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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed.
Seven years ago, the Supreme Court held in Apprendi v. New Jersey that “[o]ther 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.” In 2004, the Court clarified the Apprendi rule by holding that “the �statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” It is probably no exaggeration to say that these two statements have generated more litigation over the last few years than almost any other language from the Court: By setting constitutional limits on a judge’s discretion to sentence, these decisions called into serious question the sentencing schemes of the federal government and of dozens of states. In its private conference May 24, the Supreme Court will consider whether to hear a case — Washington v. VanDelft, No. 06-1081 — that presents yet another wrinkle in the ever-evolving field of sentencing jurisprudence. The question in VanDelft is whether the decision to impose consecutive rather than concurrent sentences is one that a judge can make, or whether, instead, it is a question that Apprendi and Blakely repose in the jury. The issue is a significant one because the imposition of consecutive rather than concurrent sentences can have a substantial effect on a defendant’s overall time of incarceration. If a defendant convicted of multiple offenses receives several consecutive sentences, he will have to serve out each sentence one after another. In other words, any time that he spends in prison only reduces one of his sentences at a time. By contrast, if the defendant receives concurrent sentences, all of his sentences begin counting down simultaneously. Effectively, then, no matter how many concurrent sentences the defendant receives, his overall time of imprisonment will be no longer than his longest concurrent sentence. The defendant in VanDelft, William VanDelft, received multiple convictions in state court for various attempts to abduct young boys for sex. Two of those convictions were for attempted first-degree kidnapping; a third was for attempted second-degree kidnapping. Washington state sentencing law stated that the sentences for first-degree kidnapping “shall be served consecutively to each other.” By contrast, sentences for second-degree kidnapping “shall be served concurrently.” Importantly, though, the law goes on to state that consecutive sentences can be imposed in exceptional circumstances. The trial judge, in compliance with Washington law, imposed consecutive sentences on VanDelft for his two first-degree kidnapping convictions. With regard to VanDelft’s second-degree kidnapping conviction, the judge found that exceptional circumstances did indeed justify imposing a consecutive rather than a concurrent sentence: The judge held that a concurrent sentence would have been “clearly too lenient” because it “would fail to hold the defendant accountable for all of the crimes for which he was convicted, since he would serve no additional time for [the second-degree kidnapping conviction].” On appeal, the Washington Supreme Court reversed and remanded for resentencing. The court noted that Washington sentencing law contained a “statutory presumption of concurrent sentencing” for VanDelft’s second-degree kidnapping conviction, and that this “presumption” served as the relevant statutory maximum under Apprendi and Blakely. The trial judge unconstitutionally exceeded this maximum, the court held, when he nevertheless imposed a consecutive sentence on VanDelft based on a separate finding that a concurrent sentence would be “too lenient.” In Washington’s petition for certiorari, the state — represented by Spokane, Wash., prosecuting attorney Kevin Korsmo — argues that the Washington Supreme Court’s decision came out on the wrong side of a widespread and well-entrenched split on the question of whether Apprendi and Blakely “prohibit a judge from imposing consecutive sentences where the sentence imposed on each individual count was a sentence authorized by the jury’s verdict on that count.” The state notes that most state and federal courts — with the possible exception of Ohio — have read Apprendi and Blakely as inapplicable to findings of fact that authorized consecutive sentences. In response, VanDelft — represented by Sheryl Gordon McCloud of Seattle — raises two significant procedural reasons for the Supreme Court to deny certiorari. First, VanDelft argues that the Court lacks jurisdiction because there will be no final judgment until he is resentenced by the trial judge on remand. Second, VanDelft argues that the question posed has no ongoing significance because Washington sentencing law — like the law of many states in the wake of Blakely — has been revised so that, in the future, consecutive sentences such as VanDelft’s will not be imposed absent a jury finding. On the merits, VanDelft argues that the Washington Supreme Court reached the right conclusion. VanDelft’s argument relies heavily on what he asserts is the unique nature of Washington sentencing law. Unlike other states, Washington does not give trial judges discretion to impose consecutive or concurrent sentences. Rather, Washington law mandates consecutive sentences for certain crimes — such as VanDelft’s first-degree kidnapping convictions — but requires concurrent sentences for other crimes, such as his second-degree kidnapping convictions. The only way that trial judges could depart from these “statutory presumptions” (at least under the old version of Washington sentencing law) was through judicial fact-finding — but it is precisely that kind of fact-finding that Apprendi and Blakely found unconstitutional. By characterizing Washington law in this way, VanDelft distinguishes Washington from other states that ostensibly conflict with the Washington Supreme Court’s decision, on the ground that those other states’ laws do not similarly create “statutory presumptions” of concurrent sentences. The Court may announce as early as May 29 whether it will hear the appeal. — Steven C. Wu
OTHER CASES UP FOR REVIEW INCLUDE THE FOLLOWING: • 06-989, Hall Street Associates v. Mattel (9th Circuit) Whether the Federal Arbitration Act precludes a federal court from enforcing the parties’ clearly expressed agreement providing for more expansive judicial review of an arbitration award than the narrow standard of review otherwise provided for in the act. • 06-1081, Granite State Outdoor Advertising v. Fort Lauderdale (11th Circuit) Whether overbreadth standing no longer operates to allow an applicant for a sign to facially challenge the lack of procedural safeguards in a sign permitting regulation. • 06-1188, Teck Cominco Metals v. Pakootas (9th Circuit) Whether the Comprehensive Environmental Response, Compensation, and Liability Act (and, by extension, other American environmental laws) can be applied unilaterally to penalize the actions of a foreign company in a foreign country undertaken in accordance with that country’s laws. • 06-1287, CSX v. State Board of Equalization of Georgia (11th Circuit) Whether, under the federal statute prohibiting state tax discrimination against railroads, a federal district court determining the “true market value” of railroad property must accept the valuation method chosen by the state. • 06-1322, Federal Express v. Holowecki (2nd Circuit) Whether the “intake questionnaire” submitted to the Equal Employment Opportunity Commission may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.

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