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Friday, July 09, 2004

Indiana Decisions - 7th Circuit issues Blakely decision

As reported just a few minutes ago by How Appealing, "Divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit holds that, under Blakely v. Washington, judicial application of the Sentencing Guidelines violates the defendant's right to trial by jury under the Sixth Amendment."

Here is the link to the decision and my usual "edited opinion", hitting the high points of this important ruling in our circuit.

United States v. Booker (WD Wis.)

Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
POSNER, Circuit Judge. * * * We have expedited our decision in an effort to provide some guidance to the district judges (and our own court’s staff), who are faced with an avalanche of motions for resentencing in the light of Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004), which has cast a long shadow over the federal sentencing guidelines. We cannot of course provide definitive guidance; only the Court and Congress can do that; our hope is that an early opinion will help speed the issue to a definitive resolution. * * *

It would seem to follow, therefore, as the four dissenting Justices in Blakely warned, * * * that Blakely dooms the guidelines insofar as they require that sentences be based on facts found by a judge. The majority in Blakely, faced with dissenting opinions that as much as said that the decision doomed the federal sentencing guidelines, might have said, no it doesn’t; it did not say that. * * *

As an original matter, then, we think that the guidelines, though only in cases such as the present one in which they limit defendants’ right to a jury and to the reasonable-doubt standard, and thus the right of defendant Booker to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely. We cannot be certain of this. But we cannot avoid the duty to decide an issue squarely presented to us. If our decision is wrong, may the Supreme Court speedily reverse it. * * *

We conclude that Booker has a right to have the jury determine the quantity of drugs he possessed and the facts underlying the determination that he obstructed justice. The judgment must therefore be reversed and the case remanded for resentencing. If the government does not object, the judge can simply sentence Booker to 262 months, since the choice of that sentence would not require any judicial factfinding. But if the government wants a higher sentence or unless, as explained below, the guidelines are not severable, then Booker, unless he strikes a deal with the government, will be entitled to a sentencing hearing at which a jury will have to find by proof beyond a reasonable doubt the facts on which a higher sentence would be premised. There is no novelty in a separate jury trial with regard to the sentence, just as there is no novelty in a bifurcated jury trial, in which the jury first determines liability and then, if and only if it finds liability, determines damages. Separate hearings before a jury on the issue of sentence is the norm in capital cases.

Of course this will not work if the facts that the government would seek to establish in the sentencing hearing are elements of a statutory offense, for they would then have to be alleged in the indictment, and to re-indict at this stage would present a double-jeopardy issue. * * *

To summarize: (1) The application of the guidelines in this case violated the Sixth Amendment as interpreted in Blakely; (2) in cases where there are no enhancements—that is, no factual findings by the judge increasing the sentence—there is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety; (3) we do not decide the severability of the guidelines, and so that is an issue for consideration on remand should it be made an issue by the parties; (4) if the guidelines are severable, the judge can use a sentencing jury; if not, he can choose any sentence between 10 years and life and in making the latter determination he is free to draw on the guidelines for recommendations as he sees fit; (5) as a matter of prudence, the judge should in any event select a nonguidelines alternative sentence. REVERSED AND REMANDED.

Easterbrook, Circuit Judge, dissenting. My colleagues hold that, after Blakely v. Washington, No. 02-1632 (U.S. June 24, 2004), judicial application of the Sentencing Guidelines violates the defendant’s right to trial by jury under the sixth amendment. I disagree with that holding on both procedural and substantive grounds. This is the wrong forum for such a conclusion; and whatever power we may possess should not be exercised to set at naught a central component of federal criminal practice. * * *

Apprendi and Blakely hold that the sixth amendment commits to juries all statutory sentencing thresholds. Perhaps the Court eventually will hold that some or all of the additional determinations that affect sentences under the federal Sentencing Guidelines also are the province of jurors. But Blakely does not take that step, nor does its intellectual framework support it—and Edwards holds that the current structure is valid provided that juries make all decisions that jack the maximum sentences. I would treat Blakely as holding that, when there are multiple statutory caps, the “statutory maximum” is the lowest one and the jury must determine whether statutory thresholds to increased ranges have been satisfied. To read more into Blakely is to attribute to that opinion something beyond its holding, and to overthrow the real holdings of other decisions.

Today’s decision will discombobulate the whole criminal-law docket. I trust that our superiors will have something to say about this. Soon.

Posted by Marcia Oddi on July 9, 2004 04:39 PM
Posted to Indiana Decisions