policy and Scotusblog have the details.

Accepting all of the suggestions of the Justice Department, the Court agreed to review two constitutional questions in two cases – U.S. v. Booker, 04-104, and U.S. v. Fanfan, 04-105. The Court indicated it would decide whether Blakely applies to the Guidelines and, if so, whether the entire Guidelines system is invalid, or some of it can be salvaged.

As early as today the Supreme Court is expected to decide which, if any, of the Blakely cases it will review. The Government has sought review of two cases, one of which was won in the 7th Circuit Court of Appeals by Talkleft contributor TChris. Tony Mauro at Legal Times has the details.

The Wall St. Journal reports in tomorrow's edition that the Senate has passed a resolution urging the Supreme Court to resolve sentencing issues created by its Blakely decision (subscription only):

Members of the Senate passed by unanimous consent a resolution asking the Supreme Court to resolve questions over the constitutionality of the federal sentencing guidelines. The House is expected to consider the measure this week.
The bipartisan resolution, rare at a time when political acrimony is running high, shows how critical the subject is considered to be. Its passage means that all three branches of government -- legislative, judicial and executive -- have requested expedited action by the Supreme Court to provide clarity to its ruling last month.

Via Law Prof Doug Berman of Sentencing Law and Policy:

Re-load the paper in your printers, because I have be lucky enough to receive pdf copies of the documents that United States has filed in the Supreme Court today seeking expedited review of US v. Booker and US v. Fanfan!! It appears that US v. Booker will be assigned docket number 04-104, and US v. Fanfan will be assigned docket number 04-105.

Professor Berman has uploaded the text of the documents to his site:

• Here are the Booker documents (including the joint motion to expedite):
  
  Download booker_fanfan_motion_to_expedite.pdf
  
  Download Booker.Petition.pdf
  
  Download Booker.App.A.pdf

• Here are the Fanfan documents:
  
  Download FanFan.Petition.pdf
  
  Download FanFan.Appendix.pdf
  
  Download fanfan_app.attach.16-21.pdf

Once again, we're very excited for TalkLeft Contributor TChris who won the Booker case in the 7th Circuit and hopefully now will head to the Supreme Court.

by TChris

Howard Bashman at How Appealing reports that a divided panel of the Ninth Circuit has ruled that Blakely invalidates the federal sentencing guidelines as they were applied to the defendant in the Ninth Circuit case. The opinion is here (pdf).

Law Prof Doug Berman of Sentencing Law and Policy reports that in a first Blakely ruling from the federal courts in Florida, United States District Judge Gregory A. Presnell of the Middle District of Florida (Orlando division) finds the federal sentencing guidelines unconstitutional in their entirety. The case is US v. King, No. 6:04-cr-35. Some quotes:

Taking Blakely to its logical conclusion, the determinate scheme set up by the Guidelines violates the Constitution and can no longer be used in any case. The Court notes, however, that despite a return to an indeterminate sentencing scheme, it will continue to rely on the Guidelines as recommendations worthy of serious consideration. Slip op. at p. 12 (emphasis added).

....The suggestion that courts use the Guidelines in some cases but not others is at best schizophrenic and at worst contrary to basic principles of justice, practicality, fairness, due process, and equal protection. Courts simply cannot apply a determinate sentencing code to one defendant whose sentence raises no judicial fact-finding enhancement issues and a separate discretionary scheme to another defendant whose sentence does raise enhancement issues. Such a structure not only seems to violate equal protection principles but would lead to the perverse result that both Government and criminal defense attorneys would plot to finagle their way into the determinate system or indeterminate system depending on the judge and the various factors relevant to the particular defendant’s sentence.