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Federal judges, prosecutors and criminal defense attorneys will be watching the U.S. Supreme Court closely today when arguments begin on the future of the federal sentencing guidelines. In two cases to be argued on the first day of the Court’s new session, the justices will be asked to resolve the turmoil caused by their June ruling in Blakely v. Washington. While the government will defend the guidelines, a group of defense lawyers will be asking the Court to strike them on the ground that they violate the Sixth Amendment right to a jury trial by allowing sentence enhancements by judges based on findings under a preponderance of the evidence standard, rather than by juries under the standard of beyond a reasonable doubt. The possibility of eliminating the guidelines was raised by the Court’s decision to strike down Washington State’s sentencing scheme in Blakely, a decision that sent federal judges scrambling in several directions and led the 2nd U.S. Circuit Court of Appeals, among others, to implore the Court to clarify the state of the law. Monday’s arguments in the U.S. v. Booker and U.S. v. Fanfan have drawn amicus briefs from national defense bar groups who oppose the current sentencing scheme and U.S. senators who believe the guidelines are constitutional as an expression of congressional intent to have fair and uniform sentences throughout the nation. In New York, former Southern District Judge John S. Martin, a noted critic of mandatory minimum sentences, has filed an amicus brief with 18 fellow former judges, arguing that the federal guidelines are not doomed by Blakely because they differ in important respects from the Washington State scheme. Unlike Washington State, Martin argues in a brief assembled with his colleagues at Debevoise & Plimpton that federal guidelines do not set statutory maximum sentences that are exceeded by judicial fact-finding — “nor do the guidelines functionally alter the elements of federal crimes.” “Instead, the sentencing adjustments provided for by the federal Guidelines largely codify sentencing factors that judges have historically considered in imposing sentence,” he states. The former judges, who include the Southern District’s Abraham D. Sofaer, Louis J. Freeh, Kenneth Conboy as well as former Southern District and Second Circuit Judge Lawrence W. Pierce, argue that an equally important aspect of the federal guidelines is that they preserve a judge’s ability to depart from the sentencing range. They cite the Supreme Court’s opinion in Koon v. United States as articulating “the breadth of the judicial discretion inherent in the Guidelines, underscoring the indeterminate nature of the federal scheme as one that does not compel a judge to impose a particular Guideline sentence.” “The real core of it is — if you read the guidelines as having substantial discretion, which is what the Supreme Court said in Koon, then judges should not have to have a jury tell them what facts they can consider in exercising their discretion,” Martin said in an interview. On the opposite side is the New York Council of Defense Lawyers, an association of some 200 federal criminal practitioners, the vast majority of whom are former federal prosecutors. In a brief by Alexandra A.E. Shapiro of Latham & Watkins and Lewis J. Liman of Cleary, Gottlieb, Steen & Hamilton, the defense lawyers argue that the distinction between guideline ranges and the actual maximums set by Congress is formalistic. For all practical purposes, they say, the high end of the guideline range amounts to a statutory maximum and the discretion of a judge to depart does not eliminate the Sixth Amendment problem. The issue, Shapiro said in an interview, goes far beyond the benefit of having 12 jurors, as opposed to one judge, decide factors that can add meaningful length to a defendant’s sentence. The different standards of proof, and the common scenario wherein a defendant is acquitted on several counts but the underlying conduct of those counts is still used against him at sentencing, guts the guarantee that the elements of a crime must be proven beyond a reasonable doubt, she said. “It’s not only that the judge rather than the jury is making the decision,” she said. “It’s that there is a much lower standard of proof under the guidelines, which makes it easy for prosecutors to go to trial on conduct they can easily prove beyond a reasonable doubt — conduct that by itself would not lead to a particularly high sentence — and then simply rely on their ability to use a low standard of proof to get a much higher sentence based on alleged conduct they could not prove beyond a reasonable doubt.” And, Shapiro added, there is another problem in allowing prosecutors to prove a single crime at trial and then have years added to a sentence based on judicial fact-finding — it gives prosecutors a tremendous edge in plea negotiations. FUNDAMENTAL QUESTIONS The questions presented to the Supreme Court are: � Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the U.S. Sentencing Guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant. � If the answer to the first question is “yes,” the following question is presented: whether, in a case in which the guidelines would require the court to find a sentence-enhancing fact, the guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction. The Booker case raised only the first of those two issues. Defendant Freddie J. Booker was found guilty of possession of at least 50 grams of cocaine base with intent to distribute and distribution of cocaine base, which, along with his criminal record, would have resulted in a sentence of about 22 years. But the judge found by a preponderance of the evidence that he was responsible for 658.5 grams of cocaine base, and that he had perjured himself at trial. The judge imposed a 30-year prison sentence. The 7th Circuit cited Blakely in reversing the sentence because those facts were found by the judge and not the jury. Unlike Booker, the Maine district court judge in the Fanfan case addressed the second issue that the Supreme Court will be asked to decide — whether the guidelines must stand or fall as a whole or whether the unconstitutional judicial fact-finding aspects of the guidelines can be severed. For that reason the case bypassed the 1st Circuit on a writ of certioari before judgment. The other case involves Ducan Fanfan, who was found guilty in Maine of conspiracy to possess with intent to distribute and conspiracy to distribute at least 500 grams of cocaine. The trial judge held him responsible for 2.5 kilograms of cocaine and 281.6 grams of cocaine base and increased Fanfan’s offense level based on his role as a leader in the criminal activity — setting a sentencing range of 188 to 235 months. However, the trial judge then found Blakely applied to the guidelines and Fanfan could not be sentenced within the enhanced range. Under the guidelines range without the enhancements, 63 to 78 months, the judge gave him 78 months in prison. JUDICIAL DISCRETION In the government’s brief filed with the Supreme Court, Acting Solicitor General Paul D. Clement, argues that Blakely does not apply to the federal sentencing guidelines. Judicial discretion to consider both aggravating and mitigating circumstances has been part of sentencing since the birth of the Republic, Clement says, and the congressional power to set statutory maximum sentences has never been delegated to the judiciary. “In a series of cases, this Court has consistently recognized the distinction between facts that increase a defendant’s offense level under the Guidelines and facts that increase a statutory maximum, and it has consistently sustained a judge’s power to find facts that raise” the guidelines sentencing range, Clement states in the government’s brief. AGAINST SEVERABILITY The government comes down squarely against the severability of the guidelines, saying that preserving part of the structure would only cause chaos and raise an almost unanswerable question — how can the Supreme Court discern Congressional intent in assembling the federal sentencing scheme with the key element of judicial fact-finding removed from the equation? “If Blakely is held to apply to the Guidelines, the proper judicial response is to hold that the Guidelines as a whole are inapplicable in cases in which the Constitution would override the Guidelines requirement that the district court find a sentence-enhancing fact,” Clement writes. “Courts would then exercise sentencing discretion within congressional minimum and maximum terms, with the Guidelines providing advisory guidance.” The alternative, Clement states, would be a “hybrid” system of grafting jury-trial procedures onto the guidelines “that would not function in the manner intended by its creators (and in some cases could not function at all) … “ Neither the New York Council of Defense Lawyers nor the judges address the severability issue in their briefs, with both preferring to focus on the first question presented by the Court. But in a separate amicus brief, the National Association of Criminal Defense Lawyers said the Supreme Court should reject a solution that the guidelines should be treated as “advisory.” The group argues that federal sentencing “can be adapted to the requirements of the Sixth Amendment without eliminating the binding effect of the federal guidelines that Congress deemed essential to reduce sentencing disparities.” “The Court should instead require sentence-enhancing facts to be alleged in the indictment and proven beyond a reasonable doubt to the jury in a bifurcated sentencing hearing,” the association says. “The judge would determine an appropriate sentence within the Guidelines range that those facts generate.” Attorneys for Booker agree, saying in their brief, “The sentencing guidelines survive and apply, but the jury’s factual findings limit” Booker’s sentencing range under the guidelines.

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