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The U.S. Supreme Court’s decision in Blakely v. Washington � in which the court has reopened the constitutional debate on the Federal Sentencing Guidelines � has the federal bar from coast to coast on edge. But federal prosecutors and criminal-defense lawyers in Texas have been given some room to breathe on the issue by a recent 5th U.S. Circuit Court of Appeals decision. On June 25 in a 5-4 ruling, the high court in Blakely struck down Washington state’s sentencing method and ruled that any aggravating facts that would increase a defendant’s sentence must be proven to a jury, not decided by a judge. [ See the opinion] Since Blakely’s release, federal circuit courts across the nation have been addressing whether the opinion applies to the Federal Sentencing Guidelines. Federal courts reacted quickly but differently in the wake of Blakely. For example, on July 12 in USA v. Penaranda and USA v. Rojas, the 2nd U.S. Circuit Court of Appeals certified three questions to the high court asking to what extent Blakely affects the Federal Sentencing Guidelines. Also on July 12 in USA v. Epis, the 9th U.S. Circuit Court of Appeals sent its first case back to the trial court to make rulings consistent with Blakely and appointed a committee to study sentencing issues that include the impact of Blakely. And on July 13, a U.S. district judge from Utah testified to Congress that four federal judges in that state has interpreted Blakely four different ways. Unlike other jurisdictions, Lone Star State criminal cases are unaffected by Blakely because Texas is one of the few states in the nation that allows juries to assess punishment. Texas does not have state sentencing guidelines other than general ranges of punishment for specific offenses. And on July 12 in USA v. Pineiro [ See the opinion], the 5th U.S. Circuit Court of Appeals ruled that Blakely does not apply to the Federal Sentencing Guidelines, therefore allowing U.S. District Courts in Texas to approach guidelines the same way they had before Blakely. The 5th Circuit hears appeals of cases from Texas, Louisiana and Mississippi. Pineiro’s case involved a routine appeal of a drug sentence imposed by a judge in a U.S. District Court in Louisiana. “This court assuredly will not be the final arbiter of whether Blakely applies to the federal guidelines, but the unremitting press of sentencing appeals requires us to produce a decision,” wrote Chief Judge Carolyn Dineen King in an opinion joined by Judges Rhesa Barksdale and Charles Pickering. “Having considered the Blakely decision, prior Supreme Court cases, and our own circuit precedent, we hold that Blakely does not extend to the federal guidelines and that Pineiro’s sentence did not violate the Constitution,” King wrote. What Blakely Says Blakely underscores and strengthens the court’s 2000 ruling in Apprendi v. New Jersey and could expand its scope to affect the Federal Sentencing Guidelines. The ruling is sure to accelerate the growing debate over the wisdom of sentencing reforms enacted over the last two decades. Apprendi struck down a New Jersey hate crime law that allowed judges to increase sentences in certain crimes to 20 years � double the usual statutory maximum. But Blakely said the Apprendi rule also applies to sentences that are above sentencing guidelines but below statutory maximums. In her dissent, Justice Sandra Day O’Connor said Blakely might spell the end of 20 years of sentencing reform by forcing states and Congress to scrap their sentencing guidelines. And if sentencing guidelines are abandoned, she warned, the system will end up with more judicial discretion and less uniformity in sentencing � the very problems that sentencing guidelines were meant to address. “The Court ignores the havoc it is about to wreak on the trial courts across the country,” wrote O’Connor, who read parts of her dissent from the bench. O’Connor said an “untold number” of sentences issued by state and federal judges since the Apprendi ruling could be open to attack in the wake of Blakely. “What I have feared most has now come to pass,” O’Connor lamented. “Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy.” In his majority opinion, Justice Antonin Scalia launched a broad attack on sentencing guidelines, although he said in a footnote that federal sentencing guidelines were not before the court and were, thus, not ruled on. Scalia said the court had a duty to protect the Sixth Amendment right to a jury trial from excessive government regulation. “The very reason the framers put a jury trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury,” Scalia wrote. In the case before the court, Blakely pleaded guilty to the 1998 kidnapping of his estranged wife, Yolanda. Under the plea agreement and under state sentencing guidelines, he was subject to a sentence within the “standard range” of 49 to 53 months. But the law also allowed the judge to add prison time, up to a maximum of 10 years, for aggravating factors. The judge sentenced Blakely to 90 months in jail � still below the 10-year maximum � because the crime showed “deliberate cruelty.” Blakely objected, but after a three-day hearing, the judge affirmed the extra sentence. State appeals courts upheld the sentence. Before the Supreme Court, the state of Washington asserted that the 90-month sentence did not violate Apprendi because it was still below the 10-year maximum for felonies in the same category. But Scalia said that was irrelevant, because in Blakely’s case “the judge . . . could not have imposed the exceptional 90-month sentence solely on the basis of the facts admitted in the guilty plea.” Scalia added, “It remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” The ruling may mean that any aggravating facts that could later lead to an additional sentence beyond guideline ranges will have to be stated in the indictment and proved to the jury. In her dissent, O’Connor said the federal sentencing guideline scheme, as well as the sentencing systems in Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Oregon and Pennsylvania have characteristics similar to those struck down in Blakely. But she said the impact could even be wider: “If the Washington scheme does not comport with the Constitution, it is hard to imagine a guidelines scheme that would.” Chief Justice William H. Rehnquist and Justices Stephen Breyer and Anthony Kennedy joined most of O’Connor’s dissent. In a separate dissent, Breyer also warned that the court’s ruling is “fraught with consequences that threaten the fairness of our traditional criminal justice system.” Kennedy, also writing separately, lamented that the ruling “shuts down” legislative alternatives and will diminish the dialogue between the judicial and legislative branches over sentencing. Some Response? While the Blakely issue is settled for now in Texas, it might not be long before the U.S. Supreme Court or Congress takes up the issue, says Ed Kinkeade, a U.S. district judge in Dallas who has also served as a state criminal district judge. “If the Supreme Court ever looked at it [the sentencing guidelines] again and threw it out wholly or partly, it would be a very different situation,” Kinkeade says. Any change to the federal sentencing system would likely make it more closely resemble Texas’ criminal court sentencing procedures, Kinkeade says. “Anybody that’s dealt with the Texas system understands what could happen,” Kinkeade says. “Congress, as hard as they’ve worked on sentencing guidelines, I’ll be surprised if they don’t have some response” to Blakely. Christie Williams, a Dallas criminal-defense attorney who represents clients in state and federal courts, hopes the Blakely decision is a sign that the high court is interested in addressing some of the inadequacies of the Federal Sentencing Guidelines. “The thing that I think is so shocking for people that don’t practice in federal court is how much information the courts use that isn’t proven beyond a reasonable doubt” in sentencing decisions, says Williams, a partner in Dallas’ Mills & Williams. “I do think that this decision is making people take a second look at the way the guidelines are used,” Williams says. “And a lot of people are wondering about whether we should have juries at least look at the facts that make up the sentencing process. Mike Uhl, an assistant U.S. attorney in Dallas who also has worked as a state prosecutor, says there are strengths in Texas’ sentencing system and the Federal Sentencing Guidelines. He says federal prosecutors will be prepared for any changes the Supreme Court or Congress may make to the guidelines. “In the state system, you loved arguing punishment. There was nothing better than arguing to a jury what to do with a defendant,” Uhl says. “But the federal system is a fair system and it’s equal throughout the country.” Fred Biery, a U.S. district judge in San Antonio who has been critical of the sentencing guidelines in the past, hopes the controversy over the Blakely decision will give U.S. district judges more discretion in issuing upward and downward departures on the sentences they assess to criminal defendants. “But I’m not of the opinion that we should completely do away with any guidance at all,” Biery says. “Because then you go back full circle to the reason why we have the guidelines to begin with,” where judges assessed widely different sentences for the same type of offense, Biery says. If federal juries eventually are responsible for making sentencing decisions, it would not cause much concern to Kinkeade. If federal juries can handle making decisions in complicated patent infringement cases, they can handle sentencing decisions in criminal cases, he says. “A lot of people are very much afraid of juries setting punishment,” Kinkeade says. “But for me, I think juries are the conscience of the public.” John Council’s e-mail address is [email protected]. Tony Mauro is the U.S. Supreme Court correspondent for American Lawyer Media and Legal Times , a Washington, D.C., affiliate of Texas Lawyer .

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