At the time of this writing, the United States Supreme Court is considering the cases of United States v. Booker, 375 F.3d 508 (7th Cir. 2004) and the United States v. Fanfan, 2004 U.S. Dist. LEXIS 18593 (D.ME. 2004). The Court heard argument on both of these cases on October 4, 2004. The two cases essentially present the question of whether or not the Supreme Court’s 2004 opinion in Blakely v. Washington, 124 S.Ct. 2531 (2004) renders the Federal Sentencing Guidelines unconstitutional, in whole or in part. A Ruling is expected in the coming weeks.
In 2000, the Supreme Court held, in Apprendi v. New Jersey, that any fact, other than the fact of a prior conviction that exposes a Defendant to a penalty in excess of the statutory maximum must be pled and proved to the jury beyond a reasonable doubt. Many believed at the time that the Apprendi decision would lead to the ultimate demise of the Federal Sentencing Guidelines. Much to the chagrin of criminal defense lawyers and Defendants across the country, every Circuit Court in the country to have considered the issue rejected such challenges. There is hope, however, that the optimistic visionaries may well have been right. On June 24, 2004, in Blakely v. Washington, 124 S.Ct.2531 (2004), the Supreme Court struck down State of Washington Sentencing Guidelines as unconstitutional. Blakely pled guilty to second degree kidnaping involving domestic violence and use of a firearm, a Class B felony. He entered a plea admitting the elements of second degree kidnaping and the domestic violence and firearm allegations but no other relevant facts. The Washington Statute set forth graduated maximum terms for various classes of felonies; ten years is the maximum for a Class B felony. Other statutes, however, further limited the range of sentences a Judge may impose and in this case, the state sentencing format specified a “standard range” of 49-53 months. The Washington statutes further provided that a Judge may impose a sentence above this range if he/she finds substantial and compelling reasons justifying an exceptional sentence. The Washington scheme sets forth a non-exclusive list of aggravating factors. Any reason offered to justify an exceptional sentence can be considered, however, only if it takes into account factors other than those used in computing the standard range sentence. After hearing testimony and making findings of fact, the Court imposed an exceptional sentence of 90 months, 37 months beyond the standard maximum, on the ground that the Defendant acted with “deliberate cruelty” a statutorily enumerated ground for departure in domestic violence cases. Id. At 2535. Blakely preserved the issue by arguing that this sentence procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. In a five to four decision written by Justice Scalia, the Court held that the statutory maximum for Apprendi purposes is the maximum sentence a Judge may impose solely on the basis of the facts reflected on the jury verdict or admitted by the Defendant. In other words, 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. The Supreme Court concluded, consistent with the Sixth Amendment right to a trial by jury, Judges may not make the factual findings that increase a Defendant’s sentence beyond the maximum allowed by statute. Id. At 2536-7. Such facts must be either admitted to in a plea or found by a jury beyond a reasonable doubt. Id. While the Supreme Court claimed that the ruling applied only to the Washington State sentencing scheme, several of the dissenting Justices in the contentious five to four split argued that the opinion clearly cast doubt on the constitutionality of the Federal Sentencing Guidelines. Id.at 2549-50.
The Washington State and Federal Sentencing Guideline system differs in only two regards; first, the former was created by the state legislature, the later by a commission. Second, unlike Washington’s Sentencing System, the Federal system allows for not only conduct related to the offense to be considered at sentencing, but also conduct outside the offense. Naturally, prosecutors across the country have been arguing that the two schemes are so different as to render Blakely of no consequence in relation to the federal system. Judges have been responding to such contentions in every possible way. In the wake of the June decision, Federal Courts were suddenly left with conflicting opinions as to how to apply the holding of Blakely to the Federal Guidelines, if at all. If Blakely does apply, then to what extent might the federal guidelines be unconstitutional? What has resulted in the ensuing weeks and months is a maddening and creative hodge-podge of opinions, many of which conflict with others within the same circuit. Numerous Judges seem to have taken this opportunity to impart their personal attitudes about the guidelines and judicial discretion. Given the unclear and open ended conclusions drawn by the Supreme Court, one can hardly blame them. One approach which some Judges have taken is to declare the Guidelines unconstitutional in their entirety. While no Circuit Court has yet issued such a ruling, several courts have held that they will no longer recognize the guidelines as mandatory. The Southern District of New York has been particularly busy in issuing obstinate opinions on the impact of Blakely. In U.S. v. Einstman, 325 F.Supp.2d 373 (S.D.N.Y. 2004),the Defendant plead guilty to conspiracy to commit mail fraud and admitted to the amount of loss. He did not concede, however, to the Government’s recommendation of an upward enhancement for an abuse of trust violation. Judge McMahon disagreed with numerous arguments presented by the Government, including that the Washington and Federal systems were significantly different from one another. Id at 377-8. However, she concurred that the guidelines were not severable, thus “the unconstitutionality of the provisions concerning the judicial fact finding of sentencing enhancements necessarily means that the entire U.S.S.G. scheme falls.” Id. At 380. See also U.S. v. Marrero, 325 F.Supp.2d 453 (S.D.N.Y. 2004) (guidelines are not severable and must be invalid entirely).
While the Second Circuit directed its lower courts to assume Blakely does not apply to the guidelines for the time being, it is evident that some of those courts have not heeded those instructions. The same can be said for an Illinois District Court which acted contrary to the Seventh Circuit’s ruling in U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), that the guidelines are unconstitutional in some context and that the Court should not decide the issue of severability. Just two weeks later, District Judge McCuskey held that the guidelines were not severable and, thus, were unconstitutional as a whole. U.S. v. Carter, 2004 U.S. Dist. LEXIS 14433 (C.D. Ill. July 23, 2004).
Other Circuit Courts have not been definitive in any way, allowing District Judges to impart their own interpretations and find the guidelines unconstitutional without reservation. District Courts in both the Third and Eleventh Circuits have been left without guidance by higher courts and have produced rulings that run the gamut of possibilities, including one in each that claims the Guidelines are unseverable and violative of the Sixth Amendment as a whole. U.S. v. Harris, 325 F.Supp.2d 562, 564 (W.D. Pa. 2004); U.S. v. King, 328 F.Supp.2d 1276, 1285 (M.D. Fla. 2004).
Short of declaring the Guidelines unconstitutional per se, a number of courts have found that Blakely does apply to the Federal Sentencing Guidelines but only to the extent that more closely follows the Supreme Court’s approach in Blakely, i.e. that the Guidelines are unconstitutional only when Judicial fact finding enhances a sentence beyond that which the Defendant admitted to in a plea or which a jury found beyond a reasonable doubt. Thus, in cases where a Court applying the guidelines finds that there are no applicable upward adjustments under the guidelines beyond the admitted facts or the jury verdict on the elements of the offense, the guidelines are constitutional. The first such interpretation came within four days of Blakely in Judge Cassell’s opinion in U.S. v. Croxford, 324 F.Supp. 2d 1230 (D. Utah 2004). In this child pornography case, Judge Cassell held that Blakely undoubtedly rendered the Federal Sentencing Guidelines unconstitutional in cases such as this. Id. at 1232. The debate arose when Croxford admitted to two facts which would increase his sentence but denied two others which were alleged in the Pre-Sentence Report.
Judge Cassell felt that his options in resolving the case were the following: (1) convene a “sentencing jury”; (2) proceed with a Guidelines sentence without applying the two additional enhancements requested by the Government or (3) declare the Guidelines unconstitutional and sentence, at his discretion, somewhere between the statutory minimum and statutory maximum. Id. at 1242. He found the first option to be not legally authorized, nor practical. Id. At 1243. He also felt that to treat the guidelines as severable was not an option contemplated by the Sentencing Reform Act of 1984 which left him only with the last option. Id. However, Judge Cassell stopped short of characterizing the Guidelines as unconstitutional entirely, but simply as unconstitutional as applied in this case. Id. At 1255. Shortly thereafter, the Court amended his opinion to note among other things that “[w]here the Guidelines can be applied without additional factual findings by the Court beyond those found by a jury (or perhaps admitted to as part of a plea proceeding), the Guidelines will still apply. The Court in Blakely made it clear that determinate sentencing schemes are not per se unconstitutional.” Id. at 1242.
The Tenth Circuit has yet to reach a conclusion on which of the many interpretations of Blakely its district courts have issued it should adopt. Accordingly, Croxford has retained its reputation as the most influential decision to come out of the Circuit, and arguably out of any district court. The Seventh Circuit used its reasoning to add weight to its opinion in U.S. v. Booker, infra, and several other district courts have cited it in issuing similar rulings. U.S. v. Medas, 323 F.Supp.2d 436 (E.D.N.Y. 2004); U.S. v. Sweitzer, (M.D. Pa. July 19, 2004) and U.S. v. Grant, 329 F.Supp. 2d (M.D. Fla. 2004).
One of the two cases in which the Supreme Court is deliberating is a main case, also decided just four days after Blakely. In United States v. Fanfan, 2004 U.S. Dist. LEXIS 18593 (D.Me. July 28, 2004), the First Circuit found that Blakely applied to the Federal Guidelines. Id. at 9. The jury convicted the Defendant of conspiring to distribute cocaine and the Judge noted that the verdict was limited to a finding regarding cocaine powder. The sentencing recommendation urged the Judge to take into account that the case involved trafficking of crack cocaine also, for which the Guidelines would have called for a sentence within a range of 2-3 times that of the jury finding. Judge Hornby held that, under Blakely, he was disallowed from increasing the sentence in such a away, stating that the relevant “statutory maximum” is not the maximum sentence the Judge may impose after finding additional facts but the maximum he may impose without any additional findings. Id. at 3-4.
Shortly thereafter, the Seventh Circuit was the first Federal Circuit Court to hold that the Guidelines were unconstitutional as applied to a sentence that was enhanced on the basis of facts that were not determined by a jury. In United States v. Booker, 375 F.3d 508 (7th Cir. 2004), a Wisconsin jury found the defendant guilty of possessing with intent to distribute more than 50 grams of cocaine base. Id. at 509. The maximum sentence the district judge could have imposed without an upward departure would have been 262 months. During sentencing, however, the court found that the defendant had delivered an additional 566 grams of crack cocaine and had also obstructed justice, tacking on an additional 98 months to his sentence for a grand total of 360 months. Id. On appeal, the 7th Circuit didn’t strike down the guidelines in their entirety, noting that where there are no enhancements, there is no constitutional violation in applying the Guidelines. Id. At 515. As applied in Booker’s case, however, Circuit Judge Posner opined that a Sixth Amendment violation occurred when the sentencing judge imposed a punishment that the jury’s verdict alone did not permit. Id. at 510. Booker is also currently before this Supreme Court on a writ of certiorari.
The above Courts are not alone in finding the guidelines unconstitutional, at least to some extent. The Ninth Circuit made a similar finding in United States v. Ameline, 376 F.3d 967 (9th Cir. 2004), where the Court held that the sentencing judge’s finding by a preponderance of the evidence of 1,603 grams of methamphetamine, despite the defendant’s admission of only a detectable amount of the drug, violated his Sixth Amendment right to a jury trial. Id. At 979. Additionally, numerous district Courts have come to similar conclusions, calling the Federal Guidelines even more into question. United States v. Zompa, 326 F.Supp.2d 176 (D.Me. 2004); U.S. v. Agett, 327 F.Supp.2d 899 (E.D. Tenn. 2004); U.S. v. Swan, 327 F.Supp.2d 1068 (D.Neb.2004).
In contrast, the Fifth Circuit created the first conflict among the Circuits when it concluded in U.S. v. Pineiro, 377 F.3d 464 (5th Cir. 2004) that Blakely does not extend to the Federal Sentencing Guidelines at all. Id. at 465. The defendant in that case had been convicted of various drug crimes. On the main conspiracy count, the jury was given a special verdict form asking it to indicate the amounts (if any) of marijuana and cocaine that it found the defendant had conspired to distribute. The jury responded by finding him guilty of conspiring to distribute the lowest amounts listed. Despite this finding, the District Court followed the recommendations of the Presentence Investigation Report and sentenced Pineiro to 121 months. The Fifth Circuit acknowledged that Blakely threw the current understanding of the Guidelines into doubt, but declined to extend it to the Federal Sentencing Guidelines in the end. Id. The Court explained its ruling by stating:
“In the wake of Blakely, the constitutional fate of the federal guidelines depends on whether the guidelines effectively operate as statutes that define different offenses with different maximum sentences; expressed in different terms, the question is whether a guidelines sentencing range unenhanced by judicial findings sets a ‘maximum sentence’ for purposes of Apprendi [v. New Jersey, 530 U.S. 466 (2000)]. If that is how the Guidelines operate, then Pineiro’s sentence is unconstitutional because the verdict did not authorize the sentence; instead, the judge’s findings effectively determined the offense of which Pineiro was convicted. The competing vision of how the Guidelines operate – the position that the government urges – pictures the Guidelines as a tool for channeling the sentencing court’s historic discretion to choose a sentence within the broad range established by the crime’s statutory (i.e., United States Code) minimum and maximum . . .
“Given the nature of the Guidelines, we think the better view – and one that respects the prior decisions of both the Supreme Court and this court - is that the relevant offenses and maximum punishments are those defined and authorized by Congress in the United States Code. Judicial findings under the Guidelines that set sentences within the authorized range therefore do not offend the Constitution.”
A few other district courts have agreed that Blakely did not affect the federal Guidelines. U.S. v. Emmenegger, 329 F.Supp.2d 416 (S.D.N.Y. 2004); U.S. v. Olivera-Hernandez, 328 F.Supp.2d 1168 (D.Utah 2004). However, the response of most courts, particularly since the Supreme Court accepted cert. on Booker and Fanfan, has been to avoid speculation as to how far the Supreme Court intended for Blakely to reach. Many have continued to sentence Defendants under the Guidelines, but with reservation. The Second Circuit has definitely thrown up its hands and has opted to defer interpretations until the Supreme Court rules on the matter directly. In U.S. v. Penaranda, 375 F.3d. 238 (2nd Cir. 2004), the 13 active judges from the Second Circuit unanimously agreed to certify three questions to the Supreme Court relating to the issue of the validity of two sentences in light of Blakely. The questions essentially asked whether the case applied to the Federal Guidelines and if so, “whether the Sixth Amendment also prohibits a sentencing judge from finding facts, not reflected in the jury’s verdict or admitted by the defendant, that form the basis for determining the applicably adjusted offense level under the . . . Guidelines.” Id. at 244. The Second Circuit stressed to the Court the urgent nature of the matter, asking for an expedited hearing in order to minimize the disruption Blakely has caused in the criminal system. See also United States v. Cimino, 381 F.3d 124 (2nd Cir. 2004); United States v. Mincey, 380 F.2d 102 (2nd Cir. 2004).
In addition to the Second Circuit, Judges of the Ninth Circuit have also issued opinions deferring on a Blakely type ruling, preferring to let the Supreme Court clarify its position with the impending decisions in Booker and Fanfan. In United States v. Ameline, infra, the Ninth Circuit ruled that Blakely rendered the Guidelines unconstitutional in part. 376 F.3d at 980. The divided panel held that the provisions that authorized judicial fact finding by a preponderant standard, should be severed from the rest of the guidelines. Id. At 981. However, within two weeks, the Circuit declined the issue mandates in response to supplemental Blakely motions until the Circuit or the Supreme Court resolved whether or not the Federal Guidelines were affected by Blakely. United States v. Figueroa, 106 Fed.Appx. 595 (9th Cir. 2004); United States v. Lamere, 110 Fed.Appx. 3 (9th Cir. 2004). See also United States v. Castro, 108 Fed.Appx. 503 (9th Cir.2004).
While many judges have held that Blakely does not apply to the guidelines, they have done so with express caution and temporary remedies. For example, both the Fourth Circuit and District Courts in the Sixth and Tenth Circuits have opined that the guidelines have not been affected, but have also advised that alternate sentences pursuant to 18 U.S.C. §3553(a) which treat the guidelines as advisory only, should be announced in case the Supreme Court holds otherwise. United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004); United States v. Onunwor, No. 1:04-CR-211 (M.D. Ohio August 19, 2004); United States v. Paris, No. 03-40031-01-RDR (D. Kan. July 24, 2004). On the flip side, some courts which have found the guidelines affected to some extent have also announced two sentences in the event the guidelines are upheld. United States v. Leach, 325 F.Supp. 2d 557 (E.D. PA 2004); United States v. Grand, 329 F.Supp.2d 1305 (M.D. Fla. August 12, 2004).
A different solution has been proposed in a Pennsylvania Court where Judge Connor held in United States v. Johns, 336 F.Supp.2d 411 (M.D. Pa. September 15, 2004) that the constitutional rights addressed in Blakely are consistent with the United States Sentencing Guidelines. According to Judge Connor, Defendants do not give up these rights to a jury trial when sentencing begins. In order to achieve this takes nothing more than a conceptual bifurcation of sentencing procedure:
A determination of the sentencing maximum must precede and cabin a determination of the guideline sentence. Id. at 427.
As we sit and await the Supreme Court’s resolution of Booker and Fanfan, there are a number of ways that the Courts are proceeding and which practitioners need to be aware of. As to cases that have already been tried without the benefit of any special findings by the jury as to enhancements like the amount of dope involved in a case, managerial role, possession of a firearm, etc., courts are sentencing Defendants in the alternative in case the guidelines are struck down in whole or in part. Several Judges have put sentencings on hold awaiting the Supreme Court’s announcement in Booker and Fanfan. Others are sentencing the Defendants at base offense levels without regard to any enhancements not necessarily found by the jury or admitted in the Defendant’s plea colloquy and yet there are others who are sentencing consistent with the same practice they have followed with regard to the Federal Sentencing Guidelines since their inception.
With regard to cases which have not yet proceeded to trial or have not yet pled, there is also a number of differing ways that Courts are dealing with the potential problem. Some Courts are submitting to the jury for their findings “notice of enhancements” which the parties submit to the Court to make specific findings. Thus far, it has only been the Government who has submitted these proposed enhancements, however, a creative criminal defense lawyer may do well to submit to a jury mitigating findings such as minor or minimal role, etc. Several districts have implemented a bill of particulars type of plan requiring a jury to make findings on those particulars. Obviously, a finding beyond a reasonable doubt by a jury will satisfy Blakely regardless of whether what decision may be forthcoming in Booker and Fanfan. With regard to pleas, whatever is stipulated to in a plea will be the relevant conduct the Court uses to impose a sentence. The Plea Agreements throughout the country now are containing what are popularly now being called “Blakely waivers” which include an agreement to be sentenced on rank hearsay. The real impact on the federal system, at least for the time being, is either that there is more creative and lengthy sentencing hearings as attorneys attempt to mitigate sentences or bifurcated trials which have both guilt and penalty phase components.
Blakely also has the real potential of overruling Almendares-Torres v. United States, 523 U.S. 224 (1998) and require that a prior conviction must also be pled and proved to a jury. Other decisions might similarly be vulnerable to attack now; Harris v. United States, 536 U.S. 545 (2002) (concerning minimum mandatory sentences); United States v. Watts, 519 U.S. 148 (1997)(involving the use of acquitted conduct at sentencing) and Witte v. United States, 515 U.S. 389 (1995)(involving double jeopardy).
For now, lawyers are confronted with the above hodge-podge of decisions in the wake of Blakely. The Court’s impending decision in Booker and Fanfan will resolve, in fact, what is the aftermath of Blakely v. Washington.
