by TChris

The Seventh Circuit this afternoon declared the federal sentencing guidelines unconstitutional as applied to a sentence that was enhanced on the basis of facts that were not determined by a jury. This appears to be the first appellate decision to find that the Supreme Court's decision in Blakely requires facts that determine a guideline sentence to be found by a jury. In the interest of full disclosure, TChris (speaking here in the third person) was the defense attorney who argued the case: USA v. Booker (pdf).

The court did not decide whether the guidelines are unconstitutional in their entirety. It did not decide whether the guideline requirement that judges find sentencing facts can be severed from the other guideline requirements, leaving that for the district court to consider on remand.

The 7th Circuit has spoken on Blakely. Per Judge Posner, with Judge Easterbrook dissenting, here is the opinion in US v. Booker. [link via Sentencing Law and Policy]

Via How Appealing:

The U.S. Court of Appeals for the Eleventh Circuit holds that Blakely v. Washington does not apply retroactively in a federal habeas corpus proceeding to cases on collateral review: You can access today's ruling at this link. This, to my knowledge, is the first federal appellate ruling to directly address Blakely's applicability, although word is that more such decisions will be arriving quite soon.

Two more opinions, from Utah and one from Judge Cassell of Croxford fame.

by TChris

Unofficial word that another U.S. District Judge (this one in the Western District of Texas) has declared the federal sentencing guidelines unconstitutional under Blakely. His precise reasoning at this point seems unclear, but a written opinion may be forthcoming.
(via Blakelyblog)

(Update: (TL) Blakely Blog is another new blog on the Blakely decision by Jason Hernandez, "a 3rd year law student at Columbia Law School whose Note is in serious jeopardy of entering the circular file following Blakely.")

Law Professor Doug Berman has a "Deep Throat" providing access to DOJ memos on Blakely. We put the first one here. Prof. Berman just got three more, and you can download them from his Sentencing Law and Policy blog .

• Download blakely_sample_brief.wpd
  
• Download blakelysentmemoDMR.wpd
  
• Download CABresponse2.wpd
  
• Download ramirez-martinez.mem.sentencing.blakely.wpd

Jeffrey Fisher is the 33 year old Seattle, WA defense lawyer who won both of his cases before the Supeme Court this year--Blakely v. Washington and Crawford v. Washington. One will revolutionize sentencing and the other is changing the rules on what evidence can be admitted at trials.

Here's a profile of Mr. Fisher.

Crawford v. Washington, is being heralded as a legal landmark on the right to confront one's accuser. It is the kind of turning-point decision that for years to come will be raised in courtrooms across the nation. The other, Blakely v. Washington, has set off a national debate over the constitutionality of certain enhanced sentences and sent the best legal minds, in Oregon and elsewhere, scrambling for answers.

Among lawyers, Fisher's accomplishment is stunning. And it's even more unusual, perhaps, because the appellate lawyer has only practiced law since 1999. The 1997 graduate of the University of Michigan Law School joined the powerhouse law firm of Davis Wright Tremaine in Seattle almost five years ago after clerking for U.S. Supreme Court Justice John Paul Stevens.

There's lots more, go read. Also read today's editorial in the LA Times, Enough Abuse for Everyone:

Update: The Senate Judiciary Committee will hold a Blakely hearing July 13. Sen. Orrin Hatch will preside--not a good sign.

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Original Post

Courtesy of Law Professor Doug Berman of the blog Sentencing Law and Policy, we now have access to the memo DOJ circulated Friday (pdf) to federal prosecutors with Blakely guidance. The opening paragraph reads:

The position of the United States is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of the evidence standard, at sentencing. The government’s legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely.

Update: Here's another key paragraph, instructing prosecutors what to do if courts say Blakely applies to the federal sentencing guidelines:

Professor Berman of Sentencing Law and Policy reports on two post-Blakely decisions in New York, one from the Eastern District, US v. Medas, 2004 U.S. Dist. LEXIS 12135 (E.D.N.Y. July 1, 2004) in which:

District Judge I. Leo Glasser discusses Judge Cassell's Croxford opinion and states that he is "driven to arrive at the same conclusion [that the FSG are unconstitutional] for the reasons stated by Judge Cassell in a language that is eloquent in its simplicity and clarity."

Judge Glasser discusses this issue in a fascinating context. Apparently he has a jury deliberating in a criminal case now, but "immediately after the jury retired to deliberate the government submitted a 20 page Supplemental Verdict Sheet with a request that it, too, be provided to the jury. That Supplemental Verdict Sheet, the government urged, was the legitimate offspring of Blakely." After explaining that the government's "pre-Blakely indictment does not allege the enhancing sentencing factors the government now requests be submitted to the jury post-trial" and that "no mention was made of those factors during the trial," Judge Glasser refuses to submit the Supplemental Verdict Sheet to the still deliberating jury.

The second decision is from the Southern District of New York:

Sentencing Law and Policy reports:

Jason D. Hawkins, AFPD in the Northern District of Texas was kind enough to send along his Supplemental Objection to a Presentence Report that he just filed. (In Word); Wordperfect version is here. I've already found available a sample Defendant's Memorandum in Aid of Resentencing (html) courtesy of The Office of the Federal Public Defender for the District of District of Columbia.

If you are going to download the Word or Wordperfect versions of documents, we've found it helps to have the program already open on the computer before downloading. We prefer Wordperfect, and love the new WP12 because it will save documents in Word or WP and opens Word documents easily. It also handles .pdf docs which we hate because they are slow to load and slower to print and a pain to scroll through and often "locked" so you can't cut and paste from them.

Bump and Update: NACDL has added a special Blakely session to its superb San Francisco CLE program on Thursday, July 29 at 4PM . It will address the implications of Blakely on state and federal sentencing guidelines. The panel will be moderated by Carmen Hernandez. Panelists include: Jeffrey Fisher, Peter Goldberger, Steve Kalar, and others. Sign up now!

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Original Post

The National Association of Criminal Defense Lawyers (NACDL) has created a Blakely v. Washington Resource page. It is keeping track of post-Blakely decisions and news, and has links to the major weblogs covering the case. If you're a defense lawyer, you should bookmark it now.

Update: If you've missed TChris posting the past few days, he's been busy writing a Blakely brief for the 7th Circuit. He'll be back soon. He recognized the importance of the Blakely decision at the time of oral argument.

Here's some of the Post-Blakely court action to date. Law Prof Doug Berman's Sentencing Law and Policy is totally on top of it. And say hello to the Blakely Blawg .

Utah is the big one of course, U.S. v. Croxford. There is a federal W. Virginia decision in U.S. v. Shamblin. Sentencing Law and Policy reports:

Judge Goodwin concluded that a defendant involved in significant drug operation --- who would have received a life sentence before Apprendi and 20 years before Blakely --- could only now be sentenced to a term of 12 months! Interestingly, in footnote 11 of this opinion, Judge Goodwin expressly rejects Judge Cassell's conclusions in US v. Croxford about the right way to sentence now in light of the conclusion that Blakely applies to the federal guidelines.

Then, also from SL&P, here's a partial transcript from a Maine federal sentencing on June 28, 2004 in U.S. v. Fanfan:

The federal judge that sentenced the D.C. 'Tractor Man' to six years in prison last week has signed an order reducing his sentence to 16 months due to the Supreme Court's Blakely decision. He was released from prison today.

Still wearing his navy blue jail uniform, Dwight W. Watson was set free tonight, nearly 16 months after driving his tractor onto the Mall and making a phony bomb threat in a protest that paralyzed parts of the city.... Watson's release came a few hours after a federal appellate court rejected a last-chance effort by the Justice Department to keep him locked up. Federal prosecutors had been scrambling since U.S. District Judge Thomas Penfield Jackson cut Watson's sentence to 16 months. With credit for good behavior, Watson's time was up.

Prosecutors contended that there was no reason for Jackson to act, arguing that the judge had misinterpreted a Supreme Court ruling issued June 24, a day after Watson's sentencing. Jackson said the decision, handed down in an unrelated case, convinced him that he had unjustly added time to Watson's sentence in a way the Constitution did not allow. Prosecutors wanted Watson to stay in jail while they appealed Jackson's ruling, but the appellate court turned them down.

Congrats to A.J. Kramer, Watson's federal defender.

Who would have thought? Conservative, Bush appointee Paul Cassell, who is now a federal judge in Utah, has found the U.S. sentencing guidelines to be unconstitutional in their application.

Law Professor Douglas Berman, who writes the new law blog, Sentencing Law and Policy, says Cassell is the first federal judge to officially declare the federal sentencing guidelines unconstitutional after Blakely. Here is a link to Judge Cassell's opinion in US v. Croxford.

A Utah judge on Tuesday declared federal sentencing guidelines cannot be constitutionally applied in a child pornography case, taking the lead in a national debate sparked last week by the U.S. Supreme Court. "I take no pleasure in striking down the guidelines today . . . but the court's fundamental obligation is to uphold the Constitution," U.S. District Judge Paul Cassell said in declining to follow the guidelines implemented by Congress more than 15 years ago.

Though he was careful to say his decision applied only to the case at hand, Cassell later noted in a 39-page order the "potentially cataclysmic implications of such a holding." In his written order, Cassell announced he intends to continue issuing sentences without regard for the guidelines "until the constitutionality . . . has been definitely resolved by the Supreme Court." However, he said he will also issue a "fallback sentence" to avoid resentencing each defendant if the guidelines are ultimately found to be constitutional.