Zuckerman Spaeder LLP Forms Blakely Working Group

Case Alert: Blakely v. Washington

On June 24, 2004, the Supreme Court decided Blakely v. Washington, 2004 WL 1402697, a decision with far-reaching implications for the federal criminal justice system. Blakely casts into doubt the validity of the United States Sentencing Guidelines ("Federal Guidelines") under which federal defendants have been sentenced since 1987. Thousands of cases will be affected, including cases pending trial, pending sentencing, on appeal, and post-appeal. Additionally, Blakely significantly changes the landscape for pending indictments and for negotiating plea agreements.

The Supreme Court's Decision

The defendant in Blakely pleaded guilty to second-degree kidnapping in Washington State. A state statute provided that the maximum sentence for that offense was 10 years' (120 months') imprisonment. Another statute established a grid of "standard" sentencing ranges - very similar to the Federal Guidelines - based on the seriousness of the offense and the defendant's criminal history. The statute also authorized a sentencing court to depart upward from the standard range and impose a sentence up to the statutory maximum, if it found compelling reasons warranting an exceptional sentence. Among such reasons was the fact that the defendant acted with "deliberate cruelty." The defendant's standard sentencing range was 49 to 53 months' imprisonment, but the sentencing court found that he had acted with "deliberate cruelty" and departed upward, sentencing him to 90 months' imprisonment.

In a 5-4 decision authored by Justice Scalia, the Supreme Court held that Blakely's sentence violated the Sixth Amendment because the upward departure was based on facts that were "neither admitted by petitioner nor found by the jury." Id. at *4 (citation omitted). Reaffirming Apprendi v. New Jersey, 530 U.S. 466 (2000), Justice Scalia said that "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." Id. Significantly, Justice Scalia went on to state that "the 'statutory maximum' for Apprendi purposes is the maximum sentence the judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant." Id. (emphasis in original). Thus, although the kidnapping statute in Washington State allowed for a maximum sentence of 10 years, the true "statutory maximum" was 53 months - the top end allowed by the state's guidelines. Id. at *5.

Blakely's Application To The Federal Sentencing Guidelines

While the Supreme Court expressed no opinion on the constitutionality of the Federal Guidelines, there is a growing consensus that Blakely will apply to the Federal Guidelines, given the lack of a meaningful distinction between the Federal Guidelines and the Washington State sentencing system invalidated in Blakely. The dissenting opinions in Blakely predict this result, and several federal judges have already reached this conclusion. See, e.g., United States v. Booker, No. 03-4225 (7th Cir. July 9, 2004) (Opinion by Posner, J.). But see United States v. Pineiro, No. 03-30437 (5th Cir. July 12, 2004) (holding Blakely does not extend to the Federal Guidelines).

Blakely's application to the Federal Guidelines creates uncertainty for judges, prosecutors, defense attorneys, and legislators, all of whom are attempting to assess and make sense of an evolving, and often confusing, judicial landscape. Defense attorneys across the United States are quickly developing strategies to address Blakely's impact on plea agreements, jury trials, appeals, and collateral challenges under 28 U.S.C. § 2255. There is a potential benefit to numerous defendants, given that Blakely requires that a jury must find, beyond a reasonable doubt, any fact that would enhance a sentence beyond the statutory maximum.

The Department of Justice has quickly responded by, among other things, directing prosecutors to obtain "Blakely waivers" from defendants in plea negotiations and to include upward adjustment or upward departure factors in indictments and to obtain superseding indictments in cases pending prosecution. The Department has also urged prosecutors to request, if necessary, that upward adjustment or upward departure factors be submitted to juries as special findings of fact.

Crucial issues remain unresolved: Have the Federal Guidelines been invalidated by Blakely or are only certain fact findings by judges now prohibited? Can Blakely be applied retroactively? How will the process of proving guideline factors to juries work in practice? Is the bifurcation of trials a reasonable solution? Will a more complex jury verdict form be required?

Zuckerman Spaeder's Blakely Working Group

Zuckerman Spaeder attorneys are closely monitoring the judicial and legislative developments across the United States in order to find the answers and to provide the best legal advice to our clients in light of Blakely. In doing so, we are able to draw upon our extensive experience as former federal prosecutors, former public defenders, and criminal litigators. The firm has established a Blakely Working Group and a Blakely Database to create a central repository for all Blakely-related materials, including judicial decisions, pleadings, plea agreements, and academic literature. We are also in constant contact with other members of the defense bar and are actively contributing to help shape legal and legislative responses to Blakely.