August 26, 2004

Campbell v. U.S., No. 02-2387 (1st Cir. August, 25, 2004)

In Campbell v. United States, slip op. No. 02-2387 (1st Cir. August 25, 2004) (not for publication), the Court, in denying a Certificate of Appealability to one who had his 2255 motion denied, stated, in part, as follows:
Finally, Campbell is not entitled to a COA to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). On appeal, this court held that there was no Apprendi violation because Campbell was sentenced below the statutory maximum of 240 months. See 21 U.S.C. § 841(b)(1)(C). In his § 2255 motion, Campbell argued that appellate counsel should have argued that Apprendi was violated because Campbell's base offense level under the sentencing guidelines was enhanced based on the drug quantity. He has now filed an addendum to his COA memorandum in which he asks that Blakely "be applied in evaluating the arguments which he has placed before the court." Notice of Supplemental Authority, p. 1.

This case does not require us to decide whether Blakely applies to the federal sentencing guidelines or whether it applies retroactively to cases on collateral review. Because Campbell stipulated at trial to a drug quantity that corresponded to the base offense level used to calculate his sentence, he cannot show that he was prejudiced by the failure to charge the specific drug quantity in his indictment. See United States v. Riggs, 347 F.3d 17, 20 (1st Cir. 2003), cert. denied, __ U.S.__, 124 S.Ct. 1095 (2004). Moreover, counsel's failure to anticipate Blakely would not constitute unreasonable performance under Strickland because "First Circuit jurisprudence on this point ha[d] been well established." Campbell, 268 F.3d at 7, n.7. Therefore, reasonable jurists could not find that he has made a substantial showing that the Blakely issue would have been clearly stronger than the issues raised by appellate counsel. [1]

Campbell's request to proceed IFP is granted, but his request for a COA is denied. The appeal is terminated.

[1] To the extent that petitioner is seeking to assert a new claim based on Blakely (rather than to provide supplemental support for his ineffective assistance claim), he would be required to present that claim first in the district court. Certification to file a second or successive petition could not be granted unless the Supreme Court had held that Blakely applied retroactively to cases on collateral review. 28 U.S.C. § 2255.
While this is an unpublished opinion, and denied appellant the relief he sought, it is notable that the Court never states Blakely does not apply to the federal sentencing guidelines. Instead, it talks about appellant having to await for the Supreme Court to hold that Blakely applied retroactively to cases on collateral review, and not even if Blakely is first held to apply to the federal sentencing guidelines.

August 24, 2004

Important Request from NACDL

I'm including here a request from Barry Scheck, on behalf of NACDL:

If and when the Supreme Court holds that Blakely v. Washington applies to the Federal Sentencing Guidelines (and maybe sooner), Congress may act quickly to pass "corrective" legislation. Some proposals under consideration would make the current sentencing system much worse -- for example, by prescribing a presumptive sentence at the statutory maximum for every offense, with the burden on the defendant to prove mitigating facts to reduce the sentence. To combat a hasty response and to provide a compelling case for sentencing fairness, the NACDL needs to highlight cases where the Sentencing Guidelines have caused disturbing inequity in federal sentencing.


  • acquitted and/or uncharged conduct unfairly and significantly increased the sentence;
  • extremely dubious evidence was relied upon to significantly increase the sentence;
  • relatively low-level participants in a conspiracy were sentenced far in excess of the leaders and organizers of the conspiracy;
  • the prosecutor unfairly wielded his or her power by manipulating charges, drug weights or loss amounts for the sole purpose of unfairly increasing the possible sentence; or
  • other abuses were caused either by the Guidelines or in the name of the Guidelines.

We are particularly interested in cases involving white-collar or non-violent offenders. You can respond to Kyle O'Dowd, NACDL Legislative Director, at

Please give as much information about these cases as possible, including the district, the docket number, case captions, defendants' names and the lawyers involved. Pleadings, transcripts or decisions (or citations thereto) that highlight the inequity of the case are particularly helpful.

Thank you,

Barry Scheck

Now, review some of your cases and see if you have any information that might be responsive to NACDL's request.

August 22, 2004

Wrong severability analysis, again --and-- why would you use an unconstitutional guideline as advisory?

I have been informed that Judge GarcĂ­a-Gregory has held that Blakely applies to the sentencing guidelines and has held them unconstitutional in their entirety, but will use them as, well, "advisory." This is all hearsay information, but Rachel promised a real run-down on each Judge's stance and I'm still waiting for her report to be posted.

Now, why would a Judge use the guidelines as "advisory" if he finds them unconstitutional? What exactly does a Judge mean when he says he will consider the guidelines as advisory? And I have a further question: Why is the severability analysis being done solely on the sentencing guidelines, rather than on the statute (the Sentencing Reform Act)? If we view the guidelines as agency regulations, the ususal thing that happens when the Courts examine a regulation and find it unconstitutional is that they simply discard it, period. The agency will come up with a new regulation that will comply, or none at all. And if the Courts do any severability analysis it is not within the regulations themselves, but in the statute, here the SRA. So why are all these courts not doing this? Am I missing something here?

August 19, 2004

US v. Kincade (9th Cir. August 18, 2004) - mandatory DNA profiling and the 4th Amendment

Recommended reading: U.S. v. Kincade, No. 02-50380 (9th Cir. August 18, 2004). Topic: whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes.

As the majority opinion states:

Pursuant to the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), Pub. L. No. 106-546, 114 Stat. 2726 (2000), individuals who have been convicted of certain federal crimes and who are incarcerated, or on parole, probation, or supervised release must provide federal authorities with “a tissue, fluid, or other bodily sample . . . on which a[n] . . . analysis of th[at sample’s] deoxyribonucleic acid (DNA) identification information” can be performed. 42 U.S.C. §§ 14135a(c)(1)-(2); id. at §§ 14135a(a)(1)-(2). Because the Federal Bureau of Investigation (“the Bureau”) considers DNA information derived from blood samples to be more reliable than that obtained from other sources (in part because blood is easier to test and to preserve than hair, saliva, or skin cells), Bureau guidelines require those in federal custody and subject to the DNA Act (“qualified federal offenders”) to submit to compulsory blood sampling. See Nancy Beatty Gregoire, Federal Probation Joins the World of DNA Collection, 66 Fed. Probation 30, 31 (2002). Failure “to cooperate in the collection of that sample [is] . . . a class A misdemeanor,” punishable by up to one year’s imprisonment and a fine of as much as $100,000. 42 U.S.C. § 14135a(a)(5); 18 U.S.C. §§ 3571 & 3581.

The Court's opinion is written by Judge O’Scannlain; there is a concurrence by Judge Gould; and very strong dissents by Judge Stephen Reinhardt, and Judge Alex Kozinski; as well as by Judge Hawkins. This are very interesting opinions, not just for your criminal cases, but for some awarness of the dangers of technological advances and reliance on the Government's good use of the same, or said in the dissenter's words, "the slippery slope."

First Circuit Watch: Court finds Blakely argument inapplicable, waived, and forfeited

In United States v. Carlos Lopez , No. 03-1767 (1st Cir. August 19, 2004), the Court indicated at n. 1:

Counsel for appellant submitted two letters pursuant to Fed. R. App. P. 28(j) in which he asserted that, under Blakely v. Washington, 124 S.Ct. 2531 (2004), this court should strike down the federal sentencing guidelines and remand this case. Blakely held that a sentence that was enhanced on the basis of factors found by the judge, rather than the jury, violated the defendant's constitutional right to trial by jury. The appellant in this case, however, received the minimum statutory sentence, and counsel has offered no explanation as to why Blakely would apply. The argument is thus waived. See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 28 (1st Cir. 2003) (issue deemed forfeited by failure to marshal pertinent facts or engage in reasoned analysis).

So, we still do not have "guidance" from the First Circuit, but neither do we have any dumb orders saying that the guidelines should be continued to be applied as if Blakely had never been decided. In other words, the First still believes that the blind ought not to lead the blind.

USSC Staff Members Think Court Will Uphold Guidelines ... (and they're pooling their money to buy the Brooklyn Bridge)

Oops! Apparently I don't know what I'm talking about when I say I cannot imagine the Supreme Court not applying Blakely to the federal sentencing guidelines. Check out this post at Sentencing Law and Policy, where it is reported that

Various staff members of the U.S. Sentencing Commission now believe that it is most likely the Supreme Court will uphold the guidelines. Nevertheless, they are planning for legislative options in the event that the guidelines are struck down. Part of that planning will be based on a comprehensive and empirically rigorous 15-Year Review of the current guideline system. The review, prepared by the staff and now being considered for possible adoption by the commissioners, tries to identify the strong and weak points of the guidelines in carrying out the purposes of the 1984 Sentencing Reform Act.
Does this mean that these various staff members believe that the Court will not apply Blakely at all to the federal sentencing guidelines? Or does it mean they believe the Court will apply it but that they think the Court will come down the side of severability? What is the basis for believing the Court would not extend Blakely to the guidelines? I suspect that this is all wishful thinking, for it is hard for me to conceive that the Blakely majority would now backtrack. There are no principled grounds to do so, only pragmatic ones, and Blakely was anything but pragmatic. You just can't explain it away.

August 18, 2004

Blakely and the Loss of Intellectual Honesty in Some Circuits

For all my differences with many of the views of Justice Scalia, in Blakely he took the bull by the horns and decided according to law, instead of figuring political or practical consequences. After all, the dissent by Justice O'Connor is really a pathetic cry for not rocking the boat, rather than a reasoned legal argument.

I can understand the desire of appellate judges to let the Supreme Court go first, but why then issue these rulings saying Blakely does not apply to the federal sentencing guideline rather than wait. In my view, quite frankly, these are orders and opinions lacking in intellectual honesty. Maybe I am being too harsh, but that is the way I see it. It is difficult for me to imagine that a Judge can really believe the Supreme Court will not extend Blakely to the federal sentencing guidelines. If the impact were not as big, I'm certain we would have been seeing a lot more intellectual honesty. In this sense, the district courts who have struggled with this issue, and who must impose sentences with defendant in front of them, are the ones who have shown by and large the most intellectual honesty.

As for the First Circuit, at least they have not come down with any sort of opinion on the matter, which is a lot better than what some appellate courts have done.

August 17, 2004

Today's Read: "To Sever or Not To Sever? Why Blakely Requires Action by Congress"

At Sentencing Law and Policy Professor Berman has posted a link here to an article by University of Chicago Professor Albert W. Alschuler entitled "To Sever or Not To Sever? Why Blakely Requires Action by Congress." It is interesting reading, and it proposes Congressional action on the guidelines to accommodate Blakely. It is critical of those who say "go slow" - i.e., Professor Berman and others - as well as of those who favor mandatory minimums. He says that regardless of how the Supreme Court resolves the issue of severability, it is hard to imagine that the Court would not apply Blakely to the federal sentencing guidelines. He also discusses the various solutions attempted by the Courts, particularly the district courts. I quote now from the Conclusion to the article:

Blakely has generated shock and awe among those lawyers, academics, and judges who think entirely in consequentialist terms (which is to say, nearly all of them). This decision was breathtakingly unpragmatic. Congress may well see Blakely as a dare (and an opportunity) to push voters' anti-crime hot-buttons, to engage in a urinating contest with the Supreme Court, and to make federal sentences even more monstrous than they already are. Blakely and the Constitution of the United States leave room for Congress to do dreadful things, and in the area of criminal justice, Congress often has.

A practical difference between jurists who call themselves pragmatists and jurists who don't, however, is that non-pragmatists are more ready to say, "Not my job" (or, if you prefer, to respect the limitations of their office). Although non-pragmatists are typically seen as the champions judicial restraint (and often see themselves that way), Blakely illustrates how a non-pragmatic stance may produce action when a pragmatist judge would tremble and dive for a hole. True restraint (that is, true respect for the limits of the judicial office) may consist of deciding legal questions as legal questions without giving extraordinary weight to the political consequences of one's decisions.

The answer to the question, "Does the Constitution entitle defendants to have the facts that make them eligible for increased sentences determined by juries beyond a reasonable doubt?," cannot be, "Yes, if wise leaders in Congress are likely to respond by approving guided discretionary sentencing or the submission of some sentencing issues to juries, and no if those yahoos are likely to enact new mandatory minimum sentences." Moreover, although legislation is entitled to a presumption of constitutionality, the answer to the constitutional question does not depend on whether Congress - in the year of George Orwell's prophesy - approved a difficult-to-dismantle regime of push-button sentences determined by bureaucrats and administered by prosecutors, probation officers, and judges rather than jurors. Law is not all politics.

Judge Gertner recently observed, "While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act . . . or of the Guidelines. . . . The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis." [1]

In Blakely v. Washington, the Supreme Court did its job. Congress should do its.

[1] Muffleman, 2004 U.S. Dist. LEXIS 14114 at *6 (D. Mass. 2004).

A urinating contest between Congress and the Supreme Court? There are only 9 Justices and only 5 in the Blakely majority. Wouldn't this be unfair? Well, perhaps not, if one thinks of that "lone employee of the State" accompanied by 4 more and how much havoc they can wreak if they wish to. According to Justice O'Connor, that lone employee of the State plus four of his colleagues were able to produce "a No. 10 earthquake," one that has never been measured in the Richter scale. So if I were Congress, I'd think twice before starting that contest. In any event, the rest of the article is a very interesting read.

I am surprised at one thing in this article, and it is the shallowness with which it treats the severability analysis. Despite the first part of the title, "To Sever or Not to Sever" I must conclude that the emphasis is more on the legislative solution the author proposes. And if the purpose is to have some influence in Congressional action or reaction to Blakely, the "urinating contest" bit is hardly something that will get it referred to in a public hearing.

Comments on US v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004)

In U.S. v. Leach, No. 03-CR-114-H (N.D. Ok. August 13, 2004), Chief Judge Holmes follows the same approach he followed in U.S. v. O'Daniel which we commented upon here, inasmuch as he granted defendant the opportunity to withdraw the pre-Blakely plea and, when defendant did not, took this to mean that it was a voluntary and intelligent plea, as well as a waiver of a jury as fact-finder, and then proceeded to sentence her using the guidelines - to some extent - but not in full, as he did used the beyond a reasonable doubt standard rather than the preponderance of the evidence.

While I applauded his decision to use the beyond a reasonable doubt standard, as well as the reasons he gave for doing so, I am beginning to think that Chief Judge Holmes has found a curious way of forcing defendants to play his game of applying the guidelines but using the beyond a reasonable doubt standard through what one commentator at Sentencing Law and Policy referred to as a "trick question" - i.e., the opportunity to withdraw the pre-Blakely plea, and then using their refusal to withdraw the plea as a knowing and voluntary waiver of the jury trial right to find the facts.

August 09, 2004

Order for rehearing en banc in U.S. v. Mooney

Order of August 6, 2004 in U.S. v. Michael Alan Mooney , No. 02-3388 (8th Cir. July 27, 2004) stating:
On the court’s own motion, rehearing en banc is granted in this case. The opinion and judgment of this court filed July 23, 2004, are vacated. The en banc argument will be held at a time and place to be announced. Petitions for rehearing are not necessary and the court will notify counsel if supplemental briefing is desired. The Mooney panel had upheld the conviction, but divided over whether Blakely applied to the federal sentencing guidelines.
The Mooney majority found the federal sentencing guidelines unconstitutional and non-severable, and the dissent had argued that this was something for the Supreme Court to decide in the first instance. The case had been remanded for resentencing, with the guidelines to be used as advisory. But why is everyone assuming that the Order for rehearing en banc is primarily to address the Blakely issue? Isn't it just as likely that the en banc court is worried about the affirmance of the conviction to begin with?

No, I'm not taking bets on this one.

August 08, 2004

Comments on US v. O'Daniel, No. 02-CR-159-H (N.D. Okl., August 6, 2004)

In United States v. Danny Eugene O’Daniel, No. 02-CR-159-H (N.D. Oklahoma, August 6, 2004), a case involving a pre-Blakely guilty plea with a rather detailed plea agreement, the district court held:

  • Blakely applicable to the federal sentencing guidelines;
  • that defendant had waived his right to jury fact-finding (Note: the Court had earlier indicated intent to vacate guilty plea post-Blakely, the Government and defendant objected, with defendant insisting his plea was a voluntary and knowing one, so the court said it would then proceed to sentencing with judicial fact-finding);
  • that the Rules of Evidence would apply at sentencing as to any sentencing enhancements; and
  • that the Court would make findings on enhancements based on the beyond a reasonable doubt standard.

The Court explained that Blakely concerned both the right to jury trial and the beyond a reasonable doubt standard. It also indicated that Blakely made the right to jury fact finding interchangeable with judicial fact finding upon a proper waiver and consent, but that what was not interchangeable was the notion of jury fact-finding using a beyond a reasonable doubt standard with the rules of evidence applying and judicial fact-finding using a preponderance of the evidence standard and no rules of evidence applying.

The Court concludes that a clear purpose of Blakely is to ensure that each fact necessary to support a sentencing enhancement must be proved under the rules of evidence beyond a reasonable doubt to a jury or, upon a proper waiver and consent, to a judge. This will have its greatest impact in the area of relevant conduct. In this regard, the Court simply comments that, at least to some extent, relevant conduct has long caused discomfort to those involved in the criminal justice system, and Blakely directly speaks to that discomfort.

I must applaud this Judge with how he handled the issue of the burden of proof and the rules of evidence. What I have difficulty with, is the Court’s conclusion that the federal sentencing guidelines can be implemented in a manner consistent with the Sixth Amendment and Blakely by the Court. This can only be done if one determines that the Sentencing Reform Act’s provisions for the Court to be the fact-finder can be changed by judicial fiat, rather than by Congress. Setting aside for a moment the complex issues that will arise in charging juries with some of the more complex aspects of the sentencing guidelines, clearly intended to be explored by legal minds, I have no doubt that the statute and the guidelines can be re-written to comply with Blakely. But is this not a job for Congress and the Sentencing Commission, rather than the Courts? In any event, I urge you to read this opinion, as there is much more in it than what I have addressed here.

August 06, 2004

Second Circuit Issues Administrative and Procedural Measures for Dealing with Blakely Pending Decison in Booker/Fanfan

The U.S. Court of Appeals for the Second Circuit announced today a set of procedural and administrative measures that the court is adopting pending the Supreme Court’s decision in United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105 (to be argued October 4, 2004). These measures are as follows:

(1) The court generally will hold mandates in all criminal cases pending the Supreme Court’s decision in Booker/Fanfan. A panel may order that a mandate issue, however, in cases in which (a) the defendant was sentenced to no more than the applicable statutory minimum and (b) the facts that justified application of the statutory minimum were either admitted by the defendant or found by a jury beyond a reasonable doubt. Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part.

(2) All motions to file supplemental briefs in light of the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), will be denied without prejudice to renewal following the Supreme Court’s decision in Booker/Fanfan.

(3) Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its decisions that address defendants’ sentences until after the Supreme Court’s decision in Booker/Fanfan. In that regard, the parties will have until 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker/Fanfan.

August 05, 2004

Steps for Release Pending Appeal

To assist those who may have clients with cases on appeal presenting Blakely issues, and whose sentences may already be served if Blakely violations happened and had to be resentenced without any enhancements, I am reproducing -without identifying data- an exchange from a First Circuit CJA Group listserv:

Appellant is currently incarcerated for 15 months and has filed a Blakely Brief. If the court rules in favor of the Appellant, Appellant's sentence of incarceration should be 6 months. The government has not filed it's brief yet and the 6 month date is coming up. I have filed a Motion to expedite a decision or oral argument, but can I file a FRAP 9(b) Motion for Release Pending Appeal without going to the District Court first? Can CJA Appellate Counsel even represent Appellant in the District Court? Is there another (better) procedure for release pending appeal in this circumstance?

The following reply was thereafter posted:
Forwarded your question to Peter Goldberger in Ardmore, PA, an appellate guru. He suggested the following:
File in the district court, attaching a copy of appellate brief as an exhibit for the "substantial issues" prong, and the appellate docket for the "likely to result in a sentence shorter than the appellate process" prong. The rules require you to ask the USDJ first. Dist Ct retains this jurisdiction even while appeal is pending. If denied, then apply to the court of appeals.
Peter Goldberger, aside from being "an appellate guru," is deserving of much more recognition than that, as I can personally attest from the help he gave me late the other night in a recent Blakely matter I was dealing with. He always seems to have time for everyone, although he is a very busy person. I recommend you go to NACDL's site and order the video of the Blakely discussion in which the panelists included Peter, Hon. Nancy Gertner, Jeffrey L. Fisher (counsel for Blakely), and Michael R. Dreeben, Deputy Solicitor General who argued for the United States as amicus in Blakely.

August 02, 2004

Supreme Court grants cert. in Booker and Fanfan

The Court has granted the two petitions filed by the Acting Solicitor General in Booker and Fanfan, as well as an expedited briefing schedule, with consolidated Oral Argument set for October 4th. See today's Order List here. The questions presented for review were not reformulated, as respondents and amici NACDL/NAFD had suggested. And what about Pineiro (5th Cir.), Bijou (4th Cir.), the certified questions from the 2d Cir. in Penaranda, as well as the petition for rehearing filed by Washington State in Blakely v. Washington? The Court has not acted on any of these one way or another. I have a distinct feeling that -unless the Court were to hold that Blakely did not apply to the federal sentencing guidelines (unlikely, in my view, but nonetheless a possibilty)- there will be so many questions left unanswered and those will be left to percolate through the lower courts. And, for all of Blakely's talk of the Sixth Amendment, the Court will not have to answer the one question that affects the vast majority of criminal defendants: are so-called Blakely waivers valid in that they allow the Court to find facts using a preponderance standard?