In Wake of
Ruling, Disarray Plagues Federal Sentencing
Supreme Court's June Verdict Leaves Judges Confused; Some Issue Two Decisions
By LAURIE P. COHEN Staff Reporter, The Wall Street Journal
NEW YORK (Dec. 28) - At Manhattan's federal courthouse,
Judge Shira Scheindlin has had a new policy since August: She doesn't
sentence any defendants unless they ask for it. Three floors down, Judge
Jed Rakoff has a different but equally unusual policy: He gives every
defendant two sentences, based on two different sets of rules.
Disarray has envelopd the federal court system for the past six months
since a Supreme Court ruling hinted that the guidelines governing federal
sentences may be unconstitutional. As federal judges wait, and wait some
more, for the divided high court to deliver a final verdict, they have
come up with a myriad of ways to sentence defendants.
"To the general public, this signifies a criminal justice system
run amok," says J.P. Stadtmueller, a federal judge in Milwauke.
The Supreme Court ruling on June 24 in the Blakely v. Washington case
struck down a system used in the state of Washington that guides judges
to boost sentences based on exacerbating factors in a crime -- for example,
that the defendant played a leadership role. The Supreme Court said it's
unconstitutional to do this unless the defendant has admitted to the exacerbating
factor or it has been found true by a jury beyond a reasonable doubt.
While the court's ruling technically applied only to Washington state,
many lawyers and judges believe it effectively makes the federal sentencing
guidelines unconstitutional too, since they're similar to Washington's.
The Supreme Court is now hearing two cases involving the federal guidelines,
which are used to sentence 60,000 defendants a year. Many expected the
high court to rule this year, but it didn't. The earliest next possible
decision date is Jan. 11.
If the Supreme Court rules that its verdict in Blakely applies to the
federal guidelines as well, many legal experts expect it to strike down
the entire guidelines system. Another option would be to throw out only
those parts of the guidelines that deal with sentencing "enhancements."
In the meantime, federal appeals courts have given varying instructions
to district courts. Some have ordered district judges to carry on as if
nothing has changed. Two appeals courts have ruled the exact opposite:
They say the federal guidelines are now unconstitutional until further
notice and judges shouldn't follow them as written. Still others say it's
up to the individual judge.
The Second Circuit, which includes New York, is one of those that has
ordered district judges in the circuit to keep using the federal guidelines
until the Supreme Court makes up its mind. In Manhattan, Judge Scheindlin
has refused. "The Second Circuit was telling me to act as if June
hadn't come and I said I just can't do that," she says. Her solution:
For the time being, sentence no one.
Sentencing under the guidelines requires judges to do considerable work
to figure out which "enhancements" apply to a defendant. If
the Supreme Court shoots down the guidelines, Judge Scheindlin notes,
all that work would be wasted. "Who wants to do it again?" she
asks. When a defendant agrees, judges can defer sentences indefinitely.
So long as the defendant is in jail awaiting sentencing, this is usually
fine with prosecutors. In one case a defendant asked Judge Scheindlin
to be sentenced right away, but the others were willing to wait because
they figured the guidelines could be struck down and they would have a
better shot at a light sentence later.
For his part, Judge Rakoff thought about putting off sentencing but worried
that he'd be stuck with a huge backlog. "If you put off 15 sentences,
that's eight days' work," he says. He is issuing one sentence that
assumes that the guidelines will remain in effect and another that will
take effect if they don't. For the moment, it's the first sentence that
counts.
Many judges have long criticized the guidelines, calling them too rigid
and harsh, and welcome the chance to use their discretion. Federal Judge
Bill Wilson in Little Rock, Ark., says drug penalties are "far too
severe" in many instances. His circuit hasn't ruled on the constitutionality
of the guidelines, thus giving him leeway to sentence outside of them.
In several recent drug cases he has given lighter sentences than the guidelines
would prescribe. However, in another recent case involving a defendant
who dumped waste into a stream, Judge Wilson issued a sentence that was
tougher than the one called for by the guidelines. Judge Wilson also issues
sentences that presume the guidelines are constitutional. He says that
about two-thirds of the time, the two sentences are very similar.
In California, which is in one of the two circuits that has ruled the
federal guidelines unconstitutional, one high-profile defendant reaped
a windfall. Richard I. Berger, the former chief executive of Craig Consumer
Electronics, was convicted of bilking banks and investors by presenting
false financial figures. Los Angeles federal prosecutors recommended a
sentence of more than eight years, alleging that Mr. Berger played a leadership
role in the fraud and was responsible for millions of dollars in losses
to investors.
But Judge Robert Takasugi said he was "constrained" from boosting
Mr. Berger's sentence because of these factors, which the jury hadn't
ruled on. He sentenced Mr. Berger in September to just six months in prison.
The hope for leniency extends to prisoners who have already been sentenced
under the federal guidelines. If the Supreme Court rules that the guidelines
are unconstitutional it might also order that the ruling be applied retroactively,
meaning some prisoners could try to get their sentences reduced.
Deluged by prisoner questions, the Federal Bureau of Prisons issued a
list of "talking points" this month. "You are probably
aware" of the coming Supreme Court ruling, wardens are advised to
tell inmates. "It is essential that you understand nothing will happen
automatically with your case as a result of the Supreme Court's decision."
Instead, the memo explains, any revision of sentences would be up to individual
sentencing courts.
If the federal guidelines are judged unconstitutional, one suggested fix
is to have juries rule on all the factors that can enhance a sentence.
As a temporary measure, the Justice Department has urged federal prosecutors
to include these sentencing factors in their indictments.
Ellyn Marcus Lindsay, an assistant U.S. attorney in Los Angeles, is spending
days rewriting old indictments to conform with the Justice Department's
recommendation. "For six months, I've been dealing with the mess
that Blakely created," she says.
In Sioux Falls, S.D., Chief Judge Lawrence L. Piersol says he is asking
juries to find drug quantities and that is "simple for them."
But financial fraud cases are another matter. Judge John C. Coughenour,
chief judge of the Western District of Washington, yesterday completed
an eight-week trial involving 87 counts of tax evasion and other fraud.
The jurors came back with guilty verdicts against six defendants. "It's
not going to be a simple task for a jury to conclude how much the tax
loss was," says Judge Coughenour.
In parts of the country where the guidelines are still in effect, one
tactic of prosecutors is to press defendants to sign "Blakely waivers"
along with a guilty plea. This waiver adds an extra layer of security
to the standard pledge in which the defendant promises not to contest
the sentence resulting from the guilty plea. The waiver says that even
if the Supreme Court rules the guidelines unconstitutional, the pledge
still holds -- in other words, that the defendant can't use a high court
ruling as an excuse to contest his sentence.
New York defense lawyer Robert Morvillo, who represented Martha Stewart
in her criminal trial this year, balked when Brooklyn federal prosecutors
asked one of his clients to sign a Blakely waiver in a recent tax-evasion
case. "What if the Supreme Court declares the guidelines unconstitutional?"
Mr. Morvillo says he responded. "How can you force a judge to sentence
under an unconstitutional sentencing system and me to waive my client's
rights? That would be malpractice." Mr. Morvillo successfully persuaded
prosecutors to allow him to challenge the sentence if the Supreme Court
declares the guidelines unconstitutional.
Roslynn Mauskopf, the U.S. attorney in Brooklyn, says defendants waive
many rights when they plead guilty, including the right to a jury trial,
and there is nothing special about waiving the right to appeal a sentence
if the law changes. She notes that the Justice Department has encouraged
prosecutors to seek Blakely waivers.
One of the nation's busiest federal courtrooms is in Laredo, Texas, where
Judges Keith Ellison and George Kazen together sentence about 2,800 defendants
a year, mostly on drug or alien-smuggling charges. The appeals court of
the Fifth Circuit, which includes Texas, is one of those that has directed
judges to rule as if nothing has changed.
By 9 a.m. on a recent Wednesday, the third-floor courtroom in Laredo's
new federal courthouse was packed with prosecutors, lawyers, handcuffed
defendants and family members. Many of the defendants faced significant
extra prison time because of enhancements based on the amount of drugs
they smuggled or the number of aliens they tried to ferry across the border
with Mexico, which is right across the Rio Grande from Laredo.
Public defenders in the region have been challenging the use of these
enhancements based on the Supreme Court's Blakely ruling. Judge Ellison
politely but firmly dismissed each challenge as he sentenced 14 defendants
in just over three hours. "In our circuit, the guidelines are constitutional,
so while your objection is noted for appeal, it is overruled," he
told defendants and their lawyers.
Still, says Laredo defense lawyer Oscar O. Pena, "right now, if you're
not making a Blakely objection, you're not doing your job." It's
especially important, he says, "in situations where we know intuitively
that we wouldn't punish a guy as much as the guidelines do."
On this day, Mr. Pena was representing a 19-year-old drug addict who was
arrested in a warehouse that held four tons of marijuana. The young man
claimed he had been hired to package the drugs. While out on bond, he
failed a routine drug test. Fearful of being imprisoned before his sentencing,
he cut off his electronic monitor bracelet and fled to Mexico. Days later,
he returned and turned himself in to authorities in Laredo.
Judge Ellison ruled that the defendant's role in the marijuana distribution
scheme was a minor one. Nonetheless he sentenced the defendant to three
years and 10 months in prison, as the guidelines mandated. Mr. Pena thinks
he might be able to get that reduced if the guidelines are overturned.
Judge Ellison says he often used to issue sentences below the range recommended
in the guidelines. But last year a law called the Feeney Amendment passed
by Congress demanded that judges who "depart downward" explain
their rationale to the Justice Department in writing. Judge Ellison says
he now departs downward only when prosecutors recommend it. In other cases,
he typically sentences at the low end of the guidelines range.
One particularly thorny case involved 24-year-old Manuel De La Fuente,
who pleaded guilty to possessing and intending to sell about 220 pounds
of marijuana. While his sentencing for that crime was pending, he escaped
from a San Antonio jail, only to be recaptured. The federal guidelines
called for Mr. De La Fuente's drug sentence to be boosted because he obstructed
justice by escaping -- even though he faced separate charges for the escape
in San Antonio.
Homero Martinez, Mr. De La Fuente's lawyer, argued that it was unfair
to punish his client twice for the escape. That argument prompted Judge
Ellison to wonder aloud how such cases might be handled if the Supreme
Court strikes down the federal guidelines in line with its Blakely ruling.
"It really does raise an interesting Blakely question," he mused.
"I'm wondering, under Blakely, what we do about post-indictment conduct.
Would it have to be subject to a new indictment?"
Then the judge returned to the real world of the Fifth Circuit. He concluded
that Mr. De La Fuente should have his prison time extended because of
his escape and handed down a sentence in line with the prosecutors' request:
10 years and five months.
"We're going to proceed with this sentence today," Judge Ellison
said. "But if the Supreme Court intervenes, we may have to revisit
it."
UPDATE
January 13, 2005
THE OVERVIEW
Supreme Court Transforms Use of Sentence Guidelines
By LINDA GREENHOUSE
ASHINGTON, Jan. 12 - The Supreme Court on Wednesday transformed federal
criminal sentencing by restoring to judges much of the discretion that
Congress took away 21 years ago when it put sentencing guidelines in place
and told judges to follow them.
The guidelines, intended to make sentences more uniform, should be treated
as merely advisory to cure a constitutional deficiency in the system,
the court held in an unusual two-part decision produced by two coalitions
of justices.
In the first part, five justices declared that the current guidelines
system violated defendants' rights to trial by jury by giving judges the
power to make factual findings that increased sentences beyond the maximum
that the jury's findings alone would support.
That portion of the opinion had been widely anticipated, growing directly
out of a similar conclusion the same five justices - John Paul Stevens,
Antonin Scalia, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg
- reached last June in invalidating the sentencing guidelines system in
the state of Washington.
The real question hanging over the case, which the court granted on an
expedited basis over the summer and heard in October on the opening day
of its new term, was how the justices would solve the problem.
So it was the second part of the decision - the remedy - that was the
surprise and that will shape the continuing debate over sentencing policy.
With Justice Ginsburg joining the four justices who dissented from the
first part - Stephen G. Breyer, Sandra Day O'Connor, Anthony M. Kennedy
and Chief Justice William H. Rehnquist - a separate coalition said the
problem could be fixed if the guidelines were treated as discretionary
rather than mandatory.
From now on, Justice Breyer said, writing for the majority in this portion
of the decision, judges "must consult" the guidelines and "take
them into account" in imposing sentences. But at the end of the day
the guidelines will be advisory only, with sentences to be reviewed on
appeal for "reasonableness." Lawmakers and legal experts predicted
Wednesday that the court's decision would renew the struggle between Congress
and the judiciary for control over sentencing. On Capitol Hill, some members
of Congress made it clear that they were bracing for a fight over how
much discretion federal judges should have. [Page A29.]
The decision leaves many unanswered questions and much work for the federal
courts of appeals. It is in the appeals courts that its real meaning will
emerge, as those courts handle sentencing appeals and build a body of
law evaluating the "reasonableness" of sentences.
Thousands of federal defendants who have been sentenced since the decision
in the Washington State case have effectively been in limbo awaiting clarification
of the situation. People whose sentences are still on appeal will be immediately
affected by the ruling.
The guidelines provide judges with a grid with the offense for which the
defendant has been convicted on one axis and the offender's history and
other details on another. The grid gives the judges a range of possible
sentences and the system instructs them to go above that range if they
make certain factual findings. It was this mandatory aspect of the system
that was at issue in the case.
The remedy devised by Justice Breyer's five-member majority had not been
proposed by any party, although the Justice Department suggested a form
of advisory guidelines as a fallback position to its defense of the system's
constitutionality. Christopher A. Wray, an assistant attorney general,
said Wednesday that the department was relieved to see the guidelines
remain in place but concerned that sentencing disparities might increase
now that they were no longer mandatory.
The decision, United States v. Booker, No. 04-104, had its roots in a
series of intensely disputed sentencing rulings that began with Apprendi
v. New Jersey in 2000. In a series of cases, the court has held that given
the Sixth Amendment right to trial by jury, judges cannot impose sentences
beyond the "prescribed statutory maximum" unless the facts supporting
such an increase are found by a jury beyond a reasonable doubt.
Under that analysis, the constitutional cloud over federal criminal sentencing
derived from the mandatory nature of the guidelines, which instruct judges
to consider various facts, like a defendant's leadership role in a criminal
enterprise, and to increase sentences beyond the guidelines accordingly.
The court made it clear in the Washington State case last June that the
top of an ordinary guideline range was the equivalent of a statutory maximum.
But if judges simply exercise their traditional sentencing discretion,
advised by guidelines but not bound by them, the defendant's Sixth Amendment
right is not implicated, a conclusion on which all nine justices agreed
on Wednesday. In other words, as judges' flexibility grows, defendants'
Sixth Amendment protections shrink.
The dispute on the court was not over that paradoxical proposition, but
rather over how Congress would have chosen to proceed if it had known
of the Sixth Amendment issue when it put the guidelines system in place
in the Sentencing Reform Act of 1984. When the Supreme Court finds a statute
unconstitutional, the court's next step is to see whether there is a solution
consistent with the legislators' original intent.
Dissenting from the remedy portion of the decision, Justice Stevens, with
Justices Souter, Scalia and Thomas, said in effect that the last thing
Congress would have done would be to give judges back the power that the
guidelines were intended to constrain.
Rather, the dissenters said, if the problem was a violation of the right
to trial by jury, the solution also lay with the jury: to require prosecutors
to make indictments more specific and to present to the jury any factor
that would increase a sentence beyond the ordinary range. Justice Stevens
said that in avoiding this solution and instead changing the nature of
the guidelines themselves, it was "clear that the court's creative
remedy is an exercise of legislative, rather than judicial, power,"
one that "violates the tradition of judicial restraint."
Justice Breyer insisted, however, that his was the solution that "would
deviate less radically from Congress's intended system." He said
that to make jury findings the basis for sentencing would shift too much
power to prosecutors and "undermine the sentencing statute's basic
aim of ensuring similar sentences for those who have committed similar
crimes in similar ways."
Justice Breyer spoke with some authority; as chief counsel of the Senate
Judiciary Committee in the 1970's, he played a leading role in the passage
of the Sentencing Reform Act and later was a member of the United States
Sentencing Commission. He had been on the losing side of the Apprendi
decision and the subsequent rulings.
Though the outcome Wednesday was not one he would have wished - he argued
in dissent from the first part of the decision that guidelines were different
than statutes and that the analysis of the earlier rulings should not
apply - the decision was in some ways a personal triumph. The Sentencing
Commission remains intact and the guidelines are still on the books, with
the presumption that most judges will follow them most of the time.
The mystery in the case was Justice Ginsburg, who joined the Stevens group,
as she consistently has, in applying the Sixth Amendment to the guidelines.
She then provided Justice Breyer with his fifth vote to preserve the system's
architecture. She did not write a separate opinion to explain herself.
The court took considerably longer on the case than had been expected.
Many people thought a decision would be out by Thanksgiving, and it is
possible that Justice Ginsburg's vote, and therefore the outcome, was
in play until late in the process.
The portion of Justice Breyer's opinion that dealt with appeals had the
effect of overturning a 2003 Congressional amendment to the sentencing
law that instructed appeals courts to give no deference to the decisions
of trial judges when reviewing sentences shorter than those called for
by the guidelines. That provision, known as the Feeney Amendment for its
sponsor, Representative Tom Feeney, Republican of Florida, was an expression
of Congressional impatience with the judiciary and in turn angered many
federal judges.
It was not clear Wednesday whether Freddie J. Booker and Ducan Fanfan,
the two defendants in the case before the court, would benefit from the
ruling. Mr. Booker, convicted in Federal District Court in Madison, Wis.,
of possessing 50 grams of cocaine base, received an extra 8 years on a
22-year sentence when the judge found that he had distributed 10 times
that amount.
After Mr. Fanfan was found guilty by a jury in Portland, Me., of distributing
500 grams of cocaine, the judge refused the government's request to increase
the sentence, predicting that the Supreme Court would soon find the guidelines
unconstitutional. Both defendants will now go back to district court for
possible resentencing, with an appeal available to both sides.
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