Blakely v. Washington - Some Early Thoughts on Its Application to Federal and Florida Sentences [For Breaking News on Blakely click here]
see an example of Mr. Kent making a Blakely objection at a federal
sentencing before the Supreme Court even decided the case click
[Sample Blakely Memo of Law in Support of Federal Habeas Petition under 28 U.S.C. 2255]
[Sample federal appeal brief raising Blakely issue]
June 24, 2004, the United States Supreme
Court issued its decision in Blakely
v. United States. This decision appears to hold that any guideline
factor that would increase a guideline sentence above the base guideline cannot
be determined by a judge at sentencing, but must be determined by the jury at
trial or stipulated to by the defendant in his plea agreement, if he pleas guilty. Unless the defendant
stipulates to the factor in his plea
agreement, or the jury makes a special fact finding at trial, the judge acting
increase the guidelines simply by making the
determination at sentencing that the factor applies.
The Blakely decision involved sentencing guidelines from Washington state, not the federal sentencing guidelines, but as the dissent in the case states, there is no reason why this same result will not apply to the federal sentencing guidelines and other states' sentencing guidelines, including the Florida sentencing guidelines.
At a minimum this would appear to mean, for example, in the case of a federal sentence, that drug quantities, loss amounts for fraud or money laundering, role enhancements, obstruction enhancements, all other enhancements other than criminal history enhancements, cannot be determined by the judge at sentencing. However, most experts are concluding that the decision has far greater impact than to prohibit enhancements.
An emerging consensus is developing that under Blakely the federal sentencing guidelines are facially unconstitutional. Click here to read a memorandum prepared by Professor Frank Bowman, Indiana University School of Law, to the United States Sentencing Commission, June 27, 2004, reaching exactly this conclusion, and outlining his thoughts on the impact of Blakely on the sentencing guidelines. Two published federal district court decisions have already reached this result. See United States v. Croxford and United States v. Medas. The district judge who decided the Croxford case is reportedly a former law clerk to Justice Scalia, the author of the Blakely decision. The Medas case is particularly interesting, because in Medas the government asked the court to give the jury supplemental verdict forms that would have allowed the jury to determine all the pertinent guideline enhancements. The government cited Blakely for this request. The decision sets out the proposed verdict forms. The judge refused the government's request, pointing out one problem among many that the guidelines required the determination of most enhancements to consider relevant conduct, something that is not presented in trial for obvious evidentiary reasons. The government clearly has no one thinking out in any reasoned fashion its response to Blakely.
If this is a correct reading of Blakely many federal and Florida sentences will be subject to attack. [For a brief description of the principles governing the application of new court decisions, click here.] Some attorneys anticipated that the Supreme Court was about the strike down the guidelines. To see an example of Mr. Kent making a Blakely objection at a federal sentencing before the Supreme Court decided the case click here.
Predictably, the Department of Justice is
taking the position that Blakely does not affect the federal guidelines -
despite having argued to the contrary in their amicus brief in Blakely.
Click here to read the DOJ official policy memo.
In my opinion, DOJ is wrong. DOJ is also arguing for expansive readings of
factual bases that have already entered into. If you have a factual basis
issue you may want to look at an old Supreme Court decision on factual bases and
the guidelines - Braxton v. United States.
The U.S. Supreme Court will soon decide whether to resolve the confusion over the constitutionality of the federal sentencing guidelines caused by the Court's Blakely decision. The Senate passed a concurrent resolution urging the justices to act "expeditiously" to end the sentencing inconsistency triggered by Blakely, and the DOJ filed two petitions for certiorari on the issue. August 2, 2004 the Supreme Court granted certiorari (meaning they accepted for review and decision) two cases, Booker and Fanfan, one from the Seventh Circuit and one from the First Circuit, which will be used to decide the federal sentencing guidelines questions. Oral argument was set for October 4, 2004 and a decision will come sometime thereafter. Reports of the oral argument were unanimous in concluding that the five judge Blakely majority is standing firm against the federal guidelines, and all commentators concluded from the October 4, 2004 oral arguments that the court will strike down the guidelines, at least the enhancements, when it issues its decision in Booker and Fanfan.
For Breaking News
of the Latest Blakely Related Cases, Click
Here. To see a "scorecard"
that sets out the status of all Blakely cases as of August 2, 2004,
click here (Click your back button to return to this webpage.) Some
Eleventh Circuit cases follow:
July 8, 2004 the Eleventh Circuit in United States v. Spero, a government appeal of a 2255 motion in which the district court reduced a sentence under Apprendi from 20 to 5 years, the Eleventh Circuit held that Blakely does not affect imposition of a minimum mandatory sentence, at least so long as the minimum mandatory is not greater than the original statutory maximum.
July 9, 2004 the Eleventh Circuit held in In re Will Dean that Blakely is not retroactive for purposes of a successive 2255 petition.
Additional resources can be found at the Sentencing
Law and Policy Blog of Professor Berman and at the US
Law Guide Bulletin Board.
In the case of a federal sentence, it may be possible to apply Blakely to cases that are already final on appeal if the defendant has not previously filed a federal habeas under 28 U.S.C. Section 2255. Even if the defendant is outside the one year time limit for filing a 2255 petition, it may be possible to raise a Blakely challenge, if no prior 2255 motion has been filed.
If a person has a 2255 petition pending and it has not been ruled on, it should be amended to include a Blakely claim.
If a person has a direct appeal pending, it should be reviewed for the potential of supplemental briefing to raise the Blakely issue.
Obviously if a person has not yet been sentenced, a Blakely objection should be made to the PSI and at sentencing.
Contact our office for information on how we can assist you with your case. To see an example of a Blakely objection we made for a client before Blakely was decided, click here.
In the case of a Florida sentence, the error should be subject to review under Rule 3.800, irrespective of when the sentence was imposed, whether within or outside any two year time limit, because the error is a Mancino error that is, a patently obvious constitutional error that can be determined from the face of the record. This is so, because the record will contain the sentencing guideline scoresheet.
However, the First DCA, at least, disagrees, and has required a retroactivity finding even after Mancino. In ruling on an Apprendi objection to a guideline sentence that had exceeded the statutory maximum, the First DCA held that Apprendi was not retroactive and refused to allow the defendant to correct the sentence. The First DCA certified the question to the Florida Supreme Court in Hughes v. State, and the Supreme Court accepted the case January 2003 but no decision has been rendered. Hughes may determine the outcome of Blakely cases in Florida, at least until Blakely retroactivity is ruled on directly.
Florida has a body of case law that may be instructive for the application of Blakely, in the Heggs line of cases. In Heggs, the Florida Supreme Court held the 1995 Florida sentencing guidelines unconstitutional. Numerous cases after Heggs have analyzed the impact of the unconstitutionality of the 1995 guidelines on various sentencing scenarios. Generally it has been held that a person may be entitled to resentencing if the person can show, in the case of a plea agreement, that the sentence was negotiated in relationship to the guidelines. However, if the sentence in the plea agreement was negotiated independent of the guidelines, then the person is not entitled to resentencing. Even if the sentence was negotiated independent of the guidelines the person may still be entitled to move to set aside the plea under Rule 3.850, if the plea was entered into on the basis of defense counsel advice about the impact of the guidelines but for the plea agreement. In the context of a 3.800 motion, however, even if the person can show that the plea was negotiated in reliance on the guidelines, the person is not automatically entitled to resentencing. Instead, if the state can show that it gave up something for the negotiated plea, the state may be able to move to set aside, and be entitled to set aside the plea, if the defendant wants to insist on the constitutional challenge to the negotiated sentence.
As to direct appeal cases that are not yet final on review, Florida follows a variation of the federal Griffith v. Kentucky rule, that is, that so-called pipeline cases are subject to application of the new rule. The variation is that Florida courts say that the new rule only applies if a contemporaneous objection were made if one were required. In my opinion as to Blakely this would mean only that Blakely is subject to a plain error analysis, which I think it should satisfy.
Florida allows successive 3.800 motions so long as the motion is not an abuse of the writ, which should not be an issue on a new rule of constitutional law announced by the Supreme Court. This means that if a person has previously filed a 3.800 motion on some other ground, he or she will not be barred from filing a new 3.800 motion under Blakely. Even if by some chance the person had raised a Blakely argument in a prior 3.800 motion, they still would not be barred by collateral estoppel under the McBride rule.
On collateral attack generally, Florida is governed by the Witt rule. Witt is not the same as the federal Teague rule, but is similar. Substantive law changes apply retroactively, but constitutional procedural changes must meet the three prong Stovall v. Denno test. In my opinion Blakely will meet the Florida test for retroactive application on collateral review - if that is necessary - which it should not be given Florida's Rule 3.800 and Mancino.
Florida's sentencing system was dramatically altered effective October 1, 1998 by enactment of a new sentencing statute that permitted judges to impose any sentence up to the statutory maximum without stating a ground for departure, but required sentences to be not less than the guidelines unless the court could base the reduced sentence on a valid ground for departure. Prior to that date, judges in Florida had to impose guideline sentences absent a valid basis for departure. Clearly a sentence for an offense after October 1, 1998 that is set at the guideline minimum (assuming some enhancement) would be illegal under Blakely. It is not clear what impact Blakely will have on a sentence in excess of an unconstitutional guideline minimum. It may have no impact. However, analogous to the Heggs cases in which a plea was entered in reliance on bad guideline advice, it may be possible to challenge a plea even when the sentence was in excess of the guideline minimum. A trial guilty verdict and sentence in excess of a guideline minimum may not be subject to a Blakely attack. This and many other issues are uncertain at this time and will have to be developed by the courts in the coming months and years.
Please be aware that no one can predict
with certainty the ultimate effect Blakely will have on criminal
sentences and pleas. Until the courts of appeal develop the case law on
this new issue, any advice on the potential application of Blakely is
nothing more than an informed opinion - in other words, an educated guess.
Please do not make any decision about your case without consulting with an
attorney and even then bear in mind that until the case law is developed by the
courts of appeal any opinion of counsel will remain only a prediction of how the
law will develop. That prediction and the discussion above may turn out to
William Mallory Kent, Attorney at Law
1932 Perry Place
Jacksonville, Florida 32207