Sentencing Law and Policy Web Log s1

Sentencing Law and Policy Web Log

August 2, 2004 through August 31, 2004

Tuesday, August 31, 2004 1

An early brief to SCOTUS, sort of 1

More from the Seventh Circuit (and Judge Easterbrook) 1

Judge Presnell Speaks again! 2

Consecutive questions about consecutive sentencing 3

Seeking restitution on restitution 3

Monday, August 30, 2004 4

Yet another helpful (future FSR) resource 4

Alternative (sentencing) universe? 5

Back to School, Blakely style 5

Thoughtful discussion of federal sentencing 6

Sunday, August 29, 2004 7

An "official" Blakely scorecard 7

Gearing up and taking stock 8

Saturday, August 28, 2004 8

Formalism meets functionality: An Ohio case study 8

Still more on the prior conviction exception 10

Blakely back in the news 11

Friday, August 27, 2004 12

More guidance from the 9th Circuit 12

Blakely's impact in Ohio 13

Fascinating Ohio case (with lots of Blakely talk) 15

Distinguishing the federal system structurally? 17

Thursday, August 26, 2004 18

More Blakely insights from NACDL 18

Rehabilitating Rehabilitation 18

Interesting facets of the Koch dissent 19

The 6th Circuit Speaks!! 20

Unpublished opinions and Blakely 22

Popping its head out of the sand 22

Astute words from the Third Circuit 23

Wednesday, August 25, 2004 24

More details about the USSC's briefing plan 24

The First Circuit chats about ineffective assistance 25

Worthwhile reading 25

Reports from today's USSC Meeting 26

The Third Circuit chats about Blakely 26

Noteworthy Circuit Snippets 27

Tuesday, August 24, 2004 28

A bit of late day Blakely news 28

More Minnesota remands 29

If you're in DC looking for a Blakely fix... 29

A bit of Blakely background 30

Dollars and Sentencing 30

Interesting sentencing case, though Blakely shaky 31

Monday, August 23, 2004 31

Reasons for broader sentencing reconsideration 31

Tracking Blakely decisions 32

Sorry, Washington, no rehearing in Blakely 32

Complicated statutes and statutory complications 33

Sunday, August 22, 2004 34

Blakely week in review 34

Collateral Sanctions and Blakely 34

Saturday, August 21, 2004 35

A Capital idea: Some non-Blakely news 35

The next big Blakely issue: the prior conviction exception 36

Good timing (and good analysis) in Wisconsin 37

Friday, August 20, 2004 38

Federal and state news in Indiana 38

When will Booker and Fanfan be decided? 39

Blakely all-around 39

The future of federal sentencing? 41

Thursday, August 19, 2004 42

Insightful defense perspectives 42

It really is the end of the world, when... 43

Principle versus pragmatism 44

Spanning the States 45

Wednesday, August 18, 2004 46

The 11th Circuit Speaks (again on plain error)! 46

Teaching Blakely 47

Another SCOTUS option for handling Blakely 47

Grand Ole Blakely 48

A jury trial on criminal history? 48

Tuesday, August 17, 2004 49

More interesting (if dated) news from Florida 49

Interesting applications of Ameline 50

Forthcoming FSR Blakely issue 51

For Shame ... I mean, Against Shame 52

Blakely news from Oregon 53

Blakely news from California 54

Professor Alschuler Speaks! 55

Blakely snippets 55

Monday, August 16, 2004 56

Question 4 answered: Eighth Circuit takes Pirani en banc 56

District judges keep up the good work 56

Our moral blind spot? 57

Exciting Blakely question for the week ahead 57

Sunday, August 15, 2004 58

Mark your calenders for USSC meeting 58

Catching up on Blakely news 58

Saturday, August 14, 2004 59

I'm home . . . and grumpy about the Sixth Circuit 59

Blakely and the Slow Flow of Cases 60

Has the Sixth Circuit ruled? 61

The Empire Strikes Back 61

Friday, August 13, 2004 62

Judge Goodwin speaks about alternative sentencing 62

DOJ Form Letters and Mandatory Minima 63

Morning Blakely review 64

The ABA Report's Lucky Timing 64

Interesting insights from Michigan 65

Thursday, August 12, 2004 66

Second thoughts about the Second Circuit 66

Second Thoughts in California's Fifth District 66

The Second Circuit's Backup Plan 67

ABA Justice Kennedy Commission Report and its Namesake 68

The Myth of Economical Parallel Sentences 68

Wednesday, August 11, 2004 69

DWI, Word on the Street in NC, part II 69

Blakely and victims' rights 70

Blakely's impact on restitution and habeas 71

Spanning the Circuits 71

Tuesday, August 10, 2004 72

What jury sentencing looks like 72

Enron Runs On 73

Last One Standing 73

Ain't that a shame 74

Monday, August 09, 2004 75

Full Mooney en banc hearing 75

Luna and R.E.M. are humming in Philadelphia 76

Monday To-Do List: Revise Federal Sentencing Laws 76

Sunday, August 08, 2004 77

Week in Review 77

What is it about the even circuits? 77

Word on the Street in NC 78

Saturday, August 07, 2004 79

Tuesday, August 31, 2004

An early brief to SCOTUS, sort of

I have tomorrow circled on my calender because September 1 is the date that the Acting Solicitor General (and any amici in support of petitioners) must file briefs in Booker and Fanfan. I expect the brief from the SG's office to be brilliant and pathbreaking, though whether it will be convincing to the Justices is the big question. Whatever the case, I hope to be able to share the SG's brief (and also the USSC's expected amicus brief) tomorrow afternoon.

In the meantime, Professor Frank Bowman has been kind enough to share with me his own brilliant and pathbreaking work in the form of an article which he has described as "his amicus brief" to the Supreme Court. The article, which can be downloaded below, is forthcoming in the American Criminal Law Review and is entitled "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington."

Of course, readers of the blog should be familiar with Frank's work through his insightful and noteworthy memoranda to the US Sentencing Commission soon after Blakely was handed down (available here and here). A summary of this latest effort can be accessed through the SSRN service here, though the entire article demands to be read to appreciate all of the nuances and metaphors in Frank's work. Let me here share the provocative article's evocative opening paragraph:

On June 24, 2004, five black-clad figures seized control of the Criminal Justice Express, crashed through warning barriers, flattened the Washington State Sentencing Guidelines, opened the throttle, and sent the train hurtling from the main line down the old rail spur where the Federal Sentencing Guidelines and the sentencing systems of numerous states lay tied helplessly to the tracks. Whereupon, the 2003 Term of Court being concluded, the justices twirled their collective mustachios, sent their robes off to the cleaners, and went on vacation. Two months on, as this Essay goes to press, the rest of us stand staring slack-jawed, some delighted and some aghast, at the disarray and paralysis in the locomotive’s wake and the impending carnage at the end of the line.

Download bowman_trainwreckssrn.pdf

August 31, 2004 at 06:06 PM

More from the Seventh Circuit (and Judge Easterbrook)

Just out from the Seventh Circuit is US v. Messino, 02-1411 (7th Cir. Aug. 31, 2004), which provides more guidance on the holdings of Blakely and Booker. Though a quick analysis is hard because there are three defendants' claims involved, it does not appear that any new ground is broken by the majority on basic guideline issues. But the opinion includes this interesting discussion about Blakey's effect (or lack of ) on forfeiture:

We have previously held that Apprendi has no effect on criminal forfeiture proceedings because forfeiture provisions have no statutory maximum. United States v. Vera, 278 F.3d 672, 673 (7th Cir. 2002). Apprendi’s statutory maximum was supplied by the statute of conviction; Blakely's is external—the statutory maximum is found not in the criminal code, but instead, the sentencing guidelines. See Booker, 2004 WL 1535858, at *1. The criminal forfeiture provisions do not include a statutory maximum; they are open-ended in that all property representing proceeds of illegal activity is subject to forfeiture. Vera, 278 F.3d at 673; U.S.S.G. § 5E1.4; 21 U.S.C. § 853. Therefore, we conclude that Blakely, like Apprendi, does not apply to forfeiture proceedings.

In addition, Judge Easterbrook dissenting in part in Messino has a number of interesting and important points to make about plain error review and also burden of proof issues. Further commentary on Judge Easterbrook's important (and contestable) insights will have to await another post late tonight.

August 31, 2004 at 02:51 PM

Judge Presnell Speaks again!

Despite being in hurricane alley, US District Judge Gregory A. Presnell of the Middle District of Florida continues to do amazing and important sentencing work (his prior rulings can be found here and here). His latest contribution comes in US v Shelton, No. 6:04-cr-72-Orl-31KRS (M.D. Fla. Aug. 30, 2004), which can be downloaded below.

After running through standard guideline calculations in a relatively standard crack case, here's what Judge Presnell says in Shelton:

There you have it — a simple, rational, fair and humane way to determine an appropriate sentence under the U.S. Sentencing Guidelines. In sum, Defendant is not an individual, he is a number, i.e., 31-VI.

In U.S. v. King, Case No. 6:04-cr-35-Orl-31KRS, this Court held the U.S. Sentencing Guidelines unconstitutional, but indicated that it would look to the Guidelines for guidance. In this case, the Guidelines do not produce a just result. Mr. Shelton is a small-time drug user/dealer. The instant offense involved a trivial amount of drugs and his prior convictions (all served in one concurrent sentence) are subjectively stale by any reasonable standard. Under these circumstances, a 15-year sentence is clearly unwarranted.

This case illustrates the concern Justice Kennedy expressed by America’s reliance on incarceration as a means of criminal punishment, especially for drug-related offenses. At its meeting on August 10, 2004, the American Bar Association’s House of Delegates approved the Kennedy Commission’s recommendations which, among other things, urge repeal of mandatory minimum sentences and the exercise of judicial discretion; reserving lengthy sentences (like this) for offenders who pose the greatest danger to the community. Defendant is not one of these people.

Considering all relevant factors, including Defendant’s criminal history, the Court believes that a sentence of 70 months is appropriate.

Download us_v. Shelton (04-cr-72).pdf

August 31, 2004 at 01:40 PM

Consecutive questions about consecutive sentencing

As I have suggested before here and here, the "prior conviction" exception should be — and perhaps through Shepard v. US will be — the next major Blakely issue for the Supreme Court to address after they resolve in Booker and Fanfan the applicability of Blakely to the federal guidelines. But two cases from the California state courts yesterday highlight that the issue of Blakely's applicability to judicial imposition of consecutive sentences will need to be directly addressed soon, too.

In People v. Vue, 2004 WL 1922504 (Cal. App. 3d Dist. Aug. 30, 2004), and People v. Lopez, 2004 WL 1922844 (Cal. App. 6 Dist. Aug 30, 2004), two different intermediate California appellate courts amended opinions to reject Blakely-based attacks on the imposition of consecutive sentences. Interestingly, in both cases the court said that, even if Blakely applies to factors used to impose consecutive sentences, the defendants' claims would be unavailing because of facts established at trial or admitted in a plea. Whatever one thinks of the specifics of these interesting rulings, they are a reminder of another important "Blakely front." (Recall that the California Supreme Court has agreed to consider this specific question in People v. Black, discussed here, though I suspect rulings in various states that will struggle with this question may not all end up consistent in their interpretations of Blakely and the Sixth Amendment.)

August 31, 2004 at 10:08 AM

Seeking restitution on restitution

Because restitution orders are becoming more common in state and federal courts, many have wondered whether and how Blakely might impact such orders. As noted here, the Tenth Circuit previously spoke quickly (perhaps too quickly) to this issue in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004).

Yesterday the Ninth Circuit in US v. DeGeorge, 2004 WL 1920922 (9th Cir. Aug. 30, 2004), contributed a view on the restitution issue in a case applying an older federal law on victim restitution. Here's what the court said:

We first review the restitution order made by the district court pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. §§ 3663-3664, which is unaffected by Blakely. See, e.g., United States v. Baker, 25 F.3d 1452, 1456 (9th Cir. 1994) ("[R]estitution determinations under the VWPA are quite different from sentencing determinations under the Sentencing Guidelines.").

Sentencing Law and Policy Web Log s1

Table of Contents

August 2, 2004 through August 31, 2004

Tuesday, August 31, 2004