July 30, 2004

Indiana Decisions - Overview of Blakely in the 7th Circuit and in Indiana State Courts, Part I

Part I. Overview of Blakely in the 7th Circuit Courts

Court of Appeals for the 7th Circuit. In U.S. v. Booker (7/9/04), as reported here in the Indiana Law Blog on July 9th, Judge Posner wrote that the federal sentencing 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. "

Judge Poser concluded:

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.
Booker was to first post-Blakely Court of Appeals decision to hold the guidelines unconstitutional. On July 21, 2004, the Solicitor General filed a Petition for Writ of Certiorari to the United States Supreme Court in this case. However, as Professor Douglas Berman wrote this morning in Sentencing Law & Policy:
With a Supreme Court grant of cert a near certainty, it is tempting to suggest (perhaps even hope) that the sentencing world can take a breather until the High Court decides what Blakely means for the federal guidelines. However, it could be two more months until the Supreme Court even hears argument on a Blakely federal sentencing case, and perhaps at least a few more months before the Supreme Court renders a decision. I doubt that the thousands of federal criminal cases now pending in district and circuit courts can be put completely on hold during this period.

Of course, those circuits which have already weighed in on Blakely have given their district courts interim guidance, although that guidance is sketchy at best everywhere except in the Fifth Circuit where court have been told to continue with business as usual.

Recall that Judge Poser wrote in Booker:
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.
The 7th Circuit has issued several sentencing-related opinions since its ruling in Booker. In Simpson v. USA (7/16/04) the panel dismissed "Simpson’s application without prejudice to renewing his request should the Supreme Court make the rule announced in Blakely applicable to cases on collateral review." In USA v. Keller (7/21/04), a downward departure case, neither Blakely nor Booker was mentioned. In USA v. Ward (7/24/04) (4th entry in post), the panel ruled:
Under Blakely as interpreted in Booker, a defendant has the right to have a jury decide factual issues that will increase the defendant’s sentence. As Booker holds, the Guidelines’s contrary assertion that a district judge may make such factual determinations based upon the preponderance of the evidence runs afoul of the Sixth Amendment. Thus, in light of the analysis set forth in Booker, we remand these cases to the district court for resentencing.

The District Courts in the 7th Circuit. So what has been going on in the federal district courts of Wisconsin, Illinois and Indiana, post-Blakely, and post-Booker? There have been few reported cases. Judge Sarah Evans Barker reportedly has issued two bench rulings citing Blakely (see this ILB entry). There may be other unreported bench rulings in the three states.

In U.S. v. Stafford (WD Wis. 7/19/04) Judge Crabb ruled:

Defendant alleges that he was sentenced under the Sentencing Guidelines and that the court enhanced his base offense level on various grounds that were not determined by a jury. Defendant is correct. He was the subject of "a longer sentence than that supported solely on the facts he admitted during his plea colloquy." Simpson v. United States, (7th Cir. July 16, 2004) [see above]. That means that if and when the Supreme Court determines both that Blakely applies to the federal sentencing guidelines and that it has retroactive application to cases on collateral review, he may apply to the Court of Appeals for the Seventh Circuit for leave to file a successive collateral attack. Id. Of course, such an attack would be limited solely to the constitutionality of applying the enhancements to his base offense level. * * * He has no viable claim unless the Supreme Court holds that Blakely has retroactive application.
In U.S. v. Traeger (ND Ill. 7/8/04), Judge Shadur wrote: "Blakely itself did not announce that it was applicable retroactively--and indeed the same-day decision in Schriro v. Summerlin, 2004 U.S. LEXIS 4574, 72 U.S.L.W. 4561 (U.S. June 24, 2004) teaches the strong unlikelihood that Blakely will hereafter be given retroactive effect."

An Illinois paper, the Belleville News-Democrat, reported yesterday:

EAST ST. LOUIS - U.S. District Chief Judge G. Patrick Murphy said Wednesday he won't use federal sentencing guidelines because they are unconstitutional. Murphy barred the guidelines during the trial of Greg "Baby Greg" Murray of Granite City. He is scheduled to go to trial next week on a federal charge of using a handgun during a drug trafficking crime in connection with a homicide.

Murphy's ruling followed decisions by the U.S. Supreme Court and the 7th Circuit Court of Appeals in Chicago that challenged the constitutionality of the sentencing guidelines.

In an indictment filed last week, federal prosecutors alleged Murray's conduct in the crimes could lead to "enhancements" -- punishable by extended prison sentence under the sentencing guidelines for Murray. But Murphy decided the enhancements must be decided by a jury to be in line with the 7th Circuit and Supreme Court rulings.

[Thanks to USSGuide.com for the two district court links. Check its Seventh Circuit page here.]

Posted by Marcia Oddi at July 30, 2004 09:01 AM