August 2004, Page 10

A Blakely Primer: An End to the Federal Sentencing Guidelines?
By Steven G. Kalar; Jane L. McClellan; Jon Sands

This is as strange a maze as e’er men trod
And there is in this business more than nature
Was ever conduct of: some oracle
Must rectify our knowledge.
—William Shakespeare,
The Tempest act 5, sc. 1.


You’ve got to be careful if you don’t know where you’re going ‘cause you might not get there!
—Yogi Berra.1


Blakely v. Washington continues the “watershed change in constitutional law” that dissenting Justice O’Connor prophesied, Cassandra-like, in Apprendi v. New Jersey.2 Indeed, Blakely foreshadows the final act in the Apprendi drama, as the jury — rather than the judge — becomes increasingly empowered to determine enhancement facts that dramatically increase a defendant’s sentence. Is Blakely the penultimate blow to the federal sentencing guidelines? Does the case, as the Blakely dissents warn, threaten 20 years of sentencing reform? While the future is uncertain, what is clear is that the Supreme Court ushered in a vastly different world with the June 24th decision. While we do not claim to be the oracle who can “rectify our knowledge” of this intriguing case, we hope that in this article we can help the practitioner to navigate this strange Blakely maze.

Blakely stresses that Apprendi is to be taken seriously: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”3 Blakely is of such importance because it extends the Apprendi rationale from facts that increase a statutory maximum to all facts that increase a determined sentencing guideline. Stated differently, the decision expanded Apprendi from the limited pool of cases where the statutory maximum is affected, to the near-limitless universe where higher guideline sentences come into play by virtue of relevant conduct. It appears that this holding tolls the death knell of the federal sentencing guidelines.

With this understanding, we pose ten basic Blakely questions and attempt to provide some guidance for the practitioner. This article is to be taken as a primer on Blakely, its significance and the opportunities (and dangers) the case presents. The waning months of 2004 will be a critical time for sentencing reform, and for shaping the impact of Blakely upon sentencing and the federal sentencing guidelines. The impact of Blakely on the federal sentencing guidelines has been sudden and swift, with reverberations felt from district courts to the halls of Congress. We defense counsel must seize the opportunity to shape the landscape of this brave new world.

1. What are the Facts in Blakely?
Ralph Blakely had a long history of mental problems and had been diagnosed at various times in his life as suffering from schizophrenia.4 Undoubtedly this made him a difficult man to live with and contributed to his poor handling of the domestic dispute when his wife filed for divorce. The Blakelys owned considerable property, including a home, ranch, and development property in Montana, and another home and orchard in the state of Washington.5 Ms. Blakely filed for divorce, obtained a restraining order, and moved to Spokane from Montana. Angry because of pending trust litigation concerning their property, Ralph Blakely abducted his wife in Washington at knife point, bound her in duct tape, forced her into a wooden box in the back of his pickup truck, and then commanded his 13-year old son Ralphy to follow him, all the while threatening to harm his wife. The son escaped, but Blakely made it to Montana with his estranged wife, where he was arrested.

The state charged Blakely with two counts of first-degree kidnapping involving domestic violence. Blakely entered into a plea agreement, however, that reduced the charges to one count of second-degree kidnapping involving domestic violence and use of a firearm and one count of second degree assault involving domestic violence. The statutory maximum for the more serious charge of second-degree kidnapping was 10 years, because it was a Class B felony. According to the state sentencing rules, the sentence for the less serious charge of assault ran concurrent with the kidnapping sentence.

Under the state’s determinate sentencing guideline scheme, the “standard sentence range” or presumptive sentence for the kidnapping charge was 49 to 53 months. Under the Washington sentencing guidelines, the sentencing court must impose a sentence within the standard sentence range, unless the court finds aggravating or mitigating circumstances by a preponderance of the evidence that justify an “exceptional sentence.” Further, under the Washington guidelines, the judge may not depart upward because of a fact already taken into consideration as an element of the crime of conviction, nor may it consider facts that establish the elements of a more serious crime or additional crimes.

Under the terms of the plea agreement, the prosecutor recommended a sentence at the high end of the guideline range — 53-months. The judge rejected the recommendation and instead conducted a full-fledged sentencing hearing with witnesses. At the end of this hearing the court found that Blakely acted with deliberate cruelty, one of the specified statutory aggravating factors. The court then sentenced Blakely to 90 months — 37 months greater than the 53-month high-end of the range, but still 30 months less than the statutory maximum. Blakely appealed, arguing Apprendi required any increase to the presumptive sentence maximum must be found by proof beyond a reasonable doubt.


2. What Did the Supreme Court Hold?
The Supreme Court, 5-4 in a majority decision by Justice Scalia (joined by Justices Stevens, Souter, Thomas, and Ginsberg), held that Apprendi’s requirement that any fact, other than a prior conviction, that raises the penalty beyond the prescribed statutory maximum must be submitted to the jury and found beyond a reasonable doubt.6 The cornerstone of the Court’s decision was a radically new definition of the term “statutory maximum” sentence. In Blakely, the Court defined “statutory maximum” for Apprendi purposes as the “maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”7 The Court made it clear that there must be a finding “beyond a reasonable doubt” for the elements of an offense — in this case, those facts that created a ten-year statutory-maximum sentence. The Court also explained, however, that a “reasonable doubt” finding must also be applied to those enhancement facts that permit sentencing above the presumptive guideline range — what the Court considered to be a “statutory maximum” created by virtue of legislated determinative sentencing. Under the Washington scheme, the “standard sentence range” or presumptive range is based on only the elements of the offense, because the offense level is set by the crime of conviction and nothing else. This, then, is the spark that fuels the Blakely inferno: the top of the “base” guideline range is now treated as a “statutory maximum,” and is entitled to all of the procedural protections set forth in Apprendi.

Convinced that his approach guarantees the constitutional role of the jury as a bulwark against the might of the state, Justice Scalia has little patience with the worries of the dissenting justices.

For example, Justice Scalia opines that the dissent’s concern that the state may enact “17-element” crimes is not a legitimate concern, because bargaining already exists with regard to sentencing factors. “Every new element that a prosecutor can threaten to charge is also an element that a defendant can threaten to contest at trial and make the prosecutor prove beyond a reasonable doubt.”8 Justice Scalia also dismisses in an extremely flippant manner the dissent’s purported view that a sentence enhancing factor still cannot be so long that it becomes the “tail that wags the dog,” by stating that he is unaware of the source of the constitutional principle that “tail shall not wag dog.” The Court will not develop a line of jurisprudence that establishes a ratio of comparing sentence lengths to the length of tails compared to the “caudal vertebrae” of canines.9



3. It Sounds Pretty Compelling. Could the Decision Have Come Out Differently?
Sure. As noted above, the key turning point in the decision is the definition of “statutory maximum.” The Court could have defined this term to mean only the legislative maximum sentence for a given offense. Instead, the Court focused on the practical effect of a determinate guideline system: a statutory maximum sentence is the expected punishment upon proof of the elements of a statute.

Enhancement facts that create a sentence above this expected punishment must be proved beyond a reasonable doubt to a jury. For example, a federal sentence for drug trafficking that was below what we normally think of as the “statutory maximum” of, say, 20 years could still presumably violate Apprendi/Blakely if the sentence was enhanced by facts not found by the jury (such as the amount of drugs involved, the defendant’s role in the offense, use of a minor, etc.).

Had the Court simply not embraced this new definition of “statutory maximum,” the petitioner in Blakely would have lost and the federal sentencing guidelines would have been secure from our new constitutional attacks.


4. What Do the Dissenters Have to Say, and Will Their Points Impact How Blakely Develops?
There were three separate dissenting opinions, each taking a different tack. Justice O’Connor’s dissent (joined by Justice Breyer in its entirety, and by Chief Justice Rehnquist and Justice Kennedy except as to Part IV-B addressing the possible impact on the federal guidelines) bemoans that this decision, following Apprendi and Ring, signals an end to the 20-year experiment in determinate sentencing.

To Justice O’Connor, Blakely will consolidate sentencing power in the judiciary because the alternative — noticing and proving all enhancement facts to a jury — is too expensive and unwieldy.

Justice O’Connor takes issue with the originalist approach of Justice Scalia, complaining that broad judicial sentencing discretion was foreign to the Framers and thus they could not have made the choice between enhancement facts going to the judge or jury. The Justice’s biggest concern, however, is the impact of Blakely on sentencing reform. Justice O’Connor observed that the guideline reforms of the past 20 years were instituted to bring more uniformity to the system and eliminate unwarranted disparity, so that similarly situated defendants would be sentenced to roughly the same sentence. The reforms were also designed to combat invidious racism. Toward this end, the strides made by guideline reforms, she argues, are jeopardized.

In Part IV-B of Justice O’Connor’s dissent (joined only by Justice Breyer), she goes so far as to say that this decision must impact the federal sentencing guidelines. She notes that the differences between the Washington state guidelines and the federal guidelines (discussed more, infra), are not constitutionally significant. In fact, she notes that the federal guidelines are even more vulnerable in their structure to constitutional attack under the Apprendi analysis than are the Washington guidelines. “If the Washington scheme does not comport with the Constitution, it is hard to imagine a guidelines scheme that would.”10 

Unimpressed, the majority counters that determinate sentencing schemes are still permissible, but that the defendant who commits a crime should have an expectation of his sentence under the facts proved beyond a reasonable doubt, and should not be further punished by a higher prescribed range on facts proved by a lesser standard. The majority declines to decide whether the federal guidelines are unconstitutional, because they “are not before us,” and thus the majority would “express no opinion on them.” 11

Justice Kennedy, in his short dissent, decries the breakdown between the Judicial and Legislative branches that this decision portends. Justice Kennedy portrays sentencing as a collaborative process between legislatures and courts, as the system is reformed to achieve important ends of the criminal justice system including uniformity in sentencing. Justice Kennedy joins with Justice O’Connor in rejecting the majority’s requirement that enhancement facts in the sentencing guidelines be proved beyond a reasonable doubt.

What is a bit strange about Justice Kennedy’s dissent is that he attacked the draconian federal sentencing scheme, in a well-publicized speech before the ABA earlier in the year, and called for reforms. The vaunted judicial-legislative collaboration he asks for in his dissent in practice has been one-sided at best, as illustrated by the Feeney Amendment and the PROTECT Act — sentencing legislation openly despised by the judiciary. Contrary to Justice Kennedy’s optimistic characterization, Congress and legislatures have turned a deaf ear to many reforms, and have increasingly ratcheted up the sentences.

Justice Breyer’s dissent must be read with a twinge of sadness. He served on the nascent sentencing commission, and helped fashion the approach to punishment in the federal sentencing guidelines that has now been called into question. Justice Breyer, one of the primary proponents and authors of the “relevant conduct” concept, now sees his legacy eroded, if not completely breached by Blakely. Justice Breyer finds no constitutional requirement that all facts go to the jury, and believes that such an approach actually undermines fairness in the criminal justice system. He then turns to what will be left in the aftermath of Blakely. He sees three alternatives: statutorily mandated sentences, a return to indeterminate sentences, or a hybrid approach, where sentencing schemes are modified to take into account sentencing elements. For Justice Breyer, dangers lurk in each of these three alternatives.

Justice Breyer warns that the mandatory-sentence approach could be even more harsh than the federal sentencing guidelines and shift more power to the prosecutors. Mandatory sentences create a great risk of unfairness to variously situated defendants. The indeterminate approach returns sentencing to a system where disparity was rampant, again leading to unfair sentences for similarly situated defendants.

Finally, the hybrid approach may prove unworkable because it would require that all enhancement facts be noticed and charged, and would bring the jury into both the guilt and sentencing phases. The prejudice to the defendants could be, in Justice Breyer’s eyes, worse than having a judge decide the enhancement sentencing facts. In his view, judges are probably better than juries when it comes to making sentencing determinations. (Of course, Justice Scalia points out that “[i]t is hard to believe” that the NACDL, which filed an amicus brief on behalf of Blakely, “was somehow duped into arguing for the wrong side.”)12

Justice Breyer, in closing, also calls into question the federal guidelines. He, like Justice O’Connor, sees chaos ensuing as the federal courts (and many of the state courts) try to figure out the ramifications of this opinion. He is right in that respect. And so to that chaos we turn.

5. Are the Federal Sentencing Guidelines Unconstitutional?
That is the BIG question. The Supreme Court may be answering this question very soon if an appeal is expedited. We believe that the federal sentencing guidelines under the Blakely analysis are unconstitutional, because any differences between the federal sentencing guidelines and the Washington guidelines are constitutionally insignificant.
Consider first the federal system. Each federal offense has a statutory maximum sentence set by Congress, and contained in the criminal code. The federal sentencing guidelines, however, determine a presumptive guideline range. This presumptive range is almost always lower than the maximum for the offense itself (a court cannot sentence a defendant above the statutory maximum), and is determined by calculating the offense level, which consists of a base offense level adjusted by “specific offense characteristics” and other enhancements, and the defendant’s criminal history category.

Once these two criteria are determined (offense level and criminal history category), the result is a sentencing “cabin” or range found on the sentencing table or grid. The guidelines state that the court shall sentence the defendant within the calculated guideline range, unless the court finds sufficient reasons to upward or downward depart from that range.
The federal guideline system is a very close analogue to the Washington state system that Blakely invalidated. Blakely may also signal that the finding in Mistretta v. United States — that the guidelines are not an excessive delegation of legislative powers and do not violate the doctrine of separation of powers — is subject to attack.13 

In fact, the recent PROTECT Act has brought this whole issue up for reexamination. If the guidelines do violate the separation of powers or delegation of powers doctrines, then the whole edifice of the federal sentencing guidelines collapses. This approach is for another day and another article.


6. Can’t the Government Distinguish the Two Systems?
It will try, but its attempts should be unavailing. There are two major differences between the federal sentencing guidelines and the Washington guidelines, which involve the method of promulgation and the structure of the guidelines.
First, with regard to how the guidelines are created, the difference is legislative versus judicial. In Washington, the state legislature directly promulgates the guidelines; under the federal system, Congress delegates the authority to promulgate guidelines to an independent agency within the Judicial Branch. 

The second major difference involves the structure of the guidelines. Under the Washington guidelines, the offense level is determined based on the “offense of conviction,” and nothing else — it is a “charge offense” way of sentencing.
However, under the federal guidelines, the offense level is determined based on a myriad of facts, many of which are not elements of the offense — it is a “real offense” way of sentencing. Neither distinction between the guidelines — how they are created or how they are structured — should make any difference under Blakely
.
The “legislative versus judicial” distinction is a distinction without a difference. Indeed, the distinction itself is not even so clear. Washington, too, has a sentencing commission which promulgates guidelines, although the commission appears to be a branch of the legislature.

The purposes of both the state commission and the federal sentencing commission are quite similar. They study sentencing trends, take input from several sources (prosecutors, defense attorneys, probation officers, victim advocate groups), and recommend periodic amendments to the guidelines. (It is interesting to note that the Washington sentencing commission has two voting members who are defense counsel.)

The purpose of the guidelines under both systems is similar — to increase sentencing uniformity, eliminate racial disparity, and to further the purported goals of punishment (retribution, education, deterrence, and incapacitation).14

In the federal system, the distinction between legislative versus judicial agency has been blurred. Congress has the authority to approve, reject, or amend guidelines that are proposed by the U.S. Sentencing Commission. Frequently Congress has instructed the Commission to make actual guideline changes. Further, the PROTECT Act has called into doubt the “independence” of the Commission, because Congress directly amended the guidelines without input from the Commission, and, as part of the PROTECT Act, Congress limited the participation of the judiciary on the Commission to no more than three members. Prior to that amendment, at least three of the members of the Commission had to be federal judges.

In short, Justice Scalia may have had it right when he characterized the U.S. Sentencing Commission in the Mistrettacase as a “junior-varsity” Congress.

Writing for the majority, Justice Scalia draws no distinction between the federal and Washington State sentencing schemes; he merely states that the issue is not before the Court. (This is reminiscent of Apprendi when the Court declined to address the Walton issue of judicial capital sentencing, only to overrule the case two years later).15 

Justice O’Connor is less circumspect. She clearly believes that the federal sentencing guidelines cannot stand under the majority’s analysis in Blakely. As she stresses, “[t]he fact that the Federal Sentencing Guidelines are promulgated by an administrative agency nominally located in the Judicial Branch is irrelevant to the majority’s reasoning.”16 

Notably, the government filed an amicus brief in Blakely, no doubt because it was concerned that this case could impact the federal guidelines. The government conceded in its brief that it was not “entirely clear that the administrative nature of the guidelines will insulate them from Apprendi.” 17

The differences in structure between the federal guidelines and the Washington guidelines are likewise of no significance. As explained above, under the Washington system, the offense level is based on only the offense of conviction. Washington refers to it as the “real facts” doctrine, but it is a “charge offense” system where only the crime of conviction is considered. The judge may not consider any facts that constitute a more serious crime or additional charges. In the federal system, we have a “real offense” system, where the judge may consider uncharged conduct, such as relevant conduct, dismissed conduct, and even acquitted conduct. Many of the factors that are used to determine the sentence are not elements of the offense, such as the drug amount or loss amount in a fraud case. As Justice O’Connor observed, “[i]f anything, the structural differences that do exist [between the Washington system and the federal] make the Federal Guidelines more vulnerable to attack.” 18

The federal government, half-heartedly or not, is now trying to defend its guidelines. At the time of this writing (July 2004), the Department of Justice has filed appellate briefs arguing that the fact that the Sentencing Commission — and not Congress — promulgates the federal guidelines saves the guidelines from Blakely attack. (The Seventh Circuit just rejected this argument, as explained below.) In a July 2, 2004, policy memo, the Department of Justice took the position 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 . . . .” The fallback position of the Department of Justice is that the guidelines as a whole are unconstitutional.



7. Are the Lower Federal Courts Finding That the Guidelines Are Unconstitutional?
Yes. As of this writing, the authors are aware of numerous sentencing hearings that have taken place since June 24 (“Blakely-day”) in almost every district of the United States where the courts have applied Blakely in some way, by either not applying certain sentencing enhancements or disregarding the guidelines completely. We are aware of bench orders at sentencing hearings and written decisions in almost every federal circuit wherein district court judges or circuit judges have held or stated in dicta that Blakely changes the way that they must sentence criminal defendants.19 

In some courts, judges are seeking to empanel sentencing juries to find additional sentencing facts, and many courts are giving dual sentences — a “guideline” sentence and a “non-guideline sentence” finding that the guidelines are advisory only.

Chief Judge Young in the District of Massachusetts was prescient and held in a long written opinion that was published on June 18, 2004 — before Blakely was decided — that the guidelines are unconstitutional.20 

At the time we completed this article, there were three circuit court opinions finding that the guidelines were unconstitutional, one circuit court opinion finding that Blakely did not apply and the guidelines were constitutional, and one court, the Second Circuit, did not decide the issue and chose instead to certify the issue to the Supreme Court. In United States v. Booker, Judge Posner of the Seventh Circuit held that the guidelines, insofar as they require that sentences be based on facts found by a judge, “are doomed.”21 Judge Posner stated that “[t]he vices of the guidelines are thus that they require the sentencing judge to make findings of fact (and to do so under the wrong standard of proof), and that the judge’s findings largely determine the sentence, given the limits on upward and downward departures.”22 

In Booker, the defendant had been found guilty at a jury trial of possession with intent to distribute at least 50 grams of cocaine base. His sentence was increased for the amount of additional drugs the government claimed he distributed, but had not been proven at trial, and for obstruction of justice.

The Seventh Circuit held that the defendant has the right to have a jury determine the quantity of drugs possessed and whether he obstructed justice. The Seventh Circuit instructed that the district court judge could simply reduce the defendant’s sentence on remand to a sentence that did not include enhancements for facts not found by a jury if the government did not object. However, the court stated that if the government did object then it could insist on a sentencing jury to prove up these additional facts — but only if the guidelines are severable.23 

The court did not rule on whether the guidelines are severable, because it stated that the issue was not before it. The court stated that if the guidelines are not severable, then the judge could sentence the defendant to any sentence between the mandatory minimum sentence of ten years and life, and the judge was “free to draw on the guidelines for recommendations as he sees fit.”24 The court also recommended that the judge should select a “nonguidelines alternative sentence” just in case the guidelines are found unconstitutional.

This is similar to the approach by Judge Cassell in the District of Utah in United States v. Croxford.25 Judge Cassell ruled that the federal sentencing guidelines cannot withstand the Blakely analysis, and because the “holistic” system is so premised on adjustments, the entire U.S. Sentencing Guidelines Manual must go. In another case, just a few days later, Judge Cassell found that the guidelines were constitutional as applied to a different defendant because that defendant had pleaded guilty and admitted all facts that formed the basis of his sentence, and further the defendant had agreed, in his plea agreement, to be sentenced according to the guidelines.26 

Judge Goodwin of the Southern District of West Virginia, on the other hand, found that the determinate system of federal sentencing guidelines is still constitutional, but, under Blakely, the adjustments or departures without jury findings beyond a reasonable doubt cannot be valid. Many courts are adopting this approach, at least for the time being, and eliminating the application of any specific offense characteristics, relevant conduct, or Chapter 3 adjustments (such as obstruction of justice) that have not been proven beyond a reasonable doubt or admitted by the defendant.

8. This is All Good, Right?
As Justice Breyer warned, be wary of what you wish for. With the federal sentencing guidelines in question, various “guideline fixes” are being bandied about in Congress. Among these fixes are proposals that will make the defense bar long for the “good old days” of the sentencing guidelines.

Proposed guideline fixes include making the statutory maximums of the offense the top of the guideline range. This would effectively make the “floor” the lower guideline range, with no upward guideline ceiling. This would require extensive revision to the federal sentencing statutes and guidelines, including elimination of the so-called “25% rule,” which requires that the maximum guideline range shall not exceed the minimum of that range by more than the greater of 25% or six months, and it would require massive revision to the federal sentencing table. This alternative is based on the assumption that Harris v. United States27 is still good law, which held that a fact that increases a minimum, e.g., brandishing a firearm versus mere possession, but not the maximum, does not violate Apprendi.

There is also the risk of more mandatory minimums, which Congress, despite widespread criticism, not only keeps in place but expands to more and more offenses.

Among the more palatable fixes is instituting the “Kansas system,” which is one example favorably discussed by Justice Scalia in his majority opinion. The Kansas fix would require prosecutors to notice the aggravating enhancement facts, and would then use the jury to determine both guilt and to decide these sentencing factors in bifurcated sentencing proceedings like death penalty cases. Like Dorothy, we may quickly yearn for Kansas when faced with the dangers of other alternative “fixes.” Concedingly, the Kansas system introduces new complexities to federal sentencing (as emphasized by Justice Breyer in his dissent). The Kansas system should, however, provide defendants with more bargaining leverage as enhancement facts are negotiated in the pre-indictment phase. Moreover, if juries are to find sentencing factors, then it may strengthen the argument that juries should be made aware of the possible punishments that they may be imposing on defendants when making their “sentencing factor” decisions, see page 20.

9. What Can I Do Now?
As we’ve noted above, much dust may have settled before this article goes to press. The Department of Justice is seeking expedited review in the Supreme Court of the constitutionality of the guidelines, and cases presenting the issue are now pending. As noted earlier, three circuit courts have already ruled the guidelines are, at least in part, unconstitutional. Legislative fixes swarm like bees in Congress, and the U.S. Sentencing Commission is mulling over whether it will continue to exist. Nonetheless, the chaos until the Supreme Court or Congress speaks presents opportunities for the defense. We suggest the following strategies for making the most of the Blakely confusion.

A. Pretrial/Plea
In the pretrial context and during plea negotiations, Blakely effectively creates a new opportunity for binding plea agreements. Under Federal Rule of Criminal Procedure 11(c)(1)(C), the parties have been able to agree to stipulated plea agreements, which district courts must accept in their entirety or reject. The problem with (c)(1)(C) agreements is that the U.S. Probation Office often sours the deals by disputing the parties’ calculation of the guideline range. Moreover (spurred by the probation officer), many courts are leery of (c)(1)(C) agreements and have rejected them, forcing new agreements or trials.

Blakely, however, may permit the parties to create the functional equivalent of a (c)(1)(C) agreement. The parties can negotiate the enhancement facts to be alleged in an indictment, the defendant can plead to only those facts, and the probation officer is then superfluous as to whether that is the appropriate sentence (because no other enhancement facts have been proved beyond a reasonable doubt). Query, moreover, whether a district court has the power to reject such a plea — after all, the defendant is admitting to all facts alleged in the indictment. Hence, Blakely may have the inadvertent effect of strengthening the parties’ ability to negotiate while minimizing the ability of the probation officer and the court to tinker with deals — a happy outcome, from the defense perspective. Of course, pre-indictment negotiation is now critical: defense counsel should do everything possible to linger in magistrate court and seek resolutions before indictments are returned.

For cases that do not resolve in a pre-indictment disposition, a number of motions are now available. The constitutional challenge to the guidelines is the foremost in our arsenal, and is a topic addressed elsewhere in this edition, see page 18. Another motion, however, exploits the uncertainty regarding the guidelines after Blakely: a motion to strike surplusage.

The heart of a surplusage motion is the certain “flexibility” enjoyed by the defense in our positions. To err on the side of safety, federal prosecutors now are expected to allege enhancement facts (such as “relevant conduct”) in an indictment itself. Such sentencing factors may be horrific allegations that are not elements of the offense.
For example, in the July 7, 2004, Superseding Indictment against former Enron CEO Kenneth Lay, the government added “Sentencing Allegations” charging that the defendant was a “leader and organizer,” that he “abused a position of public trust,” that the loss exceeded $100 million dollars, that the crimes involved more than minimal planning, that the crimes involved a scheme to defraud more than 50 victims, and it continues.28 Until the guidelines are ruled unconstitutional, these enhancement facts alleged in the indictment are surplusage, are improper Federal Rule of Evidence 404(b) facts, and are fair game for a motion to strike.

What if two defense counsel representing co-defendants in the same case take inconsistent positions in the same court, one moving to strike this surplusage and the second demanding Blakely-notice of all enhancement facts? One defendant, presumably, will win an excellent appellate issue. While we do not know the answer to this conundrum, we do know that precisely such conundrums often drive deals as a way for the government to simply avoid the issue.
In fact, this exact “whipsaw” approach spurred dozens of such deals in illegal re-entry cases in the Northern District of California after Apprendi was decided. Blakely provides the perfect opportunity to dust off the old Apprendi bag of tricks.


B. Discovery/Evidence
Blakely also demands a profound rethinking of federal discovery and the application of the rules of evidence. In the pre-Blakely world, a defendant was not entitled to much of the discovery relating to sentencing before a plea. Moreover, proof of enhancement facts at sentencing was routinely done through otherwise inadmissible hearsay.
Blakely, however, suggests that enhancement facts that formerly were “specific offense characteristics” or relevant conduct for sentencing are now effectively “elements” of the offense. As Justice O’Connor complained. “Under the majority’s approach, any fact that increases the upper bound on a judge’s sentencing discretion is an element of the offense.”30 

Elements, enhancement facts, or relevant conduct — the names are becoming less important. What is important is that facts that increase a sentence — like “leadership role” or “use of a minor” or “vulnerable victim” — are now facts that must be noticed and proved to a jury beyond a reasonable doubt. It is reasonable to assume that the defense should now get pre-plea or pre-trial discovery relating to those facts, instead of the government sandbagging us with evidence when the sentencing hearing rolls around. It is equally reasonable to assume that evidentiary protections apply when the jury considers these facts — hence, no more hearsay to prove sentencing relevant conduct. Justice Breyer asked in his dissent, “What, then, are the evidentiary rules? Can the prosecution continue to use, say presentence reports, with their conclusions reflecting layers of hearsay?”31 “No,” we say.

In other words, Blakely extends far more rights to the defendant fighting sentencing facts than simply a jury forum and higher standard of proof: by logical extension, the defense should also enjoy greater discovery rights and heightened evidentiary protections.


C. Trial
Blakely will also demand radically new trial strategies. First, a defendant may wish to accept Justice Scalia’s invitation and opt for judicial factfinding of particularly unsavory enhancement facts. “Even a defendant who stands trial may consent to judicial factfinding as to sentence enhancements, which may well be in his interest if relevant evidence would prejudice him at trial.”32 

Even if a defendant wants a jury to decide some of the sentencing enhancement facts, it may be prudent to seek bifurcation or severance of these allegations from the other elements of the offense. Note that Justice Breyer warns that a defendant may not have this choice of piecemeal litigation. States (and the federal government) may force the defendant to either admit to all elements and enhancement facts, or go to trial on all elements and facts alleged.33 Most circuits are already sympathetic to bifurcation or severance of inflammatory elements.34 It may be prudent to seek a similar severance or bifurcation of inflammatory sentencing enhancement facts — particularly when the relevant conduct alleged has little bearing on the underlying substantive charges. 35

Jury instructions present a special challenge. Justice Breyer warned of post-Blakely “highly calibrated” statutes that may have many subcategories.36 These new statutes would require lengthy special-verdict forms, foreshadowed by some of the Apprendi special verdict forms in drug cases that we’ve already seen thus far. Complicating matters are elements and sentencing factors mixed up in the same fact-finding forum. Could a jury, for example, acquit on the underlying conduct yet agree as to a sentencing factor? If the jury finds a defendant not guilty of a sentencing factor, could that create an inconsistent verdict with the underlying substantive offense? Won’t many instructions culled from the federal sentencing guidelines — such as dictated loss amounts for credit card fraud — create an unlawful unrebuttable presumption for the jury?

The one thing that is clear is that until there is Supreme Court or congressional action, a defendant should preserve an objection to any “sentencing” jury instruction. When it cobbles together jury instructions from the sentencing guidelines, a district court dons a legislative hat — a separation-of-powers faux pas that should be preserved for appeal.


D. Prior Convictions/Mandatory Minimums
Blakely appears to carve out an exception for prior convictions. This was the holding from Almendarez-Torres v. United States.37 In that case, which held a prior conviction was not an element of the offense for an enhancement, Justice Thomas was in the majority. It was when Justice Thomas switched sides in Apprendi that the sentencing re-examinations that involved Ring and now Blakely came to pass. Justice Thomas confessed that he was probably mistaken in Almendarez-Torres.38 It may be time to call him on it. In any event, all enhancements, even prior convictions, can be contested.

At least one district court, at the time of this writing, however, had dismissed this argument and noted that Blakely does not affect determinations regarding criminal history including a finding that a defendant had committed a crime of violence.39

Likewise, the constituents of both McMillan v. Pennsylvania40 and Harris (regarding mandatory minimums) appear increasingly incompatible with the reasoning of Apprendi and now Blakely
.
Justice Breyer, in concurring in the judgment of Harris, recognized that he “cannot easily distinguish Apprendi . . . from this case in terms of logic.”41 At this point, Justice Breyer may be compelled to throw in the procedural towel. The Eleventh Circuit just addressed this issue in Spero v. United States, and held that the imposition of a statutory mandatory minimum that was far above the guideline range and not alleged in the indictment did not violate the recently announced rule in Blakely following the reasoning of McMillan and Harris.42 In Spero, the defendants were found guilty of possession with intent to distribute heroin. The statutory maximum offense was twenty years and there was no mandatory minimum unless death or serious bodily injury resulted from the offense. If death or injury was shown, then the statutory mandatory minimum became twenty years and the maximum was life. At the original sentencing, the district court found by a preponderance of the evidence that the crime had caused the death of a drug user, and the judge imposed a twenty-year sentence. After an unsuccessful direct appeal, the defendants won on habeas based on Apprendi and they were sentenced to 60 months.

The government appealed, and the Eleventh Circuit held that because the sentencing factor only resulted in the imposition of a mandatory minimum it did not run afoul of Blakely. This seems ripe for reversal, we hope, by the Supreme Court.

E. Appeal
Cases on appeal present a clear choice: make the Blakely argument now or face bad retroactivity and habeas law in the future. Federal Rule of Appellate Procedure 28(j) permits a defendant to direct the court’s attention to the new Blakely decision and ask for an opportunity to brief the issue. If sentencing objections were not preserved in the district court, a defendant may face Olano plain error review on appeal.43 Review for plain error, however, is still better than review foreclosed; the likely result as prisoners flood the courts with Blakely habeas petitions. In a recent Ninth Circuit unpublished decision, in a case being remanded for resentencing where the defendant had contested a sentencing enhancement (on non-Blakely or Apprendi grounds), the court noted that the defendant “is free to raise on remand the question of whether [Blakely] affects his sentence.” 44

F. Habeas 
Lastly, we must consider whether defendants whose convictions are final can benefit from the ruling in Blakely. A good argument can be made that they can. While it would seem that the Supreme Court’s ruling in Schriro v. Summerlin, which was pronounced the same day as Blakely, might preclude any habeas review, the cases can be distinguished.45 In Summerlin, the Court addressed the issue of whether Ring v. Arizona should be applied retroactively to cases on habeas review.46 Ring extended Apprendi to find that juries, not judges, must find the aggravating factors that determine whether a defendant is eligible for the death penalty. The Court found that Ring established neither a new substantive rule of criminal law nor a new procedural rule that was a “watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”47 However, under the Arizona death-penalty scheme at issue in that case, the aggravating factors had been found by the judge beyond a reasonable doubt. So, the Court focused on whether a judge was somehow less accurate or fair than a jury when making this determination, concluding that a judge was not less fair or accurate. Here, the primary distinction is that the judge in a federal case, when applying the guidelines, does not make findings regarding sentencing factors by the higher standard of proof beyond a reasonable doubt.

Unfortunately, the Eleventh Circuit has already ruled that Blakely is not retroactive to a defendant filing his second or successive habeas petition.48

Justice O’Connor, however, in her dissent in Blakely, was clearly concerned about the issue of retroactivity. “[D]espite the fact that we hold in Summerlin that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review, all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack.”49 Therefore, we must consider filing habeas petitions for all federal defendants who were sentenced after Apprendi and whether their sentences can be attacked under the Blakely analysis.

10. The Future of Blakely
Writing this article is like racing a train that’s left the station; while we strive to describe the engine, we can barely see the caboose. We’re trying to catch up to events, but it is impossible. The Supreme Court will be facing numerous certiorari petitions that already raised or will be raising Blakely’s impact. There well may be circuit conflicts, and as such, the Supreme Court will undoubtedly decide this issue soon.

In the meantime, Congress is considering a short term Blakely “fix.” The proposals range from making the guidelines advisory to draconian possibilities such as imposing mandatory minimum sentences at the statutory maximums should a defendant not voluntarily “waive” any Blakely rights and submit to the guidelines.
Other proposals look to increase the top of the guideline range to the statutory maximum, but putting in a policy statement urging sentencing to stay within 25 percent of the minimum guideline range. The difficulty with this, aside from destroying the guideline concept in order to save it, is that it appears to be trying to offer a guideline ceiling without calling it that.

One intriguing possibility is a Kansas-model approach, with enhancements alleged in the indictment. This method seemingly has been adopted de facto by the field U.S. Attorneys, who are returning indictments, or superseding, with enhancements. Although it has not been tested in trial yet (with the issues we discussed above), and despite some protestations from Henny-Penny prosecutors that the sentencing sky is falling, this method appears to offer one workable solution until the federal sentencing guideline’s constitutionality is resolved, and even after.

It could well be that Congress decides to do nothing until the Supreme Court resolves the matter. The Sentencing Commission itself has to recognize that it is in a brave new world, and is likely to look afresh at its approach to relevant conduct, standards of proof, and cross-references.

As for defense counsel, there is not much that we can say with assurance when it comes to federal sentencing. We have tried to present an overview of the matter, and raise some issues at this uncertain, but opportune, juncture. In the end, though, the best advice, and cautionary warning, might be to recall again one of Yogi Berra’s profound insights, when he astutely observed: “The future ain’t what it used to be.”50 

Notes
1. Yogi Berra, The Yogi Book 102 (1998).
2. Blakely v. Washington, — U.S. —, 2004 WL 1402697 (June 24, 2004); Apprendi v. New Jersey, 530 U.S. 466 (2000).
3. Apprendi, 530 U.S at 490.
4. See Blakely, 2004 WL 1402697, at *2; see also State v. Blakely, 47 P.3d 149, 152 (Wash. Ct. App. 2002).
5. Blakely, 47 P.3d at 152.
6. Blakely, 2004 WL 1402697, at *4.
7. Id.
8. Id. at *8.
9. Id. at *8 n.13.
10. Id. at *17 (O’Connor, J., dissenting).
11. Id. at *6 n.9 and *16 (O’Connor, J., dissenting).
12. Id. at *9.
13. Mistretta v. United States, 488 U.S. 361 (1989).
14. Id. at 366-69 (summarizing the history of the federal sentencing guidelines).
15. See Ring v. Arizona, 536 U.S. 584, 609 (2002); Apprendi, 530 U.S. at 496.
16. Blakely, 2004 WL 1402697, at *16 (O’Connor, J., dissenting).
17. Brief for the United States as Amicus Curiae Supporting Respondent, Blakely v. Washington, — U.S. —, 2004 WL 1402697 (June 24, 2004) (No. 02-1632).
18. Blakely, 2004 WL 1402697, at *16 (O’Connor, J., dissenting).
19. See, e.g., 1st Cir.: United States v. Ducan Fanfan, No. 03-47-P-H, Transcript of Sentencing Hearing (D. Maine June 28, 2004); 2d Cir.: United States v. Medas, — F. Supp. 2d —, 2004 WL 1498183 (E.D. N.Y. July 1, 2004); United States v. Gonzalez, 2004 WL 1444872 (S.D. N.Y. June 28, 2004); 4th Cir.: United States v. Shamblin, — F. Supp. 2d —, 2004 WL 1468561 (S.D. W. Va. June 30, 2004); 9th Cir.: United States v. Wada, — F. Supp. 2d ___, 2004 WL 1488695 (D. Or. June 29, 2004); 10th Cir.: United States v. Montgomery, — F. Supp. 2d —, 2004 WL 1535646 (D. Utah July 8, 2004); United States v. Croxford, — F. Supp. 2d —, 2004 WL 1521560 (D. Utah July 7, 2004).
20. United States v. Green, — F. Supp. 2d —, 2004 WL 1381101 (D. Mass. June 18, 2004).
21. United States v. Booker, No. 03-4225, slip op. at 4 (7th Cir. July 9, 2004). See also United States v. Ameline, No. 02-30326 (9th Cir. Jul. 21, 2004)(guidelines unconstitutional and severable; United States v. Montgomery, 2004 WL 1562904 (6th Cir. Jul. 14, 2004)(guidelines unconstitutional). But see United States v. Pineiro, 2004 WL 1543170 (5h Cir. Jul. 12, 2004)(guidelines constitutional). Cf. United States v, Penaranda, 2004 WL 1551369) (2 nd. Cir, Jul. 12 , 2004)(certify question to Supreme Court.)See also United States v. Mooney, No. 02-3388 (8th Cir. Jul. 23, 2004)(guidelines unconstitutional, adopting approach in Croxford); United States v. Ameline, No. 02-30326 (9th Cir. Jul. 21, 2004)(guidelines unconstitutional and severable); United States v. Montgomery, 2004 WL 1562904 (6th Cir. Jul. 14, 2004)(guidelines unconstitutional; en banc review granted and decision vacated). . . .
22. Booker at 5 (citations omitted).
23. Id. at 9.
24. Id. at 11.
25. See Croxford, 2004 WL 1521560.
26.United States v. Lonnie Jay Thompson, No. 2:04-CR-00095-PGC, Memorandum Opinion Finding the Guidelines Constitutional as Applied to the Defendant’s Sentencing (D. Utah July 9, 2004).
27. 536 U.S. 545, 567 (2002).
28. Superseding Indictment in United States v. Richard A. Causey, Jeffrey K. Skilling, and Kenneth L. Lay, Cr. No. H-04-25 (S-2), in the U.S. District Court, Southern District of Texas, Houston Division (filed July 7, 2004).
29. See Blakely, 2004 WL 1402697, at *9 (discussing defendant waiver of Apprendi rights).
30. See Blakely, 2004 WL 1402697, at *13 (O’Connor, J., dissenting) (emphasis added).
31. See Blakely, 2004 WL 1402697, at *29 (Breyer, J., dissenting).
32. See Blakely, 2004 WL 1402697, at *8.
33. Blakely, 2004 WL 1402697, at *22 (Breyer, J., dissenting).
34. See, e.g., United States v. Nguyen, 88 F.3d 812, 815-16 (9th Cir. 1996) (citing authority for severance or bifurcation of felon-in-possession charges from other offenses).
35. See Blakely, 2004 WL 1402697, at *23 (Breyer, J., dissenting) (describing (expensive) option of bifurcated guilt and sentencing jury trials).
36. See Blakely, 2004 WL 1402697, at *22 (Breyer, J., dissenting). see also United States v, Ameline, No. 02-30326 (9th Cir. Jul. 21, 2004) at 35 & n.20 (discussing procedure for sentencing juries, including special verdict forms.
37. 523 U.S. 224 (1998).
38. Apprendi v. New Jersey, 530 U.S. 466, 520-21 (2000) (Thomas, J., concurring).
39. See United States v. Burrell, 2004 WL 1490246, at *2 n.2 (W.D. Va. July 6, 2004).
40. 477 U.S. 79 (1986).
41. 536 U.S. at 582 (Breyer, J., concurring).
42. Spero v. United States, — F.3d —, 2004 WL 1516863 (11th Cir. July 8, 2004).
43. See United States v. Olano, 507 U.S. 725, 732 (1993); see also Ameline, at 23-25 (analyzing Blakely claim under plain error standard and finding error exists).
44. United States v. Deitzen, 2004 U.S. App. LEXIS 14169 (9th Cir. July 8, 2004) (unpublished).
45. Schriro v. Summerlin, — U.S. —, 2004 WL 1402732 (2004).
46. Summerlin, 2004 WL 1402732, at *2; Ring v. Arizona, 536 U.S. 584 (2002).
47. Summerlin, 2004 WL 1402732, at *3.
48. See In re Dean, — F.3d —, 2004 WL 1534788 (11th Cir. July 9, 2004).
49. Blakely, 2004 WL 1402697, at *16 (O’Connor, J., dissenting) (citations omitted).
50. Berra, supra, at118-19.


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