DOJ Sends Out Blakely Memo to Prosecutors

By Jeralyn, Section Booker/Blakely
Posted on Tue Jul 06, 2004 at 09:46:41 AM EST
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Update: The Senate Judiciary Committee will hold a Blakely hearing July 13. Sen. Orrin Hatch will preside--not a good sign.

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Original Post

Courtesy of Law Professor Doug Berman of the blog Sentencing Law and Policy, we now have access to the memo DOJ circulated Friday (pdf) to federal prosecutors with Blakely guidance. The opening paragraph reads:

The position of the United States is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of the evidence standard, at sentencing. The government’s legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely.

Update: Here's another key paragraph, instructing prosecutors what to do if courts say Blakely applies to the federal sentencing guidelines:

First, the Guidelines remain constitutional and applicable if the Guidelines sentence can be calculated without the resolution of factual issues beyond the admitted facts or the jury verdict on the elements of the offense of conviction. Thus, in cases where a court, applying the Guidelines as they were intended, finds that there are no applicable upward adjustments under the Guidelines beyond the admitted facts or the jury verdict on the elements of the offense, the Guidelines are constitutional and should be applied. Second, in a case in which the defendant agrees to waive his right to resolution of contested factual issues under the Blakely procedural requirements, the Guidelines should be applied. Thus, waivers of “Blakely rights” in connection with plea agreements and guilty pleas may be sought. Third, in a case in which there are applicable upward adjustments under the Guidelines, and the defendant desires to contest the underlying facts under the Blakely procedures, the Guidelines system as a whole cannot be constitutionally applied. In that event, the government should urge the court to impose sentence, exercising traditional judicial discretion, within the applicable statutory sentencing rang