In the Courts

Supreme Court Holds That Washington's Sentencing Scheme Was Unconstitutional As Applied

In Blakely v. Washington, 2004 WL 1402697 (June 24, 2004), the Supreme Court held in a 5-4 decision that the sentence imposed on Blakely pursuant to Washington's sentencing statute violated the Sixth Amendment right to trial by jury, because Blakely's sentence was higher than the maximum authorized by Blakely's guilty plea to second degree kidnapping, standing by itself. Instead, the sentence was impermissibly increased by the judge's finding at sentencing that Blakely had committed the crime to which he had pleaded guilty with 'deliberate cruelty,' a finding that Blakely contested and which had not been found by the jury.

Washington's sentencing scheme provides that convictions for class B felonies (including second-degree kidnapping) may not be punished by sentences exceeding 10 years. Washington's Sentencing Reform Act also provides, however, that second-degree kidnapping with a firearm, a class B felony, should result in a sentence within a standard range of 49-53 months. The statute further states that a judge may impose a sentence above the standard range only if there are 'substantial and compelling reasons justifying an exception sentence,' which can include a number of illustrative aggravating factors including 'deliberate cruelty.' Because the sentencing court found that Blakely had acted with such cruelty, the court imposed a sentence of 90 months. The Washington Supreme Court denied discretionary review of Blakely's appeal of his sentence.

The Supreme Court reversed and remanded. First, because Washington law established 53 months as a firm upper limit on the sentence that a defendant can receive for second degree kidnapping with a firearm in the absence of additional judicial fact-finding, the Court reasoned that 53 months, not 10 years, is the applicable statutory maximum. The Supreme Court then directly applied the rule it articulate in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that: 'Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' The majority opinion explained that under the Sixth Amendment, 'the judge's authority to sentence derives wholly from the jury's verdict. Without that restriction ,the jury would not exercise the control that the Framers intended.'

Circuit Split Emerges

In the wake of the Supreme Court's ruling in Blakely, a circuit split has rapidly emerged on the question of whether application of various provisions of the United States Sentencing Guidelines may be unconstitutional. As of this writing, at least two circuits have held that particular provisions of the guidelines are unconstitutional as applied. United States v. Ameline, 2004 WL 1635808 (July 21, 2004) (holding sua sponte that the district court's finding of the amount of a controlled substance as the basis for an upward enhancement violated the Sixth Amendment in light of Blakely, but not finding that the Guidelines were facially invalid); United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004) (holding that the judge's finding of drug quantity violated the Sixth Amendment). In a 2-1 decision, the Booker panel also considered whether any court other than the Supreme Court could extend Blakely's holding to the Guidelines, in light of the Supreme Court's relatively recent decision in Edwards v. United States, 523 U.S. 511 (1998), which took as an assumption in a Guidelines case that the applicable 'maximum' sentence is the statutory maximum. Because the Supreme Court in Edwards had not specifically addressed the Sixth Amendment, the Seventh Circuit's majority opinion reasoned that applying Blakely to the Guidelines would not improperly overrule any holding in Edwards. See Booker, 2004 WL 1535858 *5.

The Sixth Circuit has taken a more sweeping approach to the issue, and held that in the wake of Blakely the Sentencing Guidelines are now advisory. See United States v. Montgomery, 2004 WL 1562904 (6th Cir. July 14, 2004). According to the Montgomery panel, 'the 'guidelines' will become simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for.' Id. at *2.

The Fifth Circuit, in contrast, has held that Blakely does not apply to the Guidelines. In United States v. Pineiro, 2004 WL 1543170 (5th Cir. July 12, 2004), a panel of the Fifth Circuit declined to extend Blakely to a situation in which the sentencing court had enhanced the defendant's sentence based on judge's own finding of drug quantity. The Pineiro opinion arguably failed to apply the conceptual test set forth in Blakely which focuses on whether the district court has the power to impose a particular sentence based on facts found by the jury.

Finally, in an en banc decision, the Second Circuit certified to the Supreme Court a number of questions about the applicability of Blakely to the sentencing of a defendant who had been convicted of one count of conspiracy to distribute in excess of a jury-found volume of cocaine and heroin. See United States v. Penaranda, 2004 WL 1551369 (2d Cir. July 12, 2004). In light of the questions about whether Blakely should apply to Guidelines established by an administrative body, and in light of questions about what sentencing regime courts should follow if application of a particular guideline is found to run afoul of Blakely, the Second Circuit was 'convinced that a prompt and authoritative answer to our inquiry is needed to avoid a major disruption in the administration of criminal justice in the federal courts ' '

On July 21, 2004, the United States filed Petitions for Certiorari and Motions to Expedite Consideration with the Supreme Court for United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004), and United States v. Fanfan, a case on appeal directly from the District Court of Maine. 2004 WL 1627262 (U.S. July 21, 2004). The Petitions are available on the Department of Justice's website. The Supreme Court has ordered that responses to the Petitions and Motions be filed by July 28, 2004.

To address the uncertainty in the interim, Deputy Attorney General James Comey sent a memo to federal prosecutors on July 2, 2004 outlining the Department of Justice's position that Blakely does not apply the Guidelines, and articulating a policy that federal prosecutors should urge federal courts to exercise their discretion to follow the sentencing ranges set by the Guidelines in the event that mandatory application of a particular guideline is found to be unconstitutional by a particular court.

Supreme Court Holds That Washington's Sentencing Scheme Was Unconstitutional As Applied

In Blakely v. Washington, 2004 WL 1402697 (June 24, 2004), the Supreme Court held in a 5-4 decision that the sentence imposed on Blakely pursuant to Washington's sentencing statute violated the Sixth Amendment right to trial by jury, because Blakely's sentence was higher than the maximum authorized by Blakely's guilty plea to second degree kidnapping, standing by itself. Instead, the sentence was impermissibly increased by the judge's finding at sentencing that Blakely had committed the crime to which he had pleaded guilty with 'deliberate cruelty,' a finding that Blakely contested and which had not been found by the jury.

Washington's sentencing scheme provides that convictions for class B felonies (including second-degree kidnapping) may not be punished by sentences exceeding 10 years. Washington's Sentencing Reform Act also provides, however, that second-degree kidnapping with a firearm, a class B felony, should result in a sentence within a standard range of 49-53 months. The statute further states that a judge may impose a sentence above the standard range only if there are 'substantial and compelling reasons justifying an exception sentence,' which can include a number of illustrative aggravating factors including 'deliberate cruelty.' Because the sentencing court found that Blakely had acted with such cruelty, the court imposed a sentence of 90 months. The Washington Supreme Court denied discretionary review of Blakely's appeal of his sentence.

The Supreme Court reversed and remanded. First, because Washington law established 53 months as a firm upper limit on the sentence that a defendant can receive for second degree kidnapping with a firearm in the absence of additional judicial fact-finding, the Court reasoned that 53 months, not 10 years, is the applicable statutory maximum. The Supreme Court then directly applied the rule it articulate in Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), that: 'Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' The majority opinion explained that under the Sixth Amendment, 'the judge's authority to sentence derives wholly from the jury's verdict. Without that restriction ,the jury would not exercise the control that the Framers intended.'

Circuit Split Emerges

In the wake of the Supreme Court's ruling in Blakely, a circuit split has rapidly emerged on the question of whether application of various provisions of the United States Sentencing Guidelines may be unconstitutional. As of this writing, at least two circuits have held that particular provisions of the guidelines are unconstitutional as applied. United States v. Ameline, 2004 WL 1635808 (July 21, 2004) (holding sua sponte that the district court's finding of the amount of a controlled substance as the basis for an upward enhancement violated the Sixth Amendment in light of Blakely, but not finding that the Guidelines were facially invalid); United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004) (holding that the judge's finding of drug quantity violated the Sixth Amendment). In a 2-1 decision, the Booker panel also considered whether any court other than the Supreme Court could extend Blakely 's holding to the Guidelines, in light of the Supreme Court's relatively recent decision in Edwards v. United States , 523 U.S. 511 (1998), which took as an assumption in a Guidelines case that the applicable 'maximum' sentence is the statutory maximum. Because the Supreme Court in Edwards had not specifically addressed the Sixth Amendment, the Seventh Circuit's majority opinion reasoned that applying Blakely to the Guidelines would not improperly overrule any holding in Edwards. See Booker, 2004 WL 1535858 *5.

The Sixth Circuit has taken a more sweeping approach to the issue, and held that in the wake of Blakely the Sentencing Guidelines are now advisory. See United States v. Montgomery, 2004 WL 1562904 (6th Cir. July 14, 2004). According to the Montgomery panel, 'the 'guidelines' will become simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for.' Id. at *2.

The Fifth Circuit, in contrast, has held that Blakely does not apply to the Guidelines. In United States v. Pineiro, 2004 WL 1543170 (5th Cir. July 12, 2004), a panel of the Fifth Circuit declined to extend Blakely to a situation in which the sentencing court had enhanced the defendant's sentence based on judge's own finding of drug quantity. The Pineiro opinion arguably failed to apply the conceptual test set forth in Blakely which focuses on whether the district court has the power to impose a particular sentence based on facts found by the jury.

Finally, in an en banc decision, the Second Circuit certified to the Supreme Court a number of questions about the applicability of Blakely to the sentencing of a defendant who had been convicted of one count of conspiracy to distribute in excess of a jury-found volume of cocaine and heroin. See United States v. Penaranda, 2004 WL 1551369 (2d Cir. July 12, 2004). In light of the questions about whether Blakely should apply to Guidelines established by an administrative body, and in light of questions about what sentencing regime courts should follow if application of a particular guideline is found to run afoul of Blakely, the Second Circuit was 'convinced that a prompt and authoritative answer to our inquiry is needed to avoid a major disruption in the administration of criminal justice in the federal courts ' '

On July 21, 2004, the United States filed Petitions for Certiorari and Motions to Expedite Consideration with the Supreme Court for United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004), and United States v. Fanfan, a case on appeal directly from the District Court of Maine. 2004 WL 1627262 (U.S. July 21, 2004). The Petitions are available on the Department of Justice's website. The Supreme Court has ordered that responses to the Petitions and Motions be filed by July 28, 2004.

To address the uncertainty in the interim, Deputy Attorney General James Comey sent a memo to federal prosecutors on July 2, 2004 outlining the Department of Justice's position that Blakely does not apply the Guidelines, and articulating a policy that federal prosecutors should urge federal courts to exercise their discretion to follow the sentencing ranges set by the Guidelines in the event that mandatory application of a particular guideline is found to be unconstitutional by a particular court.