Sentencing Law and Policy Web Log

Sentencing Law and Policy Web Log

September 1, 2004 through Present (September 15, 2004)

Wednesday, September 15, 2004

Big Blakely rulings from the states

Numbers, please

Reconsidering shame

Martha Stewart speaks (on Blakely)!!

Circuit contrasts: variations in appellate justice

Death is different

An amicus brief on waiver

Tuesday, September 14, 2004

No decision (yet) in mandatory minimum case

Calling all data junkies!!

Wouldn't most sentences be lower if the guidelines are non-severable?

Sorting through non-severability concerns

Limiting the impact of Blakely in California

Covering all the bases

Monday, September 13, 2004

Big doings tomorrow

Surplusage split

An amicus report from the ACTL

Looking for Blakely-ized clerks?

Blakely from the California to the Carolinas...

Sunday, September 12, 2004

The SG's artful dodging on severability

Head-counting in an alternative universe

The future of mandatory minimums?

Saturday, September 11, 2004

USSC's views about severability??

Ohio v. Scheer: a Rosetta Stone for sentencing reform?

Media analysis of Blakely

Friday, September 10, 2004

Be careful what you wish for

Different view of deep structural arguments

More big Blakely news from Colorado

Non-Blakely news from the First Circuit

Thursday, September 09, 2004

Gaining perspective

Wednesday, September 15, 2004

Big Blakely rulings from the states

Federal courts have been relatively quiet on the Blakely front this week (perhaps because, as suggested here, federal judges are so busy sorting through piles of clerkship applications). But the state courts have been keeping Blakely busy; at least three consequential ruling from courts in California, Minnesota and Tennessee appeared on-line today:

From California, the court in People v. George, 2004 WL 2051167 (Cal. App. 4 Dist. Sept. 15, 2004), held that Blakely precluded the imposition of an upper term sentence, and rejected the government's claims that the defendant has waived the issue and that any Blakely error was harmless. Here's some key language:

[B]ecause Blakely was decided after George's sentencing, George cannot be said to have knowingly and intelligently waived his right to a jury trial....

Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the court is required to impose the middle term unless it finds, by a preponderance of the evidence, that the circumstances in aggravation outweigh the circumstances in mitigation. The Attorney General argues that the imposition of an upper term sentence under the California determinate sentencing scheme is not the same as the imposition of a penalty beyond the standard range and thus does not implicate Blakely. The attempted distinction, however, is one without a difference. Although an upper term is a "statutory maximum" penalty in the sense that it is the highest sentence a court can impose for a particular crime, it is not necessarily the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," which is the relevant standard for purposes of applying Blakely....

Here, the trial court relied on five aggravating factors as the basis for its decision to impose the upper term, to wit, that (1) the crime was serious and involved threats of great bodily injury to the victims; (2) the crime involved planning, sophistication and professionalism; (3) the current offense was more serious than the offense underlying George's prior conviction, which was itself serious; (4) at the time George committed the current offenses, he was on felony probation; and (5) George's prior performance on probation was poor.... [W]e conclude that the trial court was constitutionally entitled to rely only on the fact that George was on probation at the time of the charged offense as a basis for imposing an upper term sentence. Because this fact arises out of the fact of a prior conviction and is so essentially analogous to the fact of a prior conviction, we conclude that constitutional considerations do not require that matter to be tried to a jury and found beyond a reasonable doubt.... Thus, in accordance with the analysis of Blakely, the trial court was not required to afford George the right to a jury trial before relying on his status as a probationer at the time of the current offense as an aggravating factor supporting the imposition of the upper term.

The Attorney General suggests that the propriety of this single factor as a basis for imposing an upper term sentence is sufficient to withstand George's constitutional challenge to the sentence.... [But] we cannot conclude that the elimination of four of the cited factors would not have made a difference in the court's sentencing decision here.... The matter is remanded for resentencing.

From Minnesota, the court in Minnesota v. Ingalls, 2004 WL 2050533 (Minn. App. Sept. 14, 2004), reserves the imposition of a "double-upward departure imposed by the district court." The court's ruling gets right to the point: "Like the sentencing departure in Blakely, the upward departure in this case is not based solely on facts reflected in a jury verdict or admitted by appellant; it is based on the district court's determination that aggravating factors were proved. Because the district court could not have considered whether basing appellant's sentence on these factors is permissible under Blakely, we remand for reconsideration of appellant's sentence in light of Blakely."

From Tennessee, the court in State v. Syler, 2004 WL 2039809 (Tenn. Crim. App. Sept. 13, 2004), explains that, though Blakely was "not raised by either party, we are constrained to address the Defendant's sentence in light of Blakely." And the impact is consequential:

The Blakely decision calls into question the validity of Tennessee's sentencing scheme, insofar as that scheme permits trial courts to increase a defendant's presumptive sentence based upon enhancement factors found by the trial judge.... The presumptive sentence for a standard offender convicted of a Class A felony is twenty years.... Here, the Defendant was sentenced to twenty-one years for each of his Class A felonies, one year above the presumptive sentence, based upon several enhancement and mitigating factors found by the trial court at the sentencing hearing....

The trial court enhanced the Defendant's sentences for the Class A felonies on the bases that the victim was "particularly vulnerable because of age or physical or mental disability," and the Defendant "abused a position of public or private trust." Tenn. Code Ann. § 40-35-114(5), (16). Neither of these enhancement factors is reflected in the jury's verdict, nor was either factor admitted by the Defendant. Pursuant to Blakely, the trial court's enhancement of the Defendant's sentences on these bases was therefore erroneous. See State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL 1607002, at *10 (Tenn.Crim.App., Knoxville, July 19, 2004) (holding that the rule in Blakely precludes application of enhancement factors (5) and (16) where they have not been submitted to the jury and have not been admitted by the defendant).

Pursuant to Blakely, the Defendant's sentences for his Class A felonies should not have been increased above the statutory presumptive sentence based upon statutory enhancement factors (5) and (16). Accordingly, we reduce the Defendant's sentences for his two Class A felonies from twenty-one years to twenty years.

September 15, 2004 at 10:06 PM

Numbers, please

The soon-to-be-released DPIC report about the administration of capital punishment and the number of innocent persons released from death row (background here) serves as another example of the potency of data and numbers. And, as I noted here, I believe views on key Blakely issues like severability and retroactivity may be greatly influenced by perceptions or suppositions about the number of cases possibly impacted by different sorts of rulings.

Though lots of sentencing numbers (both state and federal) might be important for examination and analysis, below I have indicated some data about which I am particularly curious in the run-up to Booker and Fanfan. I would be grateful if anyone with answers — or even ideas about how to find answers — would share what they know in the comments or in an e-mail to me.

1. Number of superceding federal indictments obtained since June 24, 2004. Note that this recent article is one of many I have seen suggesting that "Blakely-ized" indictments are common nationwide.

2. Number of federal sentences currently pending, i.e., "not final," (a) in toto, and (b) that have clear Blakely issues. Recall that Justice O'Connor reported in footnote 2 of her Blakely dissent that, on "March 31, 2004, there were 8,320 federal criminal appeals pending in which the defendant's sentence was at issue." But of course, this number represents just pending appeals, and the number of "not final" federal sentences must be larger. However, this number does not distinguish how many of cases have clear Blakely issues. That number might be much smaller.
3. Number of federal sentences "not final" as of June 27, 2000 when Apprendi decided (a) in toto, and (b) that have clear Blakely issues. Again recall that Justice O'Connor reported in footnote 2 of her Blakely dissent that between "June 27, 2000, when Apprendi was decided, and March 31, 2004, there have been 272,191 defendants sentenced in federal court." This number is only a rough (under)approximation of how many federal defendants might have claims if Blakely applies to the federal system and is made retroactive, but it is necessarily an overapproximation of how many past cases might have clear Blakely issues.

Of course, even if (when?) I get this sort of data, I will just want to repeat the data inquiry for each state sentencing system with Blakely issues. In the end, I cannot get over how thoughtful SCOTUS was to give us academics so many valuable research projects.

September 15, 2004 at 07:11 PM

Reconsidering shame

Last month, as discussed here, the Ninth Circuit in US v. Gementera, 2004 WL 1770101 (9th Cir. Aug. 9, 2004), upheld a sentence which, as a condition of supervised release, required convicted mail thief Gementera "to spend a day standing outside a post office wearing a signboard stating, 'I stole mail. This is my punishment.'" And, as detailed here, attorney Dan Markel has been a thoughtful critic of the Ninth Circuit's endorsement of shaming punishments since Gementera was handed down.

Dan has now completed a "working draft" of an "Amici Curiae Brief of Law Professors Submitted on Behalf of Appellant Shawn Gementera's Petition for Rehearing with Suggestion for Rehearing En Banc." Upon Dan's request, I am happy to post his draft brief (available to download below) to help Dan "collect signatories from criminal law/constitutional law professors who might be interested in the position." Dan has indicated he will have an updated version of the draft "by Sunday or so," and he encourages people interested in signing on (or in sharing comments) to email him directly at .

As indicated in comments here, my own views on shaming punishments are mixed and thus I am looking forward to giving this thoughtful brief a close read.
Download draft_gementera_amicus_brief.pdf

September 15, 2004 at 04:28 PM

Martha Stewart speaks (on Blakely)!!

Well, the headline above may be a bit misleading, but according to this NY Times/AP story, Martha Stewart has decided to surrender for prison as soon as possible in order to "put this nightmare behind me and get on with my life."

Blakely nuts like me of course recall that, as discussed here, Judge Cedarbaum had cited Blakely when granting Martha's application for a stay of sentence pending appeal. According to the NY Times/AP story, Martha's lawyer Walter Dellinger "said he still believed she had a chance to win a reversal of her conviction [but he] had asked a federal judge to withdraw the stay of her sentencing pending appeal."

I cannot help but speculate about what sort of Blakely-related advice Martha received. I would guess that, despite my musings here and here, Martha's lawyers sensibly concluded it was unlikely Martha would be able, because of Blakely, to do a lot better at any resentencing. Or, to be more precise, Martha's lawyers probably said that she likely could serve her 10 months and be free before the all the questions surrounding federal sentencing law would be resolved. Thus, the case stands as another example of a point Jason Hernandez made here last month: many defendants are as interested in certainty as leniency; like Martha, they just want to do their time and be done with it.

September 15, 2004 at 01:49 PM

Circuit contrasts: variations in appellate justice

As detailed in the three Senators' amicus brief filed in Booker and Fanfan (available here, commentary here), guideline reforms sought to "eliminate the intolerable disparities that had plagued the federal sentencing system." Yet today we have stunning disparities in the application of the federal guidelines in the wake of Blakely. Even putting aside all the noted variations from district to district and case to case, on the circuit level alone on just the most basic Blakely question we have a five-way circuit split:

1. Blakely has been deemed, at least for the time being, wholly inapplicable to the federal guidelines in the Second, Fifth, and Eleventh Circuits;
2. Blakely has been deemed, at least for the time being, inapplicable to the federal guidelines, but an order recommending the announcement of an alternative sentence is in place in the Fourth and Sixth Circuits;
3. Blakely has been deemed applicable to the federal guidelines, but severability questions have been left open, in the Seventh Circuit;
4. Blakely has been deemed applicable to the federal guidelines and the guidelines deemed severable in the Ninth Circuit; and
5. Blakely's impact on the federal guidelines is presently unresolved in the First, Third, Eighth, Tenth and DC Circuits.

And beyond these critical basics, there are and surely will continue to be variable rulings on "smaller" Blakely questions like plain error, waiver, restitution, indictment practices and so on and so on (see general background here and here and here)

Moreover, as all good lawyers know, circuit differences are reflected not only in doctrine, but also in attitude. Indeed, I sometimes perceive a certain tone in some Blakely rulings, and this tone often varies from circuit to circuit. Two cases handed down yesterday perhaps provide an example of what I mean.

In US v. Pree, 2004 WL 2039274 (7th Cir. Sept. 14, 2004), the Seveth Circuit seems to go to extraordinary lengths to preserve a Blakely claim for a defendant who did not even raise it:

As a final matter, we address an issue not raised by the parties — the constitutionality of the sentencing enhancement Ms. Pree received for obstruction of justice. Ms. Pree's case was briefed and argued prior to the Supreme Court's decision in Blakely [and this court's holding] in Booker that enhancements imposed by the court without a jury finding violate the Sixth Amendment.

Ms. Pree does not address to this court, nor can we find evidence in the record to indicate, that she addressed before the district court the constitutionality of her sentencing enhancement. In light of the sea change in federal sentencing law wrought by Blakely and Booker, we think it appropriate to take note of the possibility of an unconstitutional sentencing enhancement. Given the precedent in this circuit prior to Blakely, we think it would be unfair to characterize Ms. Pree as having waived a challenge to the validity of her sentencing enhancement.

The Supreme Court has granted certiorari in Booker and will consider, in the very near future, the application of Blakely to the United States Sentencing Guidelines and therefore the correctness of this court's decision in Booker. We therefore shall stay our mandate in this case until the Supreme Court has rendered its decision in Booker. Within fourteen days of the Supreme Court's decision in Booker, each party may submit a memorandum presenting its views on the application of that decision to this case.

Sentencing Law and Policy Web Log

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September 1, 2004 through Present (September 15, 2004)

Wednesday, September 15, 2004