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July 22, 2004 - The Los Angeles Times (CA)

Ruling Causes Uncertainty in Sentencing

The Justice Department Says A Supreme Court Decision Has Muddled Guidelines. It Asks For A Review Of Two Cases

By Henry Weinstein, Times Staff Writer

Asserting that a Supreme Court decision last month had created "a wave of instability in the federal sentencing system," the Justice Department on Wednesday asked the high court to review as soon as possible two federal cases that call into question sentencing guidelines.

Justice Department lawyers asked the high court to hear the cases as early as September. The Supreme Court gave attorneys for the defendants in the two cases a week to file responses to the government's motions.

Simultaneously, the U.S. 9th Circuit Court of Appeals in San Francisco on Wednesday overturned the sentence of a Montana methamphetamine dealer, which had been enhanced by a federal trial judge. The 9th Circuit said it too was acting in response to the Supreme Court decision in Blakely vs. Washington state.

The high court held that Washington's system, which permits judges to make findings that increase a sentence beyond the specific counts the jury convicted on, violates the defendant's 6th Amendment rights.

In a related development Wednesday, the U.S. Senate passed a bipartisan resolution cosponsored by Sen. Patrick J. Leahy (D-Vt.) urging the Supreme Court to "resolve the current confusion" created by the Blakely decision handed down June 24.

The Senate resolution states that the ruling "has raised concern about the continued constitutionality of the Federal Sentencing Guidelines," which were adopted in 1984 with the goal of ensuring fairness and uniformity. The guidelines give judges the power to enhance sentences based on a variety of factors âo such as whether a defendant used a weapon in the crime or failed to show remorse.

Judges make those decisions based on a "preponderance of the evidence," the lowest legal standard of proof. In contrast, juries in criminal cases must make their decisions based on evidence that convinces them "beyond a reasonable doubt," the most stringent standard.

Writing for the Supreme Court majority in Blakely, Justice Antonin Scalia said the court was ruling only on the Washington state system and expressing no comment on the federal sentencing guidelines. But Justice Sandra Day O'Connor expressed fear that the ruling put federal sentencing guidelines in peril and put "tens of thousands" of sentences in jeopardy.

Federal judges throughout the country make hundreds of sentencing decisions a day. Since the Blakely ruling, numerous federal judges have taken the position that the logic of the Blakely ruling raises serious doubts about the constitutionality of the federal guidelines.

Last week, the U.S. 7th Circuit Court of Appeals in Chicago ruled that Freddie Booker had been denied his constitutional right to a trial by jury when a judge gave him a 30-year prison sentence in a case stemming from a cocaine deal in Wisconsin. The court said the trial judge had enhanced Booker's sentence based on his findings about the quantity of drugs involved and his conclusion that Booker had obstructed justice.

The Justice Department is seeking expedited review in Booker's case, as well as that of Ducan Fanfan, a Massachusetts man convicted in Maine of conspiracy to distribute cocaine. Fanfan was sentenced shortly after the Blakely decision was issued. The judge said he had been prepared to sentence the defendant to a term of as much as 16 years, based on information that emerged after the jury convicted him.

But the judge said that in light of Blakely, those facts could not be considered, so he imposed a six-year term. The Justice Department initially appealed that decision to the 1st Circuit Court of Appeals in Boston, but on Wednesday the department asked the Supreme Court to take up the case now rather than waiting for the 1st Circuit to act.

Last week, the U.S. 5th Circuit Court of Appeals in New Orleans ruled in the opposite direction. That court said that unless the Supreme Court threw out the federal guidelines, they were still valid.

Still another federal appeals court, the 2nd Circuit, based in New York, formally asked the high court to clarify what the effect of its Blakely ruling should be on federal sentencing guidelines.

Justice Department lawyers took note of those cross currents and others in papers filed at the Supreme Court on Wednesday.

Government attorneys said the Blakely ruling "has left the government, defendants and the courts without clear guidance on how to conduct the thousands of federal criminal sentencings that are scheduled each month. The sheer volume of federal sentencings has resulted in virtually unprecedented uncertainty," said the brief submitted by Paul D. Clement, the acting Solicitor General, who said 64,000 federal criminal defendants were sentenced under the guidelines yearly.

On Wednesday, the 9th Circuit, which has jurisdiction over federal appeals from nine Western states, including California, weighed in on the issue for the first time. The court ruled 2 to 1 that a 150-month sentence imposed on Alfred A. Ameline violated his 6th Amendment right to a jury trial because the sentence was enhanced by a judge, not a jury.

The 9th Circuit said that it was acting in response to the Blakely decision, which it said had "worked a sea change in the body of sentencing law."

"We would be remiss if we did not examine if and how Blakely applies to sentences imposed under the [federal] guidelines," wrote Judge Richard A. Paez, responding to the contentions of government attorneys that the court had no authority to act based on Blakely. Paez's majority opinion was joined by Judge Kim M. Wardlaw.

Ameline contested a federal pre-sentencing report that he could be held responsible for distributing 1,600 grams of methamphetamine. Ameline admitted distributing a much smaller amount. The trial judge accepted the findings in the report, using the less stringent "preponderance of the evidence" standard.

That constituted "plain error," the appeals court ruled. "Without any additional findings" beyond Ameline's admission, the 9th Circuit said, the maximum sentence the trial judge could have imposed would have been 16 months âo as opposed to the 150-month sentence given.

"It is clear after Blakely that increasing Ameline's punishment based on facts not admitted by him or determined by a jury beyond a reasonable doubt was clearly contrary to his 6th Amendment jury right," the 9th Circuit majority wrote.

Judge Ronald Gould dissented, saying that the Supreme Court ruling "does not conclusively require that we hold constitutionally invalid the application of the Federal Sentencing Guidelines to Ameline". While reasonable jurists may now disagree on the long-range impact of the reasoning in Blakely, in the short run we remain bound to apply the Guidelines unless and until the Supreme Court holds otherwise."

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