The decision (or at least the issue) will certainly have to be reviewed by the U.S. Supreme Court, and as Judge Easterbrook stated, soon.
Within one business day of this decision being issued, a conflict between the circuits was created when the Fifth Circuit held that Blakely v. Washington did not affect the federal sentencing guidelines. U.S. v. Pineiro, 2004 WL 1543170 (5th Cir., July 12, 2004).
The same day, the Second Circuit simply certified the issue directly to the U.S. Supreme Court. U.S. v. Penaranda, 2004 WL 1551368 (2d. Cir., July 12, 2004).
In the meantime, however, attorneys and judges have to cope with the decision in the case at bar, a strange prospect for anyone who has not been practicing for more than 20 years, and has never known federal sentencing except pursuant to the guidelines.
Until this issue is finally resolved, sentencing courts will have to issue alternate sentences one based on the guidelines, sans enhancements, and the other using pre-guideline standards.
For guidance in performing the latter task, a good place to look is the first case in the wake of Blakely to hold the federal guidelines unconstitutional, U.S. v. Croxford, 2004 WL 1521560 (D.Utah, July 7, 2004).
In Croxford, the court held the guidelines unconstitutional in their entirety, rejecting the argument that the downward departures in the guidelines could be utilized, but that upward adjustments could not. The judge dismissed such an approach as being the equivalent of, whats mine is mine; whats yours is negotiable.
Accordingly, the court in Croxford adopted a pre-guidelines approach. Although the court found it paradoxical, the court found it could consider the same factors that would be impermissible to use to increase the sentence under Blakely.
The court also found that it could consider factors that the guidelines say are irrelevant the fact that the defendant was sexually abused as a child, in Croxfords case. The court also held it could use the sentencing guidelines, but only for nonbinding guidance, as well as the presentence report.
Finally, prosecutors should be aware of another aspect of the courts decision in Croxford. After the judge held the guidelines unconstitutional, the prosecutor requested that the defendant be sentenced to the statutory maximum, even though, under the plea agreement, he had agreed to recommend less.
The court held that this was a breach of the plea agreement, and treated the prosecutors recommendation as though he were making the recommendation it had agreed to.
Attorneys should also be aware that, on July 16, the Seventh Circuit issued another decision, addressing retroactive application of Blakely, Simpson v. U.S., No. 04-2700.
Simpson was found guilty of a cocaine distribution offense (powder), but the judge found that the cocaine was crack, and his sentence was greater as a result.
Simpson sought leave to file a successive collateral attack, but the Seventh Circuit dismissed the petition.
The court held, "Assuming that the Supreme Court announced a new constitutional rule in Blakely and that Simpson’s sentence violates that rule, the proposed claim is premature. The Supreme Court has not made the Blakely rule applicable to cases on collateral review as is required for authorization under sec. 2244(b)(2)(A) and § 2255 par. 8(2). See In re Dean, No. 04-13244, 2004 WL 1534788 (11th Cir. July 9, 2004). In Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000), and Hernandez v. United States, 226 F.3d 839 (7th Cir. 2000), this court developed a procedure for analyzing Apprendi claims proposed before the Supreme Court ruled on its retroactive application, namely: if the applicant could state a claim under Apprendi, the application was dismissed without prejudice; if she could not, the application was denied on the merits. In keeping with the approach developed in Talbott and Hernandez, we dismiss without prejudice Simpson’s application for leave to file a successive collateral attack. Should the Supreme Court announce that Blakely applies retroactively to cases on collateral review, Simpson can file a renewed application."
So prisoners who have exhausted their appellate rights will have to wait to take advantage of the decision in Blakely, pending a decision from the U.S. Supreme Court on whether the decision applies retroactively.
For resources on Blakely and its progeny, a number of Web sites exist to follow the day-by-day changes in the law. The best is at http://sentencing.typepad.com/sentencing_law_and_policy/
– David Ziemer
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David Ziemer can be reached by email.