Despite (or perhaps because of) the fact that the case resulted in two separate lead opinions, and four dissents, the case leaves much uncertainty.
On the issue of retroactivity, the court states that courts should consider whether the issue was raised below, and whether it fails the "plain-error" test.
Despite addressing Blakely in a number of cases since it was issued, the Seventh Circuit has said little on this subject, the bulk of it being in a dissent by Judge Frank H. Easterbrook, in U.S. v. Messino, 382 F.3d 704 (7th Cir. 2004).
Addressing what was sufficient to preserve a Blakely issue for direct appeal, Easterbrook stated that a "few sentences flagging the point" is enough, Id., at 714-715.
This observation may have been made only in a dissent, but it is hard to conceive a principled quarrel with the conclusion, given that, prior to Blakely, Apprendi objections to the guidelines were considered dead on arrival.
As for what constitutes plain error, the cases most on point are U.S. v. Ford, 383 F.3d 567 (7th Cir.2004), and again, Easterbrook’s dissent in Messino.
In Ford, the defendant failed to object to the Guidelines in the district court, and the Seventh Circuit reviewed for plain error, finding none, because it found that the evidence establishing the amount of crack cocaine the enhancement at issue was overwhelming. Ford, 383 F.3d at 568.
In Messino, the majority vacated the sentences, but did not address the plain error issue, at all. Easterbrook wrote in dissent that an Apprendi error can never justify reversal under a plain-error standard because it does not affect the fairness, integrity, or public reputation of the judicial proceedings. Messino, at 715, citing U.S. v. Cotton, 535 U.S. 625, 631-634 (2002).
Easterbrook wrote, "challenges raised initially after the district court has imposed sentence therefore must fail even if the Supreme Court affirms in Booker, but, when Apprendi-based arguments have been properly preserved, relief is appropriate because a Booker error is not harmless." Id.
While Easterbrook’s dissent would seem to be correct as to what is sufficient to have preserved the issue before Blakely was decided, it seems equally incorrect on this point. The court in Ford inquired whether the evidence was overwhelming; it did not hold that an Apprendi error can never constitute plain error, as Easterbrook concluded.
Not explicitly clear is, at what point the appellate court will look for the alleged error trial or sentencing. Booker was found by the jury to have possessed, with intent to distribute, at least 50 grams of crack, based on 92.5 grams found in his duffel bag. The court found he possessed an additional 566 grams, and used that to calculate the sentence.
Since the 566 grams were not entered into evidence at trial, the jury could not have found that he possessed them, and inclusion of this evidence in calculating the evidence would be plain error.
However, the facts surrounding those 566 grams could be such that there was "overwhelming" evidence to support the trial court’s finding that he did in fact possess them, and their inclusion would not be plain error, and the failure to submit the issue to the jury harmless error. Both are reasonable arguments, and neither is dictated by Justice Stephen G. Breyer’s one-paragraph discussion of the issue.
A hybrid is even possible, with enhancements based on factors that could have been submitted to a jury, such as drug quantity and relevant conduct, deemed reversible error unless submitted to the jury, while enhancements based on factors that can only be considered at sentencing, such as whether the defendant obstructed justice by committing perjury at trial, deemed reversible only if wholly unsupported at the time of sentencing.
Another issue left unresolved by the case is the effect of Guideline miscalculations in the future, when objections are properly made by the defendant.
Suppose an appellate court find that a sentencing court erroneously found that a defendant played an aggravating role in the offense, and thus incorrectly calculated the Guideline range based on an enhancement pursuant to U.S.S.G. 3B1.1. Suppose, however, that the same court of appeals also found that the ultimate sentence imposed was "reasonable," however that term is ultimately interpreted in this context.
Must the sentence be vacated because the defendant was sentenced based on an improper calculation of the guidelines, or does a finding of fact that the ultimate sentence imposed was "reasonable" render the error not grounds for vacation of the sentence?
Suppose the sentencing court erroneously finds the defendant played an aggravating role, but then, decides to sentence the defendant below the guideline range to a sentence within the range that the defendant would have been in without the finding. Is there still an error, on the theory that, had the judge not made the erroneous finding on the 3B1.1 issue, he would have, or may have, imposed an even lower sentence?
At least one district court has already weighed in on this issue, U.S. District Court Judge Paul G. Cassell, in Utah, in the case of U.S. v. James Joseph Wilson, No. 2:03-CR-00882 PGC (Jan. 13, 2005). Cassell was the first judge in the country to hold the federal guidelines unconstitutional after Blakely was decided, U.S. v. Croxford, 324 F.Supp.2d 1230 (D.Utah 2004), and wasted no time weighing in on Booker, as well.
Cassell’s entire discussion is as follows:
"Obviously, the court cannot comply with Booker’s mandate to ‘consider’ the Guidelines sentence before imposing the final sentence unless the Guidelines sentence is available. Accordingly, the probation office is directed to continue preparing pre-sentence reports that contain Guidelines calculations, including calculations based on the ‘real offense’ involved with any offense of conviction. Prosecutors and defense attorneys are directed to continue to make objections to any deficiencies in the presentence report, just as they have always done. The court, as it did before Booker, will resolve any disputes at the sentencing hearing."
"Careful preparation of a pre-sentence report and district court resolution of disputed facts is important for additional reasons as well. Under Booker, both the defendant and the government are authorized to appeal a sentence imposed as a result of an ‘incorrect application of the sentencing guideline.’ [footnote to 18 U.S.C. 3742(a)(2) and (b)]. This may seem a bit odd in view of Booker’s determination that the Guidelines are only advisory. But the obligation of a trial judge is to faithfully prepare an appropriate trial court record, leaving it to the appellate court judges to sort out the ultimate implications of that record."
Thus, at least in Judge Cassell’s view, any error in calculating the sentencing range remains appealable, even if the ultimate sentence is outside the erroneous guideline range. However, that only means the appeal will be considered, rather than dismissed. Any prediction how the appellate courts will "sort out" this issue would be pure speculation.
– David Ziemer
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David Ziemer can be reached by email.