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Justices appear poised to strike down sentencing guidelines

Kicking off a new term, the U.S. Supreme Court heard oral arguments earlier this month in consolidated cases that indicated that a majority could invalidate the federal sentencing guidelines. One of those cases, United States v. Booker, No. 04-104, comes from Wisconsin.

The rare two-hour afternoon session came only three months after the court invalidated the state of Washington’s sentencing guidelines. (Blakely v. Washington, 124 S.Ct. 2531.)

In Blakely, the Supreme Court held that any factors a judge considers in enhancing a criminal sentence under state guidelines must be proved to a jury beyond a reasonable doubt, and that the failure to do so violates the Sixth Amendment.

But in the intervening months, federal courts around the country reached varying results about the applicability of the decision to the federal sentencing guidelines, resulting in a split among the circuits and an expedited review of two cases for the first argument of the 2004-2005 term.

Although the oral arguments included discussion about the application of Blakely to the guidelines, the court’s primary focus was on the second question presented — what happens now?

While the government emphasized the complexity and complications of going forward if Blakely is applied to the federal guidelines, attorneys for the defendants downplayed the need for major change in the system while stressing their clients’ constitutional rights.

Douglas A. Berman, professor at Moritz College of Law at The Ohio State University in Columbus, who attended the oral argument, said the Blakely majority appears to be intact. Berman authors an extensive Blakely blog at http://sentencing.typepad.com.

Rosemary Scapicchio, a sole practitioner in Boston who represented one of the defendants before the Supreme Court, agreed.

"I really feel like we didn’t lose any of the five," she said.

Scapicchio argued that the solution proposed by the defendants — keeping the guidelines as advisory and providing defendants with their Sixth Amendment rights to a jury trial — is much closer to the legislative intent than the government’s suggestion of invalidating the federal sentencing guidelines and going back to a discretionary system.

The latter "can’t be what Congress intended," she opined.

Drug Possession

In the first case before the court, Booker, a jury found Freddie Booker guilty of possession with the intent to distribute at least 50 grams of cocaine base, but at sentencing the judge found that he possessed at least 658.5 grams of cocaine base and that he had perjured himself at trial. Under the guidelines, the judge sentenced the defendant to 30 years in prison.

Finding Blakely applicable but avoiding the issue of whether the guidelines were unconstitutional, the 7th Circuit reversed.

"[T]he guidelines, though only in cases such as the present one in which they limit defendants’ right to a jury and to the reasonable-doubt standard, and thus the right of [the defendant] to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely," the court said.

In the second case before the Supreme Court, United States v. Fanfan, No. 04-105, Ducan Fanfan was found guilty by a jury of conspiracy to possess with the intent to distribute at least 500 grams of cocaine.

At sentencing, a U.S. District Court judge found that the defendant had possessed 2,500 grams of cocaine and 281.6 grams of cocaine base, which elevated his sentencing range from 53 to 78 months to a range of 188 to 235 months.

However, in light of Blakely, the judge sentenced the defendant to 78 months, the highest sentence possible without taking into account any judicial findings.

1,200 Sentencings

Acting Solicitor General Paul D. Clement, arguing on behalf of the government, began his 56-minute exchange with a reminder of the volume of cases at issue — 1,200 criminal sentencings each week in federal court.

He stressed the complexity issue, arguing that while a six-count indictment requires a six-line verdict form, an extensive indictment with complicated charges could warrant a 20-page form.

He also noted the guidelines have survived 17 years of Supreme Court review.

Clement then pointed out that the guidelines struck down in Blakely were created by the state legislature, while the federal guidelines were promulgated by the U.S. Sentencing Commission, a "quasi-judicial" entity.

But Justice Antonin Scalia jumped in.

"How does that eliminate the jury trial problem?" he asked. "The precise role of the jury is to find the facts necessary to put you in jail."

When Clement tried to explain, Justice David Souter joined the fray.

"What is the difference in effect?" he asked. "The defendant in a courtroom suffers the same effect whether is a rule, a statute or a guideline."

Clement then focused on the practical implications of applying Blakely to the federal guidelines, noting the "complex issues" for prosecutors going forward.

After rejecting a hypothetical posed by Justice John Paul Stevens about gun enhancements, Clement described a telemarketing fraud example.

If a defendant had bilked a large number of people out
of just a few dollars each, he said, the government would need to call every victim to the stand during sentencing in order to get an enhancement for the total dollar amount and the number of victims.

But Stevens wasn’t persuaded. "You don’t think the jury could find [the numbers] after two or three witnesses?" he asked.

"Is it better if judges go around guessing?" Scalia added.

Justice Stephen G. Breyer appeared to help Clement’s cause by expressing concern that the vast amount of information contained in a pre-sentence report, usually not available until after trial, would come too late for prosecutors to include in indictments; that issues such as perjury during the trial could not be included in sentencing; that certain things are too complicated to be listed in the indictment; and finally, that some concepts are "too difficult to explain to a jury," such as "brandishing."

Clement readily agreed that those four issues presented a problem, but then Breyer proposed a simpler approach, reading the guidelines as saying "may" instead of "shall."

"What would be wrong with that approach?" he asked.

Clement answered "nothing."

But Breyer noted that if the guidelines were permissive and judges had discretion to sentence within a range, then the appellate process would cause the Supreme Court to essentially become the Sentencing Commission.

Breyer, a member of the commission from 1985 to 1989, joked, "I thought I’d escaped."

Justice Sandra Day O’Connor appeared to find Breyer’s concerns convincing.

Given that Congress’ main intent was to make federal sentencing more uniform, "this is so contrary to what Congress intended," she said. "There is no evidence they wanted the guidelines to be advisory."

Eight More Years

T. Christopher Kelly of Madison, Wis., began his argument in support of Freddie Booker by emphasizing constitutional rights.

Noting that his client’s sentence had been enhanced by eight additional years, Kelly argued the "final years of a federal sentence are as worthy of protection as the first years."

Justice Anthony Kennedy inquired why a more random sentencing system should take the place of the easier to review guidelines system.

"Because of Blakely," Kelly replied.

Justice Ruth Bader Ginsburg asked how Kelly would respond to the four problems suggested by Breyer.

Kelly responded that charges for in-trial misconduct could be presented separately, and that juries receive complicated instructions all the time.

He also noted that bifurcated trials — a sentencing hearing subsequent to a trial on guilt or innocence — are an option for more complicated or prejudicial enhancement factors.

Kelly then returned to the issue of the guidelines’ constitutionality, emphasizing the "injustice in the current system."

Prosecutors charge the easiest elements to prove, knowing they face a standard of "beyond a reasonable doubt," but save the more difficult elements for sentencing before a judge, where they only face a preponderance of the evidence standard, he charged.

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Applying Blakely to the federal guidelines would result in a "more meaningful negotiation" between prosecutors and defendants, Kelly said.

‘Windfall’ For Defendants?

Scapicchio, who represented Fanfan, opened with a forceful comparison to Blakely.

"There is no meaningful difference between the federal guidelines and the Washington statutory guidelines," she said.

Scapicchio said the district court judge "did the right thing" in sentencing her client because the prosecutor chose not to indict him on possession of a greater quantity of cocaine, then increased the amount after the jury was dismissed.

Ginsburg asked if given the difference in sentencing ranges, defendants would receive a "windfall" if the court invalidated the guidelines.

Scapicchio said no, because ever since Apprendi v. New Jersey was decided in 2000, the government was aware it had to put all elements in an indictment and prove them at trial. (530 U.S. 466.)

O’Connor again expressed concern that Congress’ intentions were not being followed.

"But the guidelines are not going to operate as Congress intended, because they never intended to pass something unconstitutional," Scapicchio replied.

O’Connor then suggested that the court could "leave it up to Congress to decide."

Scapicchio concluded by arguing that if the guidelines are unconstitutional, "the only thing changing is the fact-finder."

A decision from the court is expected later this term.

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