Blakely v. Washington

UPDATE: Today the Supreme Court handed down its decision in Booker and Fanfan (download as .pdf). The opinion is 124 pages long. In a nutshell, the guidelines are unconstitutional as written, but okay with the Supreme Court if judges don't have to follow them. So, 17 years after the guidelines began, they are truly guidelines.

This will likely affect people who have not yet been sentenced, because the judges doing the sentencing now have more discretion to decide what the sentence should be (either above or below what the guidelines recommend).

It may affect people who have been sentenced and have appeals pending. If their sentences get reversed, however, the judges sentencing them may well use their discretion to give them the same sentences.

Whether it will effect people who are within time to file 2255 motions is an open question. The only way we will know the answer to that is if those people start filing 2255s (or, better, hiring lawyers to file 2255s) and working their way through the courts.

Booker and Fanfan DID NOT make the rule in Blakely retroactive. So people who have already been through the 2255 process, or who are past time to file a 2255, can't file a 2255 based on Booker and Fanfan.

On June 24th the U.S. Supreme Court decided the case of Blakely v. Washington (download as .pdf). In Blakely, the Court held that a sentencing court may not increase a defendant’s sentence by finding a fact unless the jury found that fact to be true by proof beyond a reasonable doubt or the defendant admitted to that fact under oath when entering his plea of guilty. Blakely involved the Washington state sentencing guidelines. If (as seems likely) the same rule applies to the federal guidelines, "relevant conduct" is right out the window, along with enhancements for leadership roles, use of special skills, firearms, upward departures . . . just about any factor that previously served to increase a sentence, possibly including criminal history.

Blakely may change the entire face of the Federal criminal justice system. The sides are lining up for a titanic struggle over what Blakely means to the federal sentencing guidelines. The government has laid out its position in a Department of Justice internal memo, which I have obtained from my sources. (There are huge flaws in the memo's reasoning; I am eager for opportunities to expose those flaws in federal courts anywhere in the U.S.)

On July 9th the 7th Circuit (taking appeals from U.S. District Courts in Illinois, Indiana, and Wisconsin) weighed in with U.S. v. Booker, holding that Blakely applies to the federal sentencing guidelines.

In Pineiro the Fifth Circuit (covering Texas, Louisiana, and Mississippi) on July 12th held that Blakely does not apply to the federal sentencing guidelines.

The Sixth Circuit in Montgomery has held that Blakely applies to the federal sentencing guidelines.

In Mooney the Eight Circuit held the federal sentencing guidelines unconstitutional and directed the District Court to resentence, treating the guidelines as advisory.

In Ameline the Ninth Circuit held that Blakely applies to the federal sentencing guidelines.

This is not the end of the inquiry in any of these circuits, however, since the U.S. Supreme Court can reasonably be expected to answer, once and for all, the question of whether Blakely applies to the federal sentencing guidelines soon. In fact, the U.S. Supreme Court heard arguments today in Booker and Fanfan. Look for a ruling in these cases before the end of the year.

The Supreme Court has not made the Blakely rule retroactive. Unless it does, Blakely can't be raised in a subsequent 2255.

This can't be emphasized too much: If Blakely might help you, you must raise it in court now, or risk losing it.

I will be taking a limited number of cases (anywhere in the U.S.) in which I will seek to reduce defendants' punishment under Blakely. If punishment for a federal crime is in your past or your near future, I want to help you try to take advantage of Blakely, either in the district court, on direct appeal, or on post-conviction ("2255") writ.

If a district court finds that Blakely applies to the federal sentencing guidelines, there are several theories of how it could proceed. It could, as did a court in Utah and another in West Virginia, throw out the guidelines entirely and sentence the defendant within the statutory range for the offense (this is, in my opinion, unjustified, but the government would like to see this happen). It could follow the guidelines, only applying aggravating factors that have been pled and proven beyond a reasonable doubt to determine the guidelines range (the correct approach, in my opinion). Or it could impanel a jury to decide aggravating factors retroactively (a procedure not available under federal criminal procedure, and not compliant with Blakely, which requires that aggravating factors be pled in the indictment and proven).

If the second or third approach is chosen, questions remain: what about prior convictions? The Supreme Court has held in another case (Almendarez-Torres) that prior convictions used to enhance punishment do not have to be proven beyond a reasonable doubt.This decision is ripe to be overturned. Also, what about aggravating factors that the defendant has admitted under oath at the plea? Can they be used to enhance punishment even though they were not pled in the indictment?

Any of these questions may be the subject of a round in the Blakely fight. It is important that your lawyer make every conceivable argument even if he thinks the courts will probably reject it so that, if the law changes, you will be in a position to correct the judge's errors farther down the road.

As you can see, using Blakely to your maximum advantage will not be a simple matter. Whether you are awaiting trial, awaiting sentencing, or trying to fix an incorrect sentence on appeal or 2255, make sure you have a lawyer fighting for you who is intimately familiar with the Blakely arena.

If Blakely error has not yet been raised and the case is on appeal or within the time to file a 2255, it should be raised now to minimize the chances that a court will later say that it was waived. So, unless the time to file a 2255 is past, now is the time to take advantage of Blakely.

(If you have already filed a 2255 and it has been denied, rules applicable to subsequent 2255 motions govern. A second 2255 may be filed only if a panel of the court of appeals certifies that the motion contains newly discovered evidence or a new rule of constitutional law made retroactive by the Supreme Court).

Please write to me to discuss Blakely's possible effect on your case (don't call unless you have a case pending and cash in hand and are serious about hiring counsel). Please be prepared to tell me:

• Has the defendant been convicted?
• If the defendant was convicted, was it through a plea or trial?
• If trial, was there a plea agreement?
• Has the defendant been sentenced?
• When was the defendant sentenced?
• Did the defendant appeal his sentence (direct appeal)?
• When did the defendant exhaust his direct appeals?
• Has the defendant filed a 2255?

Also, please be ready to send me copies of the indictment, the plea agreement (if there was one) and the PSR.

If the defendant has a case pending and is serious about hiring counsel, please call me.

Otherwise, please send me a letter or email:

(The following is a description of federal sentencing before Blakely.)

Sentences for crimes in federal court are determined in large part by following the United States Sentencing Guidelines Manual. The Guidelines provided sentencing by the numbers, with little leeway for the sentencing judge.

Hypothetical Situation

The following is an example of how the guidelines might apply in a particular narcotics case:

Facts: Deryl, who lives in St. Louis, has never been in trouble with the law before. Using his own credit card, he buys airline tickets for his brother Conway to travel from St. Louis to Houston, where Conway rents a car, picks up 100 kilograms of cocaine, and pays $150,000 for the cocaine. Unbeknownst to Conway, the cocaine deal is a controlled delivery -- the person delivering the cocaine is a confidential informant for the DEA. Conway is arrested by the DEA.

The next day agents in St. Louis interview Deryl. Deryl (not having read Mark Bennett's Million-Dollar Legal Advice), talks to the agents and admits that he knew when he bought the tickets that the purpose of Conway's trip to Houston was to buy dope.

Deryl is indicted in Houston, arrested in the middle of the night at his home in St. Louis, and brought to Houston for trial. His indictment contains two counts: conspiracy to possess cocaine with intent to distribute, and aiding and abetting the possession of cocaine with intent to distribute. Each count carries a minimum of 10 years and a maximum of life in prison. 21 USC §841(b)(1)(A).

After exhausting all possible defenses but trial, Deryl pleads guilty to the indictment. The judge sets sentencing for a date two months later, and orders the creation of a presentence report by the U.S. Probation Office.

The base offense level is determined by section 2D1.1 of the Sentencing Guidelines Manual.100 kilograms of cocaine puts Deryl at level 36 to start.

Deryl's participation in the conspiracy was minimal, so his offense level is decreased by 4 levels per section 3B1.2 of the Guidelines.

Deryl accepted responsibility by pleading guilty and admitting his wrongdoing, so his offense level is decreased by another 3 points per section 3E1.1 of the Guidelines.

At this point, Deryl's offense level is 29. He has zero criminal history points, according to section 4A1.1 of the Guidelines. According to the sentencing table, his range of punishment is from 87 to 108 months. Because the statutory minimum is 10 years, though, he will be sentenced to 10 years in federal prison (unless a departure -- upward or downward -- applies).

Safety Valve

There is a statute called the "safety valve," 18 U.S.C. §3553(f), which eliminates the statutory minimum in some drug cases. A person qualifies for the safety valve if:

1. He does not have more than one criminal history point;
2. He did not use violence or threats of violence or possess a dangerous weapon or induce another participant to do so;
3. The offense did not result in death or serious bodily injury;
4. The defendant was not an organizer, leader, manager, or supervisor; and
5. Before sentencing, the defendant has "truthfully provided to the government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan."

(These five criteria are set forth fully in section 5C1.2 of the Sentencing Guidelines.)

Criteria 1-4 are satisfied in Deryl's case. If he "debriefs" with the government -- that is, if he truthfully provides all information and evidence he has concerning the offense, the 10-year statutory minimum doesn't apply. Further, according to section 2D1.1(b)(6) of the guidelines, a person who qualifies for the safety valve and has an offense level of at least 26 points from 2D1.1 gets a two-point reduction. So Deryl's offense level is 27; his criminal history category is still I. His range of punishment is 70-87 months.

70 months is a lot of time to do for buying an airline ticket. There is no parole in the federal system, so he will actually serve more than five years, even with "good time" credit.

Departures

The judge must follow the guidelines unless there is a reason for him to depart downward or upward -- unless, in the words of the statute, "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."

The Sentencing Commission has listed some of the grounds for departure are set forth at sections 5K1 through 5K2.21 of the Sentencing Guidelines Manual.

Voluntary Disclosure: Section 5K2.16 of the Guidelines allows a downward departure where a person has voluntarily disclosed and accepted responsibility for the offense. This section applies only if the offense was disclosed before the discovery of such offense, and if such offense was unlikely to have been discovered. It does not apply if you are motivated by your knowledge that discovery of the offense is imminent.

Cooperation: One of the most sought-after downward departures is a departure under 5K1.1 for substantial assistance to the authorities in the investigation or prosecution of another person. In order to receive this departure, the defendant must convince the prosecutor that he has provided substantial assistance. Whether to ask for this departure is in the sole discretion of the prosecutor. Nobody keeps accurate statistics, but the best estimate I've heard is that two-thirds of people who try to cooperate with the government do not get sentence reductions under 5K1.1. In Deryl's case, for instance, he has nothing to gain from cooperating because he doesn't know anything about the conspiracy (unless he is low enough to rat out his brother).

Cooperating with the government is like having sex with a gorilla -- you don't stop when you want to stop, you stop when the gorilla wants to stop. When you cooperate, you give up almost any chance of prevailing at trial. Before you start cooperating with the government, you should be very sure that you don't have any other viable options.

Conclusion

I've tried to illustrate how the guidelines work and hit some key points. If you have a question about how the guidelines will affect you, please call me or another federal criminal lawyer.

--

Mark.

This page is a work in progress. If you'd like to discuss sentencing in Federal criminal cases, please contact me.