Bench & Bar of Minnesota

Blakely v. Washington: Off the Judicial Richter Scale

Minnesota is not known for its earthquakes, but a recent U.S. Supreme Court decision invalidating Washington state’s sentencing guidelines has cracked the foundations of sentencing guidelines nationwide and aftershocks are still being felt.

by Josh Jacobson

Justice Sandra Day O’Connor attended both Stanford University and Stanford Law School, and later was a deputy county attorney in San Mateo County, California. Having spent a number of years in northern California, Justice O’Connor can be presumed to have more than a passing familiarity with earthquakes. So when Justice O’Connor describes the Supreme Court’s June 24, 2004 decision in Blakely v. Washington,1 as a “number 10 earthquake,” one can assume that she knows of what she speaks.

Though not always analogizing to natural disasters, others have described Blakely in similar terms. According to various federal judges, Blakely “fundamentally changed the federal sentencing landscape,”2 “effected nothing less than a sea change,”3 and left in its wake “the most pressing legal question in federal criminal law at this moment.”4 The acting Solicitor General believes that Blakely has led to “disarray” and a “wave of instability” in the federal courts.5 According to one court “literally thousands” of federal defendants are relying on Blakely to challenge their presumptive sentences.6 All these aftershocks resulting from a single opinion? Believe it.

Blakely Itself

Blakely involved a 6th Amendment challenge to Washington state’s sentencing guidelines which, like the federal sentencing guidelines, permitted the sentencing court to enhance a sentence based on facts neither found by a jury nor admitted by the defendant. Relying primarily on its recent opinions in Apprendi v. New Jersey7 and Ring v. Arizona,8 the Supreme Court held Washington’s sentencing guidelines to be unconstitutional under the 6th Amendment.

A footnote in the Court’s opinion noted that the federal sentencing guidelines were not at issue in the case, and the majority “express[ed] no opinion” as to the continued viability of the federal guidelines.9 However, Justice O’Connor’s dissent noted that the majority’s opinion had “cast constitutional doubt”10 on the federal sentencing guidelines and sentencing guidelines enacted by a number of other states — including Minnesota.

The Aftermath: Other Circuits

Blakely’s impact was immediate. Just five days later, Utah District Judge Paul Cassell found the federal sentencing guidelines to be unconstitutional under Blakely.11 In the weeks that followed, the 7th and 9th circuits held that Blakely made the federal sentencing guidelines unconstitutional,12 while the 4th and 5th circuits rejected Blakely based challenges to the guidelines.13 An en banc 2nd Circuit decided not to decide, and instead certified three Blakely -related questions to the Supreme Court pursuant to rarely used 28 U.S.C. §1254(2).14, only to have a 2nd Circuit panel uphold the guidelines several weeks later “unless and until the Supreme Court rules otherwise.”15 Meanwhile, an en banc 6th Circuit issued a one paragraph summary order upholding the guidelines on August 13, 2004, promising that majority and dissenting opinions are forthcoming.16

As of press time, the 1st, 3rd, 10th, 11th and D.C. circuits have yet to reach the issue of Blakely’s impact on the sentencing guidelines, but a Westlaw search focusing on the district courts in those circuits shows that a split already has developed among the judges in the District of Utah.17

The Aftermath: Minnesota

The Minnesota Supreme Court has yet to issue any decision that mentions Blakely. The Minnesota Court of Appeals has acknowledged the existence of the Blakely decision, but has offered few clues as to how it believes Blakely might impact Minnesota’s sentencing guidelines. The appellate court instead has remanded sentencing-related issues to trial courts in a number of cases with instructions to consider Blakely’s impact.18

The only other current clue as to Blakely’s impact on Minnesota’s sentencing guidelines is provided by the Minnesota Sentencing Guidelines Commission, which presented its Short-Term Recommendations to Governor Pawlenty on August 6, 2004.19 The Commission concluded that while Minnesota’s “guideline system as a whole” survives post-Blakely, modifications relating to durational and dispositional departures will be necessary.20 The Commission has promised to submit long-term recommendations to the governor on September 30, 2004, including a recommendation regarding any necessary statutory changes and changes to the guidelines themselves.21

The Aftermath: 8th Circuit

On July 23, 2004, a divided 8th Circuit panel in United States v. Mooney,22 relying on Blakely, held that the federal sentencing guidelines were unconstitutional.

On August 5, 2004, another 8th Circuit panel followed Mooney on the basis that it represented “binding precedent” in the Circuit even though mandate had not issued.23 Moreover, Judge Montgomery appeared to treat Mooney as binding in her July 30, 2004 opinion in Morales v. United States.24 However, on August 2, 2004, Judge Bataillon of the District of Nebraska held that he was “not bound to follow Mooney” because mandate had not issued, meaning that the decision was “not yet final.”25 To complicate matters even further, on August 6, 2004, the 8th Circuit sua sponte vacated the panel opinion in Mooney and granted rehearing en banc.26

It is curious that an 8th Circuit panel considered itself bound by Mooney prior to mandate issuing, while a district court judge would consider himself free to ignore Mooney’s core holding. It is even more curious that the Pirani decision has neither been amended nor withdrawn, given the fact that the sentencing portion of the opinion relies on Mooney.

In summary, as of press time, Mooney is no longer controlling in the 8th Circuit, yet a decision based on Mooney remains good law. Confusing? You bet.

Supreme Court Reenters

Responding to a request from the acting Solicitor General, the United States Supreme Court has granted certiorari and an expedited hearing in two Blakely -related cases, scheduling two hours of argument on the first day of its upcoming term. Both United States v. Fanfan,27 and United States v. Booker,28 involve appeals by the United States from drug cases where a court found that Blakely rendered the federal sentencing guidelines unconstitutional. In Fanfan, the defendant was sentenced to 78 months rather than the maximum of 235 months that the district court suggested might have been authorized pre- Blakely.29 In Booker, Judge Posner reversed a 30-year sentence and remanded the case for resentencing, finding that a jury rather than the judge should have determined the quantity of drugs which formed the basis for an upward departure in the defendants’ sentence.

While it is possible that the Supreme Court will decide Fanfan and Booker before the end of the year, the grants of certiorari have done little to stem the current controversy over Blakely’s impact. Out of necessity, district courts continue to sentence defendants without waiting for the Supreme Court to resolve the issue.30 And as previously discussed, the Minnesota Sentencing Guidelines Commission intends to issue a report at the end of September rather than waiting for guidance from the Supreme Court.

Conclusion

The final word on Blakely’s impact on the federal sentencing guidelines will have to await the Supreme Court’s ruling in Fanfan and Booker. But should the Supreme Court determine that the federal sentencing guidelines violate the 6th Amendment, the aftershocks may make Blakely’s “number 10 earthquake” seem by comparison much more like a minor tremor.

NOTES
1. 124

S. Ct. 2531 (2004).

2. United States v. Leach, ___ F. Supp. 2d ___, ___ (E.D. Pa. 2004), 2004 WL 1610852.

3. United States v. Mueffleman, ___ F. Supp. 2d ___, ___ (D. Mass. 2004), 2004 WL 1672320.

4. United States v. Emmenegger, 2004 WL 1752599 at *1 (S.D.N.Y. 08/04/04).

5. Jeff Chorney, “O’Connor to Judges: Explain Yourselves”, The Recorder, 07/23/04 (available at http://www.law.com/jsp/article.jsp?id=1090180161284).

6. United States v. Mueffleman, supra n. 3.

7. 530 U.S. 466, 120 S. Ct. 2348 (2000).

8. 536 U.S. 584, 122 S. Ct. 2428 (2002).

9. Blakely, 124 S. Ct. at 2538 n.9.

10. Blakely, 124 S. Ct. at 2549.

11. United States v. Croxford, ___ F. Supp. 2d ___ (D. Utah 2004), 2004 WL 1551564.

12. United States v. Booker, 375 F.3d 508 (7th Cir.), cert. granted, ___ S. Ct. ___ (2004); United States v. Ameline, 376 F.3d 967 (9th Cir. 2004), 2004 WL 1713659.

13. United States v. Hammoud, 2004 WL 1730309 (4th Cir. 08/02/04); United States v. Pineiro, ___ F.3d ___ (5th Cir. 2004).

14. United States v. Penaranda, 375 F.3d 238 (2d Cir. 2004).

15. United States v. Mincey, ___ F.3d ___, ___ (2d Cir. 2004), 2004 WL 1794717.

16. The summary order is available at http://www.ussguide.com/members/BulletinBoard/Blakely/06CA/USvKoch.pdf

17. Compare United States v. Croxford, ___ F. Supp. 2d ___ (D. Utah. 2004) (Cassell, J.) and United States v. Montgomery, ___ F. Supp. 2d ___ (D. Utah 2004), 2004 WL 1551564 (Stewart, J.) (Blakely impacts federal sentencing guidelines) with United States v. Olivera-Hernandez, ___ F. Supp. 2d ___ (D. Utah 2004), 2004 WL 1714977 (guidelines remain valid until overturned by higher court).

18. See e.g. State v. Whitley, 682 N.W.2d 691, 696 (Minn. App. 2004) (remanding for sentencing “not inconsistent with” Blakely); State v. Washington, 2004 WL 1725753 at *4 (Minn. App. 08/03/04) (reversing upward departure under guidelines and remanding for resentencing by district court “after consideration of the effect of Blakely”); State v. Beaulieu, 2004 WL 1488443 at *5 (Minn. App. 07/06/04) (remanding on sentencing issue and noting that district court “should take [Blakely] into consideration”); See also Burch v. State, 2004 WL 1557822 at *3 (Minn. App. 07/13/04) (noting that Blakely may have implications for upward departures from the Minnesota Sentencing Guidelines”).

19. The report is available at http://www.msgc.state.mn.us/Data%20Reports/blakely_shortterm.pdf.

20. Id. at 5-7.

21. Id. at 14.

22. The opinion had been available at 2004 WL 1636960 (8th Cir. 07/23/04), but is no longer available on Westlaw.

23. United States v. Pirani, ___ F.3d ___, ___ (8th Cir. 2004).

24. 2004 WL 1701037 (D. Minn. 07/30/04).

25. United States v. Swan, ___ F. Supp. 2d ___, ___ (D. Neb. 2004), 2004 WL 1725703.

26. Order available at http://www.ca8.uscourts.gov/orders/04/08/023388_15.pdf.

27. United States v. Fanfan, ___ F. Supp. 2d ___ (D. Me.), cert. granted, ___ S. Ct. ___ (2004), 2004 WL 1723114.

28. United States v. Booker, 375 F.3d 508 (7th Cir.), cert. granted, ___ S. Ct. ___ (2004), 2004 WL 1713654.

29. United States v. Fanfan, ___ F. Supp. 2d at ___, 2004 WL 1723114.

30. United States v. Emmenegger, 2004 WL 1752599 at *1 (S.D.N.Y. 08/04/04) (district courts “do not enjoy the luxury to await guidance from the Supreme Court”).

JOSH JACOBSON is a commercial litigator and the principal in his own Minneapolis firm, practicing in the areas of civil rights and employment litigation.