Government Reply Briefs filed in Booker and Fanfan

In a speedy Reply to the briefs filed by defendants in Booker and Fanfan, as well as by amici NACDL/NAFD, Acting Solicitor General Paul D. Clement rejected the contention that these were not proper vehicles to address the questions presented in the government's cert. petitions, as well as the suggestion that the Court should revise the questions presented.

Moreover, to the idea that the briefing schedule should not be expedited, the reply brief states that "There is no issue in the federal courts today that more urgently requires this Court’s immediate attention." Reply Br. 2.

A copy of the Government's Reply Brief is available at USSGuide here or at Sentencing Law and Policy here. reply brief may be obtained here.

It is likely that next Monday the Court may reach a decision on whether it grants cert in these cases and, if so, will most likely set an expedited briefing schedule.

New layers of complexity added to post-Blakely cases pending before the Supreme Court

Over at SCOTUSBlog, Lyle Denniston explains here how the defense and amici filings in Booker, Fanfan, et al. have added a new layer of complexity to the Court's dealing with the Blakely issue as regards the federal sentencing guidelines. This is a very good read and I will not try to repeat it here.

Respondents and Amici File Before the Supreme Court in Booker, Fanfan, etc.

Today we had a number of filings by respondents regarding the Government's petition for writ of certiorari to the Seventh Circuit in Booker, and the petition for certiorari before judgment to the First Circuit in Fanfan, and their respective positions as to the Government's motion for expedited briefing and argument. We also had a great amici brief filed by the NACDL and NAFD (National Association of Federal Defenders). I found this latter most interesting in its request for the Court to reformulate the questions presented by the Solicitor General's petitions.

Here are links to the various briefs
Defendant's Response in Booker
Defendant's Brief in Opposition in Fanfan
NACDL and NAFD Amici Brief

In the Fanfan Brief in Opposition it is argued that Cert. Before Judgment should not issue because the Government has not met the high burden imposed by Supreme Court Rule 11, "[a] petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." "In support of certiorari in this case, the government argues only that the Blakely question is important. Pet. 6-9." Brief in Opp. 4.

The petition is also opposed on the following ground:

Moreover, this case has significant vehicle problems in its own right. To reach the Blakely question in this case, this Court would first need to address the knotty, and logically antecedent, question whether 21 U.S.C. §§ 841 and 846 violate the Sixth Amendment because they require judges to impose gradually higher sentences after finding facts about drug type and quantity by a preponderance of the evidence, or whether, on the other hand, those provisions are properly construed to define a set of greater and lesser offenses with different elements according to drug type and amount. This question was raised but, in reliance on the Guidelines's [sic] "relevant conduct" provisions, not answered in Edwards v. United States, 523 U.S. 511, 516 (1998) ("[W]e need not, and we do not, consider the merits of petitioners. statutory and constitutional claims."); see also Edwards Pet. Br., No. 96-8732, 1997 WL 793079, at *32 (U.S. Dec. 17, 1997); United States v. Vazquez, 271 F.3d 93, 107-115 (3d Cir. 2001) (en banc) (Becker, C.J., concurring).

Fanfan Brief in Opp. 6. The NACDL Amici Brief also argued that Fanfan was not a proper case for the case to take up the Blakely issues.

All respondents and amici objected to the expedited briefing schedule requested by the Solicitor General.

Blakely Applies to USSG and they are Severable - Judge Singal (D.Me.)

As we patiently await for the Supremes, the issue of whether the federal sentencing guidelines are severable continues to wreak havoc in the lower courts with judges heading in different directions. Judge George Z. Singal in U.S. v. Zompa, No. 04-46 (D.Me. July 26, 2004) just joined Judge Hornby's Fanfan reasoning holding the guidelines severable, as Judge Gertner (D.Mass.) held them not severable and unconstitutional in their entirety. See previous post. Of course, the severability issue depends on whether Blakely applies to the guidelines to begin with, another matter which has caused splits and is also before the Supreme Court.

In the meantime, Washington State has filed before the Supreme Court a petition for rehearing of Blakely itself, see petition here at Blakely Blog, arguing that the majority in Apprendi was wrong as to the historical underpinnings for the decision (and these were simply adopted without questioning in Blakely). I want to see Justice Scalia's response to this.

Guidelines Unconstitutional in All Cases - Judge Gertner

In a well reasoned opinion in U.S. v. Mueffleman, et al. (D.Mass., July 26, 2004), Judge Gertner has held "that Blakely unquestionably applies to the Federal Sentencing Guidelines; and that the Guidelines are rendered unconstitutional in their entirety by that application." (Emphasis added).

The opinion also rejects that part of the Government's argument that wishes to maintain the guidelines intact in cases with no Blakely issues and completely inoperable in those with Blakely issues.

At the same time, it is worth noting that the Government advances a selective severability argument. They claim that the Guidelines are only unconstitutional with respect to cases involving sentencing enhancements. The system can be unseverable with respect to the enhancements. In those cases, the Government argues that the Guidelines are a seamless web, wholly unconstitutional, and the Court should sentence under the previous indeterminate regime. In contrast, in cases in which there are no enhancements, the Government argues the Guidelines apply. The argument makes no sense.

At pp. 33-35 Judge Gertner goes into detail as to how she will proceed henceforth in sentencing defendants. She reverts to pre-1984 sentencing mode, with a few exceptions, including that she will take into consideration the fact that there is no longer a parole board and that defendants will have to serve almost all of the sentence she imposes; she will use the guidelines as guidelines; and

. . . will exercise my discretion to continue to apply procedural protections to these hearings -- sworn testimony, cross-examination, the application of the evidentiary rules, and clear and convincing proof. It would be troubling -- to say the least -- if judges announced that they were sentencing under an indeterminate regime, but in fact applied Guideline sentences now wholly without the procedural protections that Apprendi and Blakely were beginning to address.

Judge Gertner ends her opinion in a wishful thinking note:

Whatever the dislocation caused by Blakely, it has, or should have, at least one salutary impact. Perhaps it will start a national conversation about sentencing again, this time focused on the fairness of the process, as well as on what punishments
actually work in promoting public safety.

May Judge Gertner's hopes be fulfilled! This is a must read opinion from a very thoughtful Judge.

Administrative Office of the U.S. Courts and Direct Deposit of CJA Payments

It is my understanding that the CJA Payment system at the Administrative Office of the United States Courts has built-in capability for payments via direct deposit to CJA panel attorneys. In other words, all the AO needs is the will to make it work, and the information from counsel.

This would matter little if it were not for the fact that for over two years now it has taken each and every check made out to me at least 10 days (from the date of postmark) to reach me at the General U.S. Post Office in San Juan, Puerto Rico. I wish my bills would come in that slow!

If anyone from the AO is reading -and I hope you are- please bring this to the attention of those responsible at the AO and tell them that they should take advantage of the coming period of non-payments (yeah, I know, insufficient funds, again) to get the direct deposit part of the system working by the start of the next fiscal year. You can then even brag about saving trees!

Welcome!

To all PRACDL members and all who are interested in the criminal law, we hope you visit often for good insights from a group of criminal defense lawyers here in San Juan, Puerto Rico.

There will be a number of PRACDL members who have been invited to post their views, questions, and anything they feel may be of interest to us all. Their names will be announced upon acceptance.

For the rest of our visitors, we strongly encourage you to post any comments you may have and make this as interesting as possible.

Tom Lincoln
"Administrator"