Blakely Blawg
Tuesday, July 13, 2004
Blakely Blawg Demise. I'm back from vacation, but as of today I will not be continuing the "Blakely Blawg" page. Prof. Douglas Berman is providing such excellent and comprehensive coverage at Sentencing Law & Policy and other resources are starting to pop up.

On the Criminal Appeal blog I'll continue to highlight 9th Circuit and California Blakely developments.
Saturday, July 03, 2004
Vacation time. I'm off to the airport this morning. I'll be back on Monday, July 12. No blogging on vacation, unless I drive the 5 miles to town and the library happens to be open.

In the meantime, get your Blakely news from Sentencing Law and Policy, NACDL and your local groups.
Thursday, July 01, 2004
NACDL: The NACDL has a Blakely resource page.
Third Circuit Requests Briefing. In a case that has already been argued, the Third Circuit has sua sponte requested briefing on whether Blakely requires resentencing if the court affirms the conviction. This post-argument sua sponte request in a case in which there was no Apprendi objection in the district court and no Apprendi argument in the Court of Appeals reflects on the magnitude of Blakely.
Guidelines Partially Unconstitutional. According to a partial sentencing transcript in U.S. v. Fanfan, Judge (June 28, 2004) District Judge D. Brock Hornby (D. Maine) held that Blakely applied to the federal sentencing guidelines. Rather than tossing the entire book out, however, Judge Hornby calculated the guideline range based on only the facts found by the jury, as reflected by the verdicts. This meant the quantity of cocaine was limited to 500 grams and there would be no leadership role enhancements. Instead of a range of 188-235 months, the range was 63-78 months. In sentencing the defendant at the high end of the range, the court relied on the defendant's leadership role.

In concluding that Blakely applied to the guidelines, Judge Hornby relied, not just on the reasoning of the majority, but the warnings of the dissenters and the Solicitor General that such reasoning would apply to the federal guidelines.

Update: Read the S.G.'s parade of horribles amicus brief here.
U.S.S.G. Unconstitional. On June 29, Judge Paul G. Cassell (C.D. Utah) held the guidelines unconstitutional in a guilty plea case. US v. Croxford, no. 2:02-CR-00302PGC (June 29, 2004). (Judge Cassell, by the way, clerked for Justice Scalia when he was on the Court of Appeals, and then for Justice Burger.)

He considered three remedies: (1) convene a jury; (2) use the guidelines apart from the defective upward departure provisions; (3) treat guidelines as entirely unconstitutional and pick a sentence between the min and the max. (see pp. 20-29.) He chose the 3d option. Interestingly, and perhaps ironically, in picking the sentence within the statutorily permissible range, the judge made factual findings (grave harm and absconding) by applying the preponderance standard. (see p. 29.) Once he jettisoned the guidelines, the maximum sentence that could be imposed without any fact-finding beyond the facts admitted by the plea was the statutory maximum of 20 years. He was, thus, using the facts regarding grave harm and absconding to determine the sentence within the range permitted by the plea, not to raise the statutory maximum. So no jury trial, no proof beyond a reasonable doubt, and, in fact, no "top" or "lid" to protect the defendant. The court did sentence the defendant to 148 months, slightly below the applicable guideline range of 151-188 months.

Commentary from Sentencing Law and Policy here.
Sorry for the quiet. Like everyone else I know, I've been working on a Blakely brief and other Blakely-related inquiries and efforts. More to come soon.
Wednesday, June 30, 2004
More Words from the Street Please! Send me links to Blakely published or unpublished orders or opinions, or news stories or blog posts on how Blakely is playing out in your jurisdiction.
"Blakely, Word on the Street," is the title of a post over at Crime & Federalism, describing the government's apparent approach in one jurisdiction:
"Here is some intel on how Blakely is working its way through one jurisdiction:
*The government is not concededing that Blakely applies. [Well, of course.]
*But they will charge new cases, and bring superceding indictments in old cases, as if it does. ...

Tuesday, June 29, 2004
Blakely Bakes Alaska: "Ruling leaves plea deals in limbo."
Blakely and California's Proposition 36. I think it applies, at least partly. (Note: This post is identical to one I just posted at Criminal Appeal.)

Under Proposition 36 (Cal. Penal Code § 1210.1(a)), the statutory maximum for "[A]ny person convicted of a nonviolent drug possession offense" is probation. If the court finds certain facts true, the court may deny probation and impose a state prison term:
(b) Subdivision (a) does not apply to either of the following:
(1) Any defendant who previously has been convicted of one or more serious or violent felonies in violation of subdivision (c) of Section 667.5 or Section 1192.7, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a nonviolent drug possession offense, or (B) a misdemeanor conviction involving physical injury or the threat of physical injury to another person.
(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.
(3) Any defendant who:
(A) While using a firearm, unlawfully possesses any amount of (i) a substance containing either cocaine base, cocaine, heroin, methamphetamine, or (ii) a liquid, nonliquid, plant substance, or hand-rolled cigarette, containing phencyclidine.
(B) While using a firearm, is unlawfully under the influence of cocaine base, cocaine, heroin, methamphetamine or phencyclidine.
(4) Any defendant who refuses drug treatment as a condition of probation.
(5) Any defendant who (A) has two separate convictions for nonviolent drug possession offenses, (B) has participated in two separate courses of drug treatment pursuant to subdivision (a), and (C) is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment. Notwithstanding any other provision of law, the trial court shall sentence such defendants to 30 days in jail."
§ 1210.1
Some of these facts which raise the statutory max are recidivist-based and may have Almendarez-Torres problems, but others don't and the Blakely/Apprendi analysis applies such that there there's is federal constitutional right to a jury trial.
Monday, June 28, 2004
The Sentencing Law and Policy Web log, brought to us by Prof. Douglas Berman, will be an indispensible resource in finding our way in Blakely land.
More on Blakely and Cal. DSL here (Registration and login required.) (From the Central California Appellate Program.)
Blakely and California DSL: preliminary thoughts (From the First District Appellate Project).
Sunday, June 27, 2004
Blakely and Retroactivity? There's an argument that the rule stated in Blakely is not new, the court was merely applying Apprendi. That means the rule applies to case that were not yet final on direct review when Apprendi was decided.

Justice O'Connor appears to agree. She posits that sentences imposed after Apprendi (not just those on direct appeal when Blakely was decided) are "in jeopardy":
Every sentence imposed under such guidelines in cases currently pending on direct appeal is in jeopardy. And, despite the fact that we hold in Schriro v. Summerlin, post, p. ___, 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. See Teague v. Lane, 489 U. S. 288, 301 (1989) (plurality opinion) ("[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final").
O'Connor, dissenting, slip op. at 11.


Blakely Applied to USSG Offense Characteristics?

Blakely Applied to United States Sentencing Guidelines Upward Departures?

Blakely Blawg is Born
This will be a place for news and cases relating to the blockbuster sentencing decision the U.S. Supreme Court decided last Thursday (June 24, 2004): Blakely v. Washington. Send me your news about Blakely related legislation, cases, and news, and I'll post it here for others to read.

I've already got enough to do, so don't expect too much analysis in the posts. Use the comments to get dialogues going. I'll start a few threads going right away.

I will continue blogging California and Ninth Circuit post-conviction matters at Criminal Appeal.

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