DOJ Sends Out Blakely Memo to Prosecutors

Update: The Senate Judiciary Committee will hold a Blakely hearing July 13. Sen. Orrin Hatch will preside--not a good sign.

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 range. The government’s sentencing recommendation in all such cases should be that the court exercise its discretion to impose a sentence that conforms to a sentence under the Guidelines (including justifiable upward departures), as determined without regard to Blakely.

Here's the waiver prosecutors are urged to put in new plea agreements:

Prosecutors should immediately seek to obtain plea agreements that contain waivers of all rights under Blakely. The agreements should generally include provisions stating that the defendant agrees to have his sentence determined under the Sentencing Guidelines; waives any right to have facts that determine his offense level under the Guidelines (including facts that support any specific offense characteristic or other enhancement or adjustment) alleged in an indictment and found by a jury beyond a reasonable doubt; agrees that facts that determine the offense level will be found by the court at sentencing by a preponderance of the evidence and that the court may consider any reliable evidence, including hearsay; and agrees to waive all constitutional challenges to the validity of the Sentencing Guidelines. Prosecutors may agree to modified waivers or conditional plea agreements preserving certain challenges if such concessions are found necessary in a particular case.

Also, in pending cases, prosecutors are directed to get superseding indictments alleging all matters that:

allege all readily provable Guidelines upward adjustment or upward departure factors (except for prior convictions that are exempt from the Blakely and Apprendi rules).

They seem awfully certain that Blakely won't apply to prior convictions. We think there are some differences between Blakely and Summerlin and that retroactivity is an open issue until the Supreme Court decides it. The issue of the different standard of proof used by Judges and juries to determine upward adjustments and departures impacts other constitutional rights than just the right to a jury trial. What if the defendant raised the issue of the constitutionality of the judge making sentencing decisions on facts not presented to the jury in his direct appeal and/or habeas? It's not just a question of whether judge or jury decided, but that the standard of proof of preponderance of evidence was used instead of that of beyond a reasonable doubt. Couldn't that make Teague's retroactivity rule kick in? So stay tuned on this one.

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