• Trying to Read the Tea Leaves in Blakely
  • August 9, 2004
  • Law Firm: Pepper Hamilton LLP - Philadelphia Office
  • The nation's courts and criminal bar are in turmoil over the U.S. Supreme Court's landmark decision in Blakely v. Washington, 542 U.S. ____, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which has thrown into doubt the constitutionality of an untold number of sentences in criminal cases around the country, as well as nearly all of the nation's determinate sentencing schemes, including the U.S. Sentencing Guidelines. In Blakely, the Court held that Washington State's determinate sentencing scheme as applied to Mr. Blakely violated the 6th Amendment's guarantee of right to trial by jury. Here's a brief look at what's happened and what may happen next.

    Confusion Follows the Blakely Decision

    Since the June 24 decision in Blakely, the Seventh Circuit in United States v. Booker concluded that Blakely applies to the U.S. Sentencing Guidelines and remanded its case to the district court to determine the procedure to be followed for resentencing. In United States v. Ameline, the Ninth Circuit applied Blakely to the Sentencing Guidelines, but found that they were not facially unconstitutional, and remanded the sentence for jury findings on issues that increased the sentence. The Eighth Circuit in United States v. Mooney held the Guidelines unconstitutional, and found they were not severable. In United States v. Montgomery, a panel of the Sixth Circuit held that the Guidelines were constitutionally invalid, but could be used as an advisory source by a sentencing judge. The decision in Montgomery was vacated awaiting en banc review by the Sixth Circuit, but the appeal was withdrawn. In contrast, the Fifth Circuit in United States v. Piniero and the Fourth Circuit in United States v. Hammoud held that Blakely does not apply to the Sentencing Guidelines. Adding to the mix, on July 12, the Second Circuit in United States v. Penaranda and United States v. Rojas took the unusual step of certifying to the Supreme Court three questions regarding the application of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely to the federal sentencing process.

    In the meantime, scores of District Courts also have issued rulings, many of which are inconsistent. Some courts have found the Guidelines facially unconstitutional, and sentenced without reference to the Guidelines, while some have also employed the Guidelines as an advisory source. Some have issued alternative sentences -- imposing sentence under the Guidelines and, in the alternative, not under the Guidelines. Some courts have empanelled sentencing juries to make findings about disputed upward adjustments, including, in one New Jersey case, facts required to determine which Guideline Manual would apply. Some courts have held Blakely inapplicable to the Sentencing Guidelines, and found the issue to be currently determined by pre-Blakely governing Circuit court rulings. At least two courts have continued all sentencing proceedings while the unresolved implications of Blakely get further consideration. At least one court has held that pre-Blakely plea agreements do not waive Blakely objections, and that explicit Blakely waivers by defendants are ineffective with respect to finding relevant facts beyond a reasonable doubt.

    The Supreme Court Agrees to Expedited Review

    In the wake of the uncertainty and different approaches, on July 21, 2004, the Solicitor General sought expedited review from the Supreme Court of two federal sentencing guidelines cases, United States v. Fanfan, a district court case from the First Circuit, and United States v. Booker from the Seventh Circuit. On August 2, 2004, the Supreme Court granted writs of certiorari in these cases, and scheduled oral argument on October 4, 2004.

    Congress is getting into the act as well. On July 13, 2004, the Senate Judiciary Committee held hearings to consider possible legislative responses to Blakely. With the Senate now out of session, there is no chance that any of the proposals offered before the Committee will be acted upon until the fall.

    On July 21, a Concurrent Resolution was adopted by the Senate urging quick Supreme Court action on the Blakely issues. The Concurrent Resolution also expresses the intent of Congress that Blakely not apply to the Sentencing Guidelines since "the statutory maximum penalty is the maximum penalty provided by the statute defining the offense of conviction . . . ." The Concurrent Resolution also asserts that Congress intended the Guidelines "to be applied as a cohesive and integrated whole, and not in a piecemeal fashion . . . ." This provision of the Resolution seeks to address the issue of severability -- that is if Blakely applies to the Guidelines whether they can be used at all in sentencing if any part of the sentencing scheme violates the Sixth Amendment.

    What's Next for the Sentencing Guidelines?

    Although the Blakely decision specifically did not reach the application of its holding to the Sentencing Guidelines, there is good reason to believe that the Blakely 5-4 majority will find that Blakely applies to the Sentencing Guidelines.

    First, the majority in Blakely wrote a decision that appears to be deliberately broader than necessary to have reached the result as to Washington State's sentencing scheme. For example, in stating that the Court's commitment to Apprendi reflects "the need to give intelligible content to the fundamental constitutional right of jury trial" and that the "case is not about the constitutionality of determinate sentencing, but only about how it can be implemented in a way that respects the Sixth Amendment," the Court offered broader pronouncements about its view of Sixth Amendment jurisprudence that signals it is prepared to apply the implications of Apprendi and Ring v. Arizona, 536 U.S. 584 (2002), to the Sentencing Guidelines.

    Second, the Blakely decision was supported by Justices Scalia, Stevens, Souter, Thomas and Ginsburg, while the dissenters were Justices O'Connor, Breyer, Rehnquist and Kennedy. The split in Blakely was not along more traditional ideological lines that often separate the views of the Justices, but seemingly between those Justices willing to extend the theoretical reach of Apprendi and Ring whenever it may lead, dubbed by Acting Solicitor General Paul Clement as the "theorists," and those dissenting Justices who regard the extension of Apprendi and Ring as both unnecessary and pragmatically not worth the cost -- dubbed by Mr. Clement as the "pragmatists."

    There is no indication the theorist Justices will defect from Blakely due to the concerns of the pragmatist Justices that the cost of applying Blakely to the Sentencing Guidelines is not worth the constitutional values being promoted. Given the textual breadth of the Blakely decision, and the composition of the majority in Blakely, it seems unreasonable to believe that any of the majority Justices will be persuaded by what is likely to be the tortured threshold argument of the Government in Booker and Fanfan -- that Washington State's determinative sentencing scheme had features distinguishable from the Sentencing Guidelines. In short, in the words of Acting Solicitor General Clement, "The Court may well strike down the Guidelines."

    If Blakely is determined to apply to the Sentencing Guidelines, it is a finer issue as to whether the Guidelines would be held constitutionally invalid, or whether they would be found to be applicable provided there are appropriate jury determinations beyond a reasonable doubt of issues that would enhance the relevant "statutory maximum." In Blakely, the majority stopped short of holding that Washington State's determinative sentencing scheme was unconstitutional, and instead remanded the case for further proceedings not inconsistent with the opinion.

    The Blakely holding suggests that the severability issue may be resolved by not finding the Guidelines constitutionally invalid, but by a holding that permits their survival provided there are jury determinations of disputed issues that could increase the otherwise applicable maximum sentence. For the Government, such a holding would apparently be the worst case scenario, as the Department of Justice has already issued a directive that prosecutors are to argue that Blakely does not apply to the Guidelines, and if it does, that the Guidelines are not severable and that sentencing should be imposed in the discretion of the court within the maximum and minimum terms established by the statute for the offense of conviction.

    Among the many other important issues engendered by Blakely is whether the decision might apply retroactively to cases in various stages of the criminal process, and the extent to which plea agreements and the failure of defendants to specifically make and preserve Blakely objections constitute waivers of Blakely claims.

    Whatever the outcome in Booker and Fanfan, it remains to be seen how the federal government, as well as the states, will respond to Blakely's requirement that determinate sentencing schemes be implemented in ways that respect the 6th Amendment as interpreted in Apprendi and Blakely. It is possible that determinate sentencing regimes may be abandoned by many in favor of more indeterminate sentencing procedures that existed for most of our nation's history.