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Washington-The U.S. Supreme Court this week will take up two cases with the potential to revolutionize federal sentencing. The justices will hear an unusual two-hour argument in two consolidated and expedited cases brought by the government to answer whether the Federal Sentencing Guidelines run afoul of the Sixth Amendment. U.S. v. Booker, No. 04-104; U.S. v. Fanfan, No. 04-105. The government moved swiftly to bring the question before the high court after the justices’ ruling last June in Blakely v. Washington, 124 S. Ct. 2531. In that decision, a 5-4 majority held that Washington state’s sentencing system violated the Sixth Amendment because it permitted a judge to enhance a sentence based on certain facts-other than a prior conviction-that had not been found by the jury or admitted by the defendant. The Blakely ruling immediately triggered debate over its implications for the federal sentencing guidelines which, like the Washington system, allow judges to increase sentences after finding certain factors. Federal district and appellate courts issued a series of conflicting rulings around the country on whether Blakely applies to the guidelines. Conventional wisdom among many sentencing scholars, defense lawyers and even former prosecutors says that there is no real distinction between the Federal Sentencing Guidelines and the state sentencing system struck down by the high court. But conventional wisdom falls apart over what exactly the justices may or should do this term if they find the same constitutional flaw in the federal guidelines. “I think it’s pretty tough to distinguish the federal guidelines from the Washington guidelines that the court struck down in Blakely,” said sentencing scholar Susan Herman of Brooklyn Law School. “Unless there is a justice who changes his or her mind and is persuaded by Justice [Stephen] Breyer’s plea for practicality [in his Blakely dissent], I think there is no viable distinction to be drawn.” It is hard to distinguish the two systems, agreed former U.S. Attorney Roscoe C. Howard Jr. of Washington’s Sheppard, Mullin, Richter & Hampton. “But I just can’t believe what the court meant to do was to open up the floodgates. The guidelines are Congress saying, ‘We don’t trust you, judges, to consider proper factors. We’re going to do it for you.’ It was not meant to be anything more than that.” Continuing revolution The court’s decision in Blakely was another step in the justices’ ongoing revolution in sentencing begun in 2000 with Apprendi v. New Jersey, 530 U.S. 466. The 5-4 majority held that a judge-enhanced sentence violated the Sixth Amendment and due process because it was inconsistent with the principle that, other than the fact of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The court built on Apprendi in Ring v. Arizona, 536 U.S. 584 (2002), when it struck down Arizona’s death penalty law because it allowed the sentencing judge, not the jury, to find aggravating factors that made a defendant, convicted of first-degree murder eligible for the death penalty. In Blakely, the defendant had pleaded guilty to kidnapping, carrying a maximum guideline range of 53 months. The sentencing judge increased the sentence to 90 months after finding the defendant had acted with “deliberate cruelty,” a statutory ground for departing from the guideline range. Justice Antonin Scalia, writing for a divided court, held that the sentence violated the defendant’s Sixth Amendment right to jury trial because the factor supporting the enhanced sentence had neither been admitted by the defendant nor found by the jury. Scalia rejected the state’s argument that the “statutory maximum” was the 10-year maximum set out for the offense in the state’s statutes, and not the standard guidelines term. He said the relevant “statutory maximum” is the maximum sentence a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. In the high court cases, Freddie Booker was convicted of two drug crimes by a jury. The federal guidelines’ sentencing range for those crimes was 240 to 262 months, but the sentencing judge departed upward to 360 months based on certain facts. The 7th U.S. Circuit Court of Appeals reversed the sentence on the basis of Blakely. Duncan Fanfan, also convicted of drug offenses, would have faced an enhanced sentence of 188 to 235 months if the judge had determined certain applicable factors. But the judge said that Blakely applied and sentenced him to 78 months. The government took an appeal to the Supreme Court before the 1st Circuit could review it. In the high court, the government makes two arguments: First, acting Solicitor General Paul Clement contends that Blakely does not apply to the federal guidelines because the guidelines do not create statutory maximums; the legislative branch creates statutory maximums. “Rather, [the guidelines] are the product of the Sentencing Commission, a body in the judicial branch,” Clement writes in his merits brief. “The functions that it does perform are those that have historically been carried out by sentencing judges: defining the aggravating and mitigating facts that should be taken in account in setting a sentence within the statutory range.” Clement argues the high court has “consistently” recognized the difference between facts that increase a defendant’s offense level under the guidelines and facts that increase a statutory maximum. If the court holds that Blakely does apply, the government argues that the guidelines should be inapplicable only in cases with Blakely factors, functioning as “advisory” to judges who will use their discretion to sentence within the statutory minimum and maximum, and should be mandatory in cases without those factors. The government estimates that about 65% of federal cases contain Blakely facts. Having juries determine sentencing factors, argues Clement, would “create a hybrid system that would not function in the manner intended by its creators (and in some cases could not function at all).” Jury fact-finders Booker’s counsel, T. Christopher Kelly of Kelly & Habermehl, in Madison, Wis., and Fanfan’s counsel, Rosemary Curran Scapicchio of the Law Offices of Rosemary Scapicchio in Boston, contend that the government has it wrong on the Sixth Amendment question and on how the court should handle the guidelines if they have the constitutional flaw. “Applying the Sixth Amendment gives more value to jury verdicts,” said Scapicchio. “It’s really a joke to try a case to a jury in federal court on the very limited facts that the government chooses to bring. The real battle is at sentencing. You don’t know what the government will bring in, what the witnesses will say, or if the sentence will increase.” In the high court, they argue there is no principled distinction between the judicial fact-finding held unconstitutional in Blakely and the judicial fact-finding that increased or would have increased sentences for Booker and Fanfan. Congress, they contend, retains direct control of the Sentencing Commission, so it doesn’t matter that the commission is located within the judicial branch. “The court attaches no significance to how the fact is labeled, but looks instead to the relationship of the fact to the proposed sentence,” said Kelly. “If the fact is necessary to a sentence, a defendant has the right to have the government prove the fact to a jury.” If the court finds the Sixth Amendment is violated, the two lawyers argue that neither the guidelines nor the Sentencing Reform Act is invalidated in its entirety. The guidelines remain operative so long as the fact-finder is a jury rather than a judge, they tell the court. “The government’s suggestion that the guidelines just be advisory in some situations and nonadvisory in others could not have been what Congress intended or Congress never would have passed the Sentencing Reform Act in the first place,” insisted Scapicchio. “While no scenario is going to be perfect, I believe our proposal comes closer to preserving the goals of the Sentencing Reform Act-uniformity, continuity of sentencing.” Having juries as sentencing fact-finders, she added, is “an onerous job but it’s doable and the government has done it not only after Apprendi, but right after Blakely in superseding indictments.” Taking sides Not surprisingly, given the potential implications, the two cases have drawn considerable amici interest. In some respects, as with briefs filed by the Washington Legal Foundation and Families Against Mandatory Minimums, supporting the defendants, these challenges represent an opportunity for moving sentencing reforms forward. The government has drawn support from the U.S. Sentencing Commission, U.S. senators Orrin Hatch, Edward Kennedy and Dianne Feinstein, and a group of former federal judges, led, surprisingly to some, by John Martin, who resigned from the Southern District of New York bench essentially over the micro-management of sentencing by Congress. The senators’ brief, written by former assistant to the Solicitor General Gregory G. Garre of D.C.’s Hogan & Hartson, is addressed primarily to Congress’ intent in enacting the guidelines and the reform act of 1984. “I think fundamentally the federal guidelines are structured differently in putting guideline-making authority into the judicial branch,” said Garre. “The guidelines and departure in Blakely were dramatic compared to the typical sorts of upward and downward movements within the sentencing guidelines.” The government has to defend the guidelines from a very practical perspective, added Sheppard Mullin’s Howard. “How can you have a sentencing scheme that is declared constitutional since 1989 and then all of sudden it’s unconstitutional?” he asked. “That’s the problem the government is having. It could wreak havoc on the system because everybody in prison, except for a small percentage, is there because of the guidelines. You have the potential to undermine all sentences. That can’t be the result you want.” Brooklyn Law School’s Herman, who believes the high court’s recent sentencing decisions are “on the right track,” thinks the sentencing system in Kansas may be the answer. In that state, the trial court can have the jury determine any aggravating factors during the guilt phase or at a separate upward-departure sentencing proceeding. Kansas’ system, say Blakely supporters, shows the sky will not fall if the guidelines are constitutionally flawed. “I don’t think anybody has a crystal ball at this point,” said Herman. “It would be wonderful if there were some way to preserve some of the beneficial aspects of the guidelines-reduction in disparity-yet at the same time preserve those values Apprendi and Blakely are trying to implement. I’m not sure that’s possible.” Coyle’s e-mail address is [email protected] nlj.com.

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