William Mallory Kent (Photo)

Directions to Office

904-348-3124 Fax

An Analysis of Blakely v. Washington, Booker and Fanfan

January 12, 2005 the United States Supreme Court issued its decisions in Booker and Fanfan, the two initial cases interpreting the application of Blakely v. Washington to the federal sentencing guidelines.  Click here for a copy of the decisions in Booker and Fanfan.

What Booker and Fanfan decided is that the federal sentencing guidelines are no longer mandatory, that is, the judge must consider the guidelines as one of several factors under 18 U.S.C. Section 3553 in deciding what is an appropriate sentence, but they are just a factor to be considered, they are no longer binding on the judge and the judge may disregard the sentence recommended by the guidelines should he choose to do so based on any information that is presented at sentencing.  In other words, subject only to statutory restrictions apart from the guideline statute, such as minimum mandatory sentences, or crimes for which the law prohibits imposition of probation as a matter of separate statutory law, the judge may impose any sentence she chooses from probation to the statutory maximum.

A second aspect of the decision is that defendants (and the government) retain a right to appeal a judge's sentence, but the appellate review will be limited to a determination of the "reasonableness" of the sentence.  That the judge refused to follow the guidelines will not invalidate the sentence.

Booker/Fanfan and Cases Pending at the District Court

The application of Booker and Fanfan to cases pending at the district court, either pretrial, pre-plea, or pre-sentencing, is fairly simple and will follow the above rules.  That is, the judge can impose any sentence he chooses from probation up to the statutory maximum.  The only additional consideration to note, which is not mentioned in the decision, is that if a person pled guilty before Booker and Fanfan, he or she may now, should he or she choose, move to withdraw the guilty plea, on the basis that the plea was induced by advice from the court or counsel that the sentence would be determined by the sentencing guidelines, which is no longer the case. 

Blakely Waivers in Plea Agreements

If the plea had been entered pursuant to a written plea agreement with the government, the government may have attempted to have the defendant waive any Blakely claim, but in my opinion such a waivers will be ineffective or invalid, given that no one could have explained to the defendant what the waiver meant, because no one could have known what the court was going to say in Booker and Fanfan.  More importantly, a Blakely waiver only waives Blakely, and does not waive the decision in Booker and Fanfan, which goes beyond Blakely in making the guidelines advisory and not mandatory.  This same argument may be available for persons who are within time to file or amend a first federal habeas under 28 U.S.C. Section 2255. 

Booker/Fanfan and Substantial Assistance

One further note on the application of Booker and Fanfan to cases pending at the district court:  the effect of Booker and Fanfan on substantial assistance or attempts to do substantial assistance.  Except in the case of statutory minimum mandatory sentences, defendants will no longer be at the mercy of the United States Attorney's office in deciding to file or not file a substantial assistance motion.  The defendant can present on his own behalf at sentencing the efforts he made toward substantial assistance and the judge can reward such efforts irrespective whether the government agrees that it amounted to substantial assistance or not.  This is a great step forward for defendants and a terrific blow to the government. The only cases in which the defendant will be at the mercy of the government on substantial assistance will be minimum mandatory cases, because the judge cannot go below a minimum mandatory sentence without a motion from the government, but even there, once the government files a substantial assistance motion the judge will now be able to impose as low a sentence as he chooses without any binding regard for the lockstep reductions of the government's guideline reduction suggestion.

Booker/Fanfan and Cases on Direct Appeal, Certiorari or Habeas

At this point what many persons will want to know is how does this apply to cases (1) pending on appeal, (2) pending on certiorari, (3) pending a first 2255 habeas, or (4) to possible successive or belated 2255 habeases.

Booker/Fanfan and Cases on Direct Appeal or Pending Certiorari

The simple answer is that these new sentencing rules will apply to cases that are pending on direct appeal and pending on certiorari, entitling persons to resentencing, subject to one possible exception in my own circuit, the Eleventh Circuit. 

Defendants on appeal who have not already briefed Blakely, or who have briefed Blakely, but did not have the benefit of the ruling in Booker will need to file motions asking for supplemental briefing, or perhaps simply file a motion asking the court of appeals to remand the case to the district court for resentencing, and bypass the appellate process at least as to sentencing issues. 

The Supreme Court stated in Booker and Fanfan that cases on appeal will be subject to plain error and harmless error review.  Time will tell exactly what that means, but it is my opinion that unless a district judge stated on the record at sentencing that he would have applied the same sentence even if the guidelines were not binding, all guideline sentences will meet a plain error test and there cannot be harmless error.  There is already case law to the effect that when a judge misapplied the guidelines that even if he could have imposed the same sentence had he gotten the guidelines application right (that is, overlapping guideline ranges and a sentence imposed at a point in the overlapping ranges), then the case has to be remanded for resentencing.  I think this same principle applies to Booker.

Thus, everyone on direct appeal should be entitled to resentencing so long as the court will entertain a motion for supplemental briefing on Booker or will entertain a motion to remand for resentencing in light of Booker.

What can the judge do at resentencing?  Impose any sentence he chooses to impose - up or down. 

The Eleventh Circuit has applied a rule prohibiting supplemental briefing on Blakely.  It is not clear that this rule will continue given the mandate in Booker that courts consider the application of Booker/Fanfan to all pending cases on appeal.  The Eleventh Circuit has also ruled that Blakely is not plain error, but that decision is no longer binding because it was premised on the conclusion that Blakely did not apply to the federal guidelines.

Booker/Fanfan and an Initial Federal Habaes under 28 U.S.C. 2255

The application of Booker/Fanfan to a first habeas under 2255 is not as clear as its application to direct appeals, but my initial thoughts are that it will be available to any person who made a Blakely challenge on direct appeal but lost his appeal because the court of appeals refused to apply Blakely to the federal guidelines.

It may also be available in guilty plea cases if the person wishes to challenge the plea, and he may wish to do so, simply to trigger a new sentencing.  The argument would be that the plea was not a knowing and intelligent plea because the decision to plead guilty was made under the mis-advice of the court and counsel that the court had to apply the guidelines.  Think of all the people who pled guilty because the lawyer said that was the only way to get the reduction for acceptance of responsibility for example.

This same argument may be made in reverse for persons who went to trial - that is, the trial decision was made because if he pled guilty the judge had to impose the mandatory guidelines.  I think that these are in fact legally sound arguments, but I do not doubt that "conservative" courts will attempt to rationalize their way around such arguments.

If a habeas has been filed but not ruled on the merits, and the one year time limit has not expired, it should and could be amended to add one or more Booker/Fanfan arguments.

However, persons who did not raise Booker/Fanfan on direct appeal of a plea may be foreclosed from raising it at this time because the court has not made it retroactive.  Clearly arguments can, will and should be made that in fact Booker/Fanfan meets the retroactivity tests of Teague v. Lane, but this may be a hard argument to prevail on. 

Booker/Fanfan and Successive or Belated (After the One Year Time Limit) 2255 Habeases

Unless and until Booker/Fanfan is held to be retroactive the gateway test for a successive or belated 2255 cannot be met and it will not authorize a second or belated 2255.

Read more about William Mallory Kent, Federal Criminal Appeal Lawyer